HomeMy WebLinkAboutCity Council Committees - Public Works/Planning - 03/01/2004 Public Works Committee Agenda
® Councilmembers: Debbie Raplee#Ron Harmon#Bruce White, Chair
KEN"1' March 1, 2004
Ww3 NINu`TON
5:00 P.M.
Item Description Action Speaker Time Page
1. Approval of minutes dated February 2, 2004. Yes None 05 1
2. Coordinated Prevention Grant—Authorize Yes Wickstrom 05 5
3, Pacific Hwy HOV Lanes Agreement with Yes Wickstrom 05 19
Metro Transit for Bus Shelter Pads—Authorize
4. 94t1i Ave S &S 248'h Sanitary Sewer Yes Wickstrom 05 37
Instrallation Charge in Lieu of Assessment—Authorize
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5. BNSF Indefinite Term Lease for Yes Wickstrom 05 41
Land Agreement—Authorize
6. PSE Agreement for S 228a'St. Yes Wickstrom 05 65
Underground Power Conversion--Authorize
7. Right of Way Quit Claim Deed for Yes Wickstrom 05 85
S 228" St./Russell Road-Authorize
8, WA Conservation Corps Agreement-Authorize Yes Wickstrom 05 93
9. King County Agreement for Construction of
Pioneer St. hnprovements—Authorize Yes Wickstrom 05 99
Unless otherwise noted,the Public Works Committee meets at 5:00 p.m.on the le`and 3"Mondays of each month.
Council Chambers East,Kent City Hall,220 4th Avenue South,Kent,98032-5895.
For information please contact Public Works at(253) 856-5500.
Any person requiring a disability accommodation should contact the City Clerk's Office at
(253) 856-5725 in advance.
For TDD relay service call the Washington Telecommunications Relay Service at 1-800-833-6388.
Pd,PublictAdministrrtive SnpportUinetTubhc Works Committee hfeetingsTW Agenda's\040301.doe
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PUBLIC WORKS COMMITTEE MINUTES j
February 2, 2004
COMMITTEE MEMBERS PRESENT: Chair Bruce White ,Ron Harmon, Debbie
Raplee
The meeting was called to order by Committee Chair Bruce White at 5:02 P.M.
Approval of Minutes of December 1, 2003
Committee Member Ron Harmon moved to approve the minutes of December 1, 2003.
The motion was seconded by Committee member Debbie Raplee and passed 3-0.
King County Waste Reduction &Recycling Program Grant
Public Works Director Don Wickstrom said this is a program that has been going on for
the past 11 years, paid for by county solid waste. This is a 2 year agreement the first of
these years is for the amount of$84,000. Don introduced Robyn Bartelt, Conservation
Specialist with the City of Kent. Robyn passed out brochures and information on the
events. The grants fund recycling events as well as helping businesses set up recycling
programs. The events are advertised in several ways, City staff members go to both
business and inulti-family locations to explain the events. There is information in several
different languages available and notices are mailed to all City residents 3 weeks prior to
the events. Rain pails and compost bins will be available for purchase at the events.
Ron Harmon moved to recommend the Council authorize the Mayor to sign the
Waste Reduction and Recycling Program Grant in the amount of$84,241, direct
staff to accept the grant and establish a budget for the funds to be spent within said
project. The motion was seconded by Debbie Raplee and passed 3-0.
Local Hazardous Waste Management Program Amendment#1
Robyn Bartelt, Conservation Specialist said this was the 2" year of this 2 year contract to
collect the hazardous side of the recycling items such as freon, scrap metal, propane
tanks, oil, anti-freeze etc. The grant money is used to pay vendors to come in and dispose
of materials collected. Part of the money also funds the King County Hazardous Waste
Mobile, the Kent site is one of the most heavily used sites in King County so there are
four or five events scheduled this year.
Debbie Raplee moved to recommend the Council authorize the Mayor to sign the
Local Hazardous Waste Management Program Amendment#1 in the amount of
$39,075.35, direct staff to accept the grant and establish a budget for funds to be
spent within said project. The motion was seconded by Ron Harmon and passed 3-
0.
S. 212t" St Pavement Rehab Project Fund Authorization Agreement
Public Works Director Don Wickstrom said the project is to overlay South 212`h from
West Valley Hwy to the Green River. Washington State Department of Transportation
Highways and Local Programs has authorized $388,828 in construction funds for the
restoration and rehabilitation funding for the S 212`l' St. Pavement Rehab. Project. The
funds are now available, Public Works needs authorization from the Mayor to accept the
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funds and establish a budget for the funds to be spent within the road improvement
project
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Ron Harmon moved to recommend authorizing the Mayor to accept the funding
agreement, authorizing staff to accept the funds establishing a budget for the funds
to be spent within said road improvement project. The motion was seconded by
Debbie Raplee and passed 3-0.
Upper Meridian Valley Creek Improvements Project Utility Relocation Agreement
Public Works Director Don Wickstrom said that when Meridian Valley area was annexed
there were several areas that would be inundated with water during a heavy rain, the
project is for the City to rebuild a culvert crossing on the Upper Meridian Valley Creek
eliminating this problem. According to the franchise agreement the utilities must be
relocated underground. The culvert will make the crossing "fish friendly". Ron Hannon
asked if a letter had been received from the Friends of Soos Creek organization about
viewing location on top of culvert. Don Wickstrom stated that they were referring to a
different location at 256th and 148`h and Public Works would be working with Joe Niles
on that situation.
Debbie Raplee moved to recommend authorizing the Mayor to sign the Utility
Relocation Agreement with Sons Creek Water and Sewer District upon concurrence
of the language therein by the City Attorney and the Public Works Director. When
the agreement is signed, authorizing the staff to accept the funds and establishing a
budget for the funds to be spent within the project. The motion was seconded by
Ron Harmon and passed 3-0.
Pacific Highway S HOV Lanes Proieet Fund Authorization Agreement
Public Works Director Don Wickstrom said the funds for this project have been received
in three stages. This agreement is for the right-of-way portion of the project. Ron
Harmon asked if the City will be sure to coordinate with business owners to notify them
of when their business would be effected. Mark Howlett, Project Engineer said that this
project has been done in phases. Steps have been and will continue to betaken to keep
the public informed. Every six months approximately 2000 people get a project update
mailed to them, two project engineers went and met with interested property owners,
there will be signs with City phone numbers posted, City of Kent web site will have
updated information,while the project is in progress the information will be updated on
Kent Radio 1650 and during the project City Inspectors will meet with business/property
owners to go over any concerns.
Debbie Raplee moved to authorize the Mayor to accept the funding agreements,
authorize staff to accept the funds and establish a budget for funds to be spent
within said road improvement project. The motion was seconded by Ron Harmon
and passed 3-0.
LIED 353 S 228" Street Extension—Ordinance for Assessment Roll
Public Works Director Don Wickstrom said this ordinance establishes the Public Works
Committee members as the Board of Equalization for the LID hearing and sets the date
for the hearing to be on March 23m at 4PM. There are approximately 2600 properties in
the LID. The board would make recommendation on their findings. Don Wickstrom said
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that during this project staff have been keeping owners up to date and trying to keep the
assessments at the same level as the preliminary assessment. The property owners will
receive their assessment in the US Mail at least 2 weeks before the hearing if they wish
to protest the assessment they can do so at the hearing. They will need to have their
protest in writing. Tom Brubaker, City of Kent Attorney said that some assessments will
be returned and it will be a challenge to locate the owners. The statute to authorize Local
Improvement Districts is drafted to protect the City, in that we are to send notice to the
recorded property owner listed in the King County Assessors Roll.
Bob O'Brien, 1131 Seattle Street was in the audience and wanted to voice his concerns
about the way the project will change the way of living at The Lakes and Riverview. He
asked if there had ever been an instance where the property value diminished due to the
LID?
Don Wickstrom said that the properties in the Lakes and Riverview would not have been
developed without the LID. Tom Brubaker said that theoretically it is possible to have
property value to be less although he didn't think that would happen. An important
market factor is the fact that if the developers had not agreed to the LID the projects
would not have been built.
Ron Harmon moved the City Council pass an ordinance to set March 23`d 2004 for
the public hearing on the assessment roll of LID 353 and establish a board of
equalization to conduct the hearing. The motion was seconded by Debbie Raplee
and passed 3-0.
Amend City Code Section 7.02.160—Adopt Ordinance
Public Works Director Don Wickstrom said the fire department can require sprinklers
when grade is greater then 15%, the proposed ordinance waives the additional system
development charge for single family residential homes in those instances.
Debbie Raplee moved to recommend Council adopt the proposed ordinance that
amends Chapter 7.02.160 of the Kent City Code to clarify the installation and
connection charges inside the City limits. The motion was seconded by Ron
Harmon and passed 3-0.
The meeting adjourned at 5:40 P.M.
Janet Perschek
Administrative Assistant
PUBLIC WORKS DEPARTMENT
or, Z4
Don E. Wickstrom, P.E. Public Works Director
Phone:253-856-5500
T Fax: 253-856-6500
KEN
WASH IN G r o N Address: 220 Fourth Avenue S.
Kent,WA.98032-5895
DATE: February 25, 2004
TO: Publi �orks Committee
FROM: Do kstrom, Public Works Director
THROUGH:
SUBJECT: State of Washington Department of Ecology
Coordinated Prevention Grant—Grant No. G0400228
MOTION:
Recommend authorizing the Mayor to sign the Department of Ecology Coordinated Prevention
Grant for years 2004-05, in the amount of$82,971, directing staff to accept the grant and
establishing a budget for the funds to be spent within said project.
SUMMARY:
We are in receipt of the Department of Ecology Coordinated Prevention Grant in the amount of
$82,971 for the years 2004-2005. The funds will be used to purchase and distribute Rain Pails
and Compost Bins to Kent residents, and to fund a kitchen waste composting pilot project.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact
BACI{GROUND
The Washington State Department of Ecology Coordinated Prevention Grant is used to purchase
600 Rain Pails and 300 compost bins for distribution to Kent residents at lower prices to increase
waste reduction and recycling and promote the use of recycled content products in the City of
Kent. Both items are made from 100% recycled content plastic and will provide a market for
over 99 tons of recycled plastic. The Rain Pails will provide an auxiliary environmental benefit
of water conservation through reuse of rainwater on residential lawns and in gardens. Through
backyard composting, 63.8 tons of organic material will be diverted from the waste stream and
reused in residential yards and gardens. The kitchen waste composting pilot project will study
the effectiveness of kitchen waste composting and determine the annual food waste diversion for
different sized households.
Mayor While and Kent City Council Coordinated Prevention Grant—Grant No.G0400228
March 1,2004
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
STATE OF WASHINGTON DEPARTMENT OF ECOLOGY
AND
CITY OF KENT
This is a binding agreement entered into by and between the State of Washington Department of Ecology,
hereinafter referred to as the DEPARTMENT, and the City of Kent,hereinafter referred to as the RECIPIENT,to
carry out the activities described herein.
RECIPIENT NAME&ADDRESS City of Kent
220 4"Ave S
Kent WA 9803 2-5 8 95
RECIPIENT PROJECT COORDINATOR Robyn Bartelt
TELEPHONE 253-856-5549
FAX 253-856-6500
E-MAIL rbartelt@ci.kent.wa.us
REGIONAL PROJECT OFFICER Steven Williams
TELEPHONE 425-649-7048
FAX 425-649-7098
E-MAIL stwi461@ecy.wa.gov
FUNDING SOURCE Local Toxics Control Account
MAXIMUM ELIGIBLE COST $110,628
STATE GRANT SHARE $82,971
LOCAL SHARE $27,657
STATE MAXIMUM GRANT PERCENT 75 % 1
FEDERAL TAX IDENTIFICATION NO. 91-6001254
For the purpose of this agreement,the RECIPIENT will be allowed to match the DEPARTMENT share with cash
and interloeal in-kind costs in accordance with pre-application instructions.
This grant is effective on January 1,2004. Any work performed prior to the effective date of this agreement
without prior written authorization and specified in the Scope of Work will be at the sole expense and risk of the
RECIPIENT.
This agreement shall expire no later than December 31,2005.
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
SCOPE OF WORK
The task(s)set forth below summarize the RECIPIENT's goals, activities,budget(s) and schedule(s)and expected
outcomes.
Recipient Responsibilities: The RECIPIENT is responsible for implementing activities identified in the local
Solid Waste Management Plan(SWMP),the Moderate Risk Waste Plan(MRWP), and/or the Hazardous
Waste Management Plan(HWMP).
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1) PROJECT TITLE: RECYCLED CONTENT MATERIAL DISTRIBUTION(WRR)
Goal Statement:
The goal of this project is to increase waste reduction and recycling in the City of Kent by providing
the means fi z residents to purchase low-cost rain barrels made from 100%recycled content plastic
Maximum Eligible Cost: $66,000
Project Description: !
The RECIPIENT shall conduct rain barrel distribution events in the spring and fall of 2004 and 2005.
Promotional advertising shall occur prior to the events. A total of 600 barrels will be distributed. The
RECIPIENT shall submit to the DEPARTMENT copies of flyers and any other promotional materials
produced in conjunction with this project.
If the RECIPIENT charges residents a fee for the barrels,the income received from the sale of the
bins shall be listed as a credit on voucher support Form C2.
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Ikent
TARGET: (What measurable change or accomplishment this project will achieve)
Over the two-year grant period, 600 barrels will be distributed,providing a market for 30 tons of
recycled-content material.
MILESTONES (Intermediate results that lead to the ACTIONS MEASUREMENT
target)
The actions the How the recipient
The number of who take the steps by this people or businesses described below date. recipient takes to knows the change look it
encourage the change place
January 04 A. Procure barrels and Invoiced and signed
and 05 distributor vendor participation
agreements
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February B. Arrange date and Receive signed use
04 and 05 site of event permit
August 04
and 05
13,979 single-family Receive flyer March 04 C. Event publicity Confirmation from
households annually and 05 post office
September
04 and 05
300 households Attend distribution March 04 D.Distribution event Barrels sold, income
annually event to buy barrel and 05 held received
October 04
and 05
150 households Complete and return September E. Collects survey Compiles survey
annually survey(others 04 and 05 data results
contacted directly)
March OS
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GrantNo. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
2) PROTECT T1TL E: COMPOST BIN DISTRIBUTION(WRR)
Goal Statement:
The goal of this project is to increase waste reduction and recycling in the City of Kent by
providing the means for residents to purchase low-cost compost bins to recycle and reuse
compostable yard debris at their residence.
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Maximum Eligible Cost: $ 35,000
Project Description:
The RECIPIENT shall conduct compost bin distribution events in the spring of 2004 and 2005.
Promotional advertising shall occur prior to the events. A total of 300 compost bins will be
distributed. The RECIPIENT shall submit to the DEPARTMENT copies of flyers and any other
promotional materials produced in conjunction with this project.
If the RECIPIENT charges residents a fee for the compost bins,the income received from the sale of
the bins shall be listed as a credit on voucher support Form C2.
TARGET PLAN
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Dent
TARGET: (YVhat measurable change or accomplishment this project will achieve)
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Over the two-year grant period, 63.8 tons of organic material will be diverted from the waste stream
and reused in residential yards and gardens. (Tonnage diversion is based past King County surveys that
figured 500 Ibs annually per bin, at 85%participation rate.)
MILESTONES (Intermediate results that lead to the ACTIONS MEASUREMENT
target)
The number of who take the steps by this The actions the How the recipient
people or businesses described below date. recipient takes to knows the change took
encourage the change place
January 04 A.Procure bins and Invoiced and signed
and 05 distributor vendor participation
agreements
February B. Arrange date and Receive signed use
04 and 05 site of events permit
13,979 single-family Receive flyer March 04 C.Event publicity Confirmation from
households annually and 05 post office
150 households Attend distribution March 04 D.Distribution event Bins sold,income
annually event to buy bin and 05 held received
75 households Complete and return September E. Collects survey Compiles survey
annually survey(others 04 or 05 data results
contacted directly)
3) PROJECT TITLE: KITCHEN WASTE COMPOSTING PILOT PROJECT (WRR)
Goal Statement:
The goal of this project is to study the effectiveness of kitchen waste composting and determine the
annual food waste diversion for different sized households.
Maximum Eligible Cost: $ 9,628
Schedule: January 1,2004 through December 31,2005
Project Descrjption:
TARGET PLAN
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GrantNo. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
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TARGET: (What measurable change or accomplishment this project will achieve)
12 households in sign up for and remain in the pilot project for the two year grant cycle. A report
will be published upon project completion outlining results.
MILESTONES (Intermediate results that lead ACTIONS MEASUREMENT
to the target)
Rie number who take the steps by this The actions the recipient How the recipient knows
ofpeople or e takes to encourage the the than took lace
businesses described below date. change g p
42,500 Become aware of March A. Kitchen waste project Confirmation from post
residents program 2004 solicitation flyers mailed office
200 residents Express interest in April B.Flyer responses received
participating in 2004
project
100 Receive April C. Send participation Confirmation from post
households applications 2004 application flyers to office
qualifying households
12 Sign up to May D.Meeting with Participation notices signed,
households participate in 2004 participating households to meeting held, supplies
project educate about and discuss delivered.
program, and distribute
supplies
12 Record quarterly Aug 04 E. Compiles results, Database to track quarterly
households amount of kitchen Nov 04 follow-ups in households as outcomes
waste diverted Feb 05 needed
May 05
Aug 05
Nov 05
Dee 05 F.Final Report and Published program
Jan 06 Findings brochure and pressrelease
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
Communication/Reporting:
The DEPARTMENT's project officers will contact the RECIPIENT representatives in accordance with the
implementation/verification schedule(s) attached herein. It is the responsibility of the RECIPIENT to be
prepared to discuss if the project is moving along on schedule and what technical assistance may be
required. All payment requests must be accompanied by a progress report which is satisfactory to the
specifications of the grant officer. Payment requests are due at least every 12 months and no more
frequently than every six months.
The RECIPIENT must also complete annual reports on the prescribed forms and submit to the
DEPARTMENT a Final Performance Analysis report(FPA)including the effectiveness of the approaches
used and any lessons learned, unless instructed otherwise by the DEPARTMENT. The FPA is due no later
than 45 days following the expiration of this agreement.
When completing the FPA, the RECIPIENT is required to complete the "innovative/learning project"
requirement as described on page 53 in the Guidelines under the heading of Project Analysis. Project
3 of this agreement must be used as the innovative/learning project. If the RECIPIENT chooses
to complete more than one innovative/learning project,projects 1 and 2 may not be used.
IMPLEMENTATION/VERIFICATION SCHEDULE
1) RECYCLED CONTENT MATERIAL DISTRIBUTION
Project Contact
Step Milestone Date Status and Comments
C. Event Flyers received by single
Publicity family households Feb/March 04 and 05
D.Hold Residents attend event—all
distribution barrels distributed March 04 and 05
Event
E and F. Participants using barrels September 04 and 05
Surveying of
participants
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2 COMPOST BIN DISTRIBUTION
Project Contact
Step Milestone Date Status and Comments,
C. Event Flyers received by single
Publicity family households Feb/March 04 and 05
D. Hold Residents attend events—all
Collection bins distributed March 04 and 05
Events
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
3)KITCHEN WASTE COMPOSTING PILOT PROJECT
Project Contact
Step Milestone Date Status and Comments
D.Meeting with participating Participation notices June 04
households to educate about and signed,meeting held,
discuss program, and distribute supplies delivered.
supplies
E. Compiles results,follow-ups in Quarterly reports from Nov 04
participants
households as needed
Aug 05
CPG BUDGET
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PROJECT TASK MAXIMUM ELIGIBLE COST
1. Recy
cled Content Material Distribution(WRR) $ 66,000
2. Compost Bin Distribution(WRR) $ 35,000
3. Kitchen Waste Composting Pilot Project(WRR) $9,628
TOTAL $ 110,628
FUND SOURCE
Total Eligible Cost $ 110,628
FUND. FUND SHARE(%) MAXIMUM FUND AMOUNT
Local Toxics Control Account(LTCA) 75 % $ 82,971
MATCH REQUIREMENT , MATCH SHARE ("/°) MATCFI AMOUNT
Cash Match or Interlocal Costs 25 % $27,657
ADDITIONAL BUDGET CONDITIONS
1. Overhead is eligible;the RECIPIENT may charge 25 percent of RECIPIENT salaries and
benefits applied directly to the project as overhead.
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Grant No. G0400228
Coordinated Prevention Chant
Agreement with City of Kent
2. The RECIPIENT contact for billing and invoicee-questions is:
NAME: Donna Palmer
TELEPHONE: 253-856-5511
3. Grant payments should be made out payable to the following and mailed to this address:
City of Kent
Public Works Engineering Department
220 4th Ave S
Kent WA 98032-5895
SPECIAL,TERMS AND CONDITIONS
A. MINORITY AND WOMEN'S BUSINESS PARTICIPATION
The RECIPIENT agrees to solicit and recruit, to the maximum extent possible, certified minority-
owned(MBE)and women-owned (WBE)businesses in purchases and contracts initiated after the
effective date of this Agreement.
In the absence of more stringent goals established by the RECIPIENT's jurisdiction, the RECIPIENT
agrees to utilize the DEPARTMENT's goals for minority- and women-owned business participation
in all bid packages,request for proposals, and purchase orders. These goals are expressed as a
percentage of the total dollars available for the purchase or contract and are as follows:
Construction/Public Works 10%MBE 6%WBE
Architecture/Engineering 10%MBE 6%WBE
Purchased Goods 8%MBE 4%WBE
Purchased Services 10%MBE 4%WBE
Professional Services 10%MBE 4%WBE
No contract award or rejection shall be made based on achievement or non-achievement of the goals.
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Achievement of these goals is encouraged,however, and the RECIPIENT and ALL prospective
bidders or persons submitting qualifications shall take the following affirmative steps in any
procurement initiated after the effective date of this Agreement
1. Include qualified minority and women's businesses on solicitation lists.
2. Assure that qualified minority and women's businesses are solicited whenever they are potential
sources of services or supplies.
3. Divide the total requirements, when economically feasible,into smaller tasks or quantities to
permit maximum participation by qualified minority and women's businesses.
4. Establish delivery schedules,where work requirements permit, which will encourage
participation of qualified minority and women's businesses.
5. Use the services and assistance of the State Office of Minority and Women's Business
Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S.Department
of Commerce, as appropriate.
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
By signing this Agreement,the RECIPIENT certifies that these steps were, or will be followed. Any .
contractor engaged by the RECIPIENT under this agreement shall be required to follow these five
affirmative steps in the award of any subcontract(s).
The RECIPIENT shall report to the DEPARTMENT payments made to qualified firms at the time of
submitting each invoice and on forms provided by the DEPARTMENT. The.report will address:
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1. Name and State OMWBE certification number of any qualified firm receiving funds under the
voucher, including any sub-and/or sub-subcontractors.
2, The total dollar amount paid to qualified firms under this invoice.
B. INTERLOCAL AGREEMENTS
If parties other than the RECIPIENT are contributing to the local share of project costs,memoranda
of understanding or other written agreements confirming the contribution must be negotiated, These
agreements must specify the exact work to be accomplished and be signed by all parties contributing
to the local match of this project. Copies of these agreements shall be submitted to the
DEPARTMENT.
C. PROCUREMENT AND CONTRACTS
1. The RECIPIENT shall follow their standard procurement procedures and/or applicable state law
in awarding contracts;RECIPIENTS with no formal procurement procedures must comply with
the "Standards for Competitive Solicitation", found in the Administrative Requirements for
Ecology Grants and Loans,WDOE 91-18 (Revised October 2000).
2. Following execution, at the request of the DEPARTMENT, the RECIPIENT shall submit a copy
of all requests for qualifications (RFQs),requests for proposals (RFPs), and bid documents
relating to this grant agreement to the DEPARTMENT.
3. The RECIPIENT may use existing contracts that conform to adopted procurement procedures and
applicable state laws. The RECIPIENT shall notify the DEPARTMENT if it used contracts
entered into prior to the execution of the grant agreement for performance of grant fimded
activities.
D. SEPA COMPLIANCE
To ensure that environmental values are considered by the state and local government officials when
making decisions, the RECIPIENT shall comply with the provisions of the State Enviromnental
Policy Act(SEPA), Chapter 41.23C RCW, and the SEPA Rules, Chapter 197-11 WAC. Copies of
the SEPA documents shall be sent to the DEPARTMENT's Environmental Review Section,the
appropriate regional office,and Ecology's Waste Management Grants Section.
E. WETLANDS PROTECTION
To comply with the directive of Executive Order 90-04,Protection of Wetlands, all local
governments are requested and encouraged to make all of their actions consistent with the intent of
this executive order; specifically, (1)to avoid,to the extent possible,adverse impacts associated with
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Grant No. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
the destruction or modification of wetlands, and(2)to avoid direct or indirect support of new
construction in wetlands wherever there is a practical alternative.
F. FAILURE TO COMMENCE WORK
The DEPARTMENT reserves that right to terminate this grant in the event the RECIPIENT fails to
commence work on the project funded herein within six(6)months after the effective date.
G. PROJECT INCOME
Any proj ect income directly generated as a result of the activities funded by this grant shall be
reported as a credit against the expenses of that activity, as required by the DEPARTMENT's
Administrative Requirements for Ecology Grants and Loans, WDOE 91-18 (Revised October 2000).
H. GRANT PROJECT REPORTING
The RECIPIENT,in conjunction with submission of payment requests, or at the request of the project
officer, shall prepare Progress Reports and submit them to the DEPARTMENT as required by
paragraph J, General Terms and Conditions"Compensation". These reports shall include,but not be
limited to,the following information:
1. Brief description of activities for each project.
2. Brief discussion of progress toward expected outcomes.
3. Notification of any successful projects worth sharing with other jurisdictions or the media,needs
for technical assistance frorn the DEPARTMENT, or any other comments and relevant
information
I. PROMOTIONAL AND EDUCATIONAL MATERIALS
A copy of all promotional and educational materials developed as part of this grant shall be submitted
to the DEPARTMENT concurrent with public distribution. The DEPARTMENT shall have the right
to use any printed materials developed as part of this project in any manner the DEPARTMENT
deems appropriate. The Washington State Department of Ecology will be acknowledged for
providing funding in all published material and oral presentations that result from this grant.
J. AMENDMENTS AND MODIFICATIONS
No subsequent modification(s) or amendment(s) of this grant agreement shall be of any force or effect
unless in writing, signed by authorized representatives of the RECIPIENT and DEPARTMENT and
made part of this agreement; EXCEPT a letter of amendment will suffice to redistribute the budget
without increasing the total maximum eligible cost or to change the DEPARTMENT's Project Officer
or the RECIPIENT's Project Coordinator or to extend the period of performance as set forth in the
Grant Agreement.
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Grant Igo. G0400228
Coordinated Prevention Grant
Agreement with City of Kent
K. ALL WRITINGS CONTAINED HEREIN
This agreement,the appended"General Terms and Conditions", and the DEPARTMENT's
Administrative Requirements for Ecology Grants and Loans,WDOE 91-18 (Revised October 2000),
contain the entire understanding between the parties, and there are no other understandings or
representations except as those set forth or incorporated by reference herein.
IN WITNESS WHEREOF,the parties hereby execute this Grant:
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY CITY OF KENT
Cullen D. Stephenson Date Authorized Official Date
Program Manager
Solid Waste and Financial Assistance
Print Name of Authorized Official
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Title
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PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
Phone:253-856-5500
®
0 T Fax: 253-856-6500
WASHINGTON Address: 220 Fourth Avenue S.
Kent,WA.98032-5895
DATE:
TO: Public Works Committee
FROM: Don Wickstrom, Public Works Director
THROUGH: 1
SUBJECT: Pacific Highway South HOV Lanes Project
Agreement with King County Metro Transit for Construction of
Bus Shelter Pads
MOTION: Recommend authorizing the Mayor to sign the Agreement for right-of-way
acquisition and construction of the bus shelter pads, authorize staff to accept the funds and
establish a budget for the funds to be spent within said road improvement project.
SUMMARY: This Agreement is between the City of Kent and King County Metro Transit for
the acquisition of right-of-way and the construction of concrete shelter pads, litter receptacle
i
pads and retaining walls at twelve of Metro's bus stops along Pacific Highway South. Metro has
agreed to pay the City$172,000 for this work.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact
BACKGROUND: King County Metro Transit operates several bus routes along Pacific
Highway South through the City of Kent. At 12 bus stop location within the City, Metro desires
to construct bus shelters behind the sidewalk. Because of the ease and cost savings associated
with performing this work in conjunction with the City's project, Metro has agreed to pay the
City$172,000 to cover the cost of right-of-way acquisition and construction of the pads. After
completion of the concrete pad installation, Metro will install the bus shelters at their own
expense.
Mayor White and Kent City Council 1 Pac Hwy S.HOV Lanes—Metro Transit
Agreement between King County and the City of Kent for
Funding, Construction and Implementation of Pacific Highway South HOV Lanes Project
THIS AGREEMENT is made and entered into this day of 2004,by andbetween
the City of Kent,hereinafter called the"City," a municipal corporation of the State of Washington, and
King County, acting through its Department of Transportation, hereinafter called the"County,"both of
which el.tit-es may be collectively referred to hereinafter as the"Parties,,
WHEREAS, the City has undertaken the Pacific Highway South HOV Lanes Project to construct right-of-
way improvements from S 272nd St. to Kent Des Moines Road; and
WHEREAS, Pacific Highway South is a major north/south arterial sheet that serves both local and
regional traffic within the City by all modes, including public transit; and
WHEREAS, the City desires to improve traffic operations and pedestrian circulation, support transit and
enhance the overall safety and aesthetics of Pacific Highway South; and —
WHEREAS, the County wants to improve transit operations along Pacific Highway South and supports
the City's efforts to upgrade this facility in a manner more compatible to transit and pedestrian modes;
and
WHEREAS, the County has agreed to contribute funding to construct those project elements that directly
benefit transit operations;
NOW, THEREFORE,in consideration of the mutual covenants contained herein, the sufficiency of which
is acknowledged,the parties hereto agree as follows:
Section 1. City Responsibilities
1.1 The City will be responsible for the design, construction/installation, testing and acceptance of all
improvements -including those requested by the County-in plans prepared by the City identified
as the"Pacific Highway South HOV Lanes Project" (hereinafter, the"Project").
1.2 The City shall submit to the County plans for the Project for review prior to construction The
County will have the opportunity to review plans at 60%, 90%, and 100%.
1.3 The City will be responsible for the administration of any contracts it enters into for the
performance of its responsibilities under this Agreement. The City will provide the County with
quarterly progress reports to identify work progress, schedule adherence, and other matters of
significance in the performance of this Agreement. Prior to the issuance of a change order or
acceptance of contractor's work, the City will notify the County and provide the County with the
opportunity to comment on and inspect the following items included in the Project:
a. Bus shelter footings (in the formed stage prior to concrete pour per the Note on C 204-
.Footings in Attachment C.)
b. Handholds and conduits for providing power to bus shelters
However,neither the County's comments on nor inspection of City-led improvements under this
Agreement will relieve the City of its responsibility for said improvements.
City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
L4 The city shall contact the County two weeks n advance of construction to remove or relocate bus
shelters and 3 days in advance to move or relocate a bus stop
L5 The City will acquire right of way and install twelve(12) shelter footings, Litter Receptacle pads
and Retaining Walls (where applicable) as identified in Attachment B and Attachment C, in order
to create accessible bus stops meeting.federal, state and King County requirements. The City
shall exercise due diligence in acquiring said right of way.
1.6 The City will install conduit and wiring from the City's power source to the Metro J-box and
conduit from the Metro J-box to the shelter footing per the Internal Lighting Design. in
Attachment D.
i
1.7 The City will be responsible for arranging power service and for paying all ongoing electrical
power costs related to internal bus shelter lighting improvements. This obligation shall survive
any expiration or termination of this Agreement.
1.8 The City is hereby designated the County's construction agent for this project. The City will
incorporate the County's Plans and Specifications into the City's project and advertise the project
for competitive bid. The City will administer the construction of the project and shall have final
judgment, after consultation with the County, with regards to decisions related to the work of the
contractor.
f
Section 2. County Responsibilities
i
2.1 The County will be responsible for removing the existing shelters and installing new or
refurbished cobalt blue shelter units at their own expense. The Parties agree to manage the
phasing of the shelter-related construction so as to minimize the impacts to transit customers.
2.2 The County will install bus shelters with internal lighting capability at up to twelve(12)bus
zones, as identified in Attachment B. The County will maintain the bus shelters.
2.3 Upon notification by the City of completion of work identified in Sectionl.3, the County will
inspect the improvements consistent with the County approved plans and specifications. If the
County finds that any work does not meet the terms of this Agreement, or any specifications or
terns established hereunder, the County will prepare a punch list of such items and submit it to
the City.Work that does not comply with the agreed upon specifications and terms, except as
modified by mutual agreement between the City and County, will be corrected by the City at no
cost to the County. Notice of acceptance will not constitute acceptance of any unauthorized or
defective work or material. The County retains all rights hereunder and at law to require the City
to remove, repair,replace, or dispose of any unauthorized or defective work or to recover
damages for any such work or material.
Section 3. Financing
3.1 The construction budget for the Project is $12,000,000.00. The County will contribute directly to
the City an amount not to exceed$172,000 to support the project. These costs are intended to
City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
offset City planned construction of transit related improvements identified in Attachment A,
Tasks 1,3, and 4.
3.2 The City's Right of way cost estimates are contained on Attachment E.
33 If the City and County mutually agree that it is infeasible to secure right of way(ROW)for a
- •vinreduce:. u.. 'specific site, the County ... is coat r au n under this As.eeinent�y a.amount taken
from the construction cost estimate for that site(attachment B), the property acquisition costs
estimate for the site identified in Exhibit E(less the costs of item B, C, D, E,F and possibly H),
as well as a 1/12t°pro-rated share of$60,000. This share is based upon the difference between
the City's estimated ROW costs ($112,000)and the County's total contribution to the project.
The City and County may,by mutually written agreement, exceed the estimated parcel costs
identified in Attachment E on a site by site basis up a maximum of$172,000.
3.4 Once all available and mutually agreed ROW has been secured, funds not spent by the City on
right of way acquisition will available to the City for project construction and the improverents
identified herein including any unforeseen costs associated with the bus stop improvements.
3.5 The County shall absorb all costs associated with Task 2,Installation of bus shelters, identified
in Arta clarrent A.
3.6 The City will invoice the County upon completion of the tasks identified in Attachment A, except
for Task 2, Installation of Bus Shelters, wherein the County will remove and install the bus
shelters at County expense. The County will make payment to the City within thirty(30) days of
receipt of an invoice for work determined to be performed in accordance with the terms of the
Agreement. The County's total payment to the City under this Agreement will not exceed
$172,000,
Section 4. Ownership and Maintenance
4.1 Unless otherwise agreed to by the Parties, the City will own and maintain all improvements
constructed by the City as part of the Project.
4.2 The County will own and maintain the shelter footings, litter receptacle pads, retaining walls
around the shelter footing(where applicable) eonstructedby the City behind the sidewalk but
paid for by the County. The County will own and maintain all King County Metro bus shelters,
litter receptacles,benches,interval shelter lighting fixtures and bus signage supplied by the
County.
Section 5. Legal Relations
5.1 It is understood that this Agreement is solely for the benefit of the parties hereto and gives no
right to any other party. No joint venture, agent-principal relationship or partnership is formed as
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 or agents of the other
party.
5.2 To the rnaximuni 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 all claims, demands,
City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
suits,,actions and liability of airy kind,including injuries to persons or damages to property, that
arise out of, are connected with, or are due to any negligent acts or omissions of the indemnifying
party and/or its contractors, officials, employees, agents andrepresentatives in perfornning work
under this Agreement;provided, however, that if(and only if) the provisions of RCW 4.24.115
apply and any such damages and injuries to persons or property are caused by or result from the
concurrent negligence of both parties to this Agreement, or their contractors, officials, employees,
agents and representatives, then in such instance each party's obligation hereunder applies only to
the extent of the negligence of such party or its contractors, officials, employees, agents or
representatives. Each party specifically assumes potential liability for actions brought by its own
employees against the other party and for that purpose only each party specifically waives, as to
the other party only, any inrnnumity under the Worker's Compensation Act, RCW Title 51; and
the parties recognize that this waiver was the subject of mutual negotiation and specifically
entered into pursuant to the provision of RCW 4.24.115.
5.3 The City and the County shall comply and shall ensure that their contractors comply with all
federal, state and local laws, regulations, and ordinances applicable to work and services to be
performed under this Agreement.
5.4 In the event any party incurs atto iLey's fees, costs or other legal expenses to enforce provisions of
this section against another party, all such fees, costs, and expenses shall be recoverable by the
prevailing party.
5.5 This Agreement shall be interpreted in accordance with the laws of the State of Washington in
effect on the date of execution of this Agreement. The Superior Court of King County,
Washington shall have exclusive jurisdiction and venue over any legal action arising wider this
Agreement.
i
5.6 The provisions of this Section shall survive any expiration or termination of this Agreement.
Section 6.Records and Audit
6.1 During the progress of the design and construction of all improvements covered by this
Agreement and for a period not less than three(3)years from the date of completion of all
improvements, records and accounts pertaining to the work of this Agreement and accounting
therefore are to be kept available for inspection and audit by representatives of the parties.
Copies of the records shall be furnished upon request and shall be maintained in accordance with
a work order accounting procedure prescribed by the State Auditor's Office.
Section 7.Agreement Duration and Termination
7.1 This Agreement shall take effect upon execution by both parties and shall expire January 31,
2006,unless extended by mutual agreement of the Parties or unless terminated in accordance with
the provisions of this Section 7.
7.2 Either party may terminate this Agreement in the event that the other party materially breaches
this Agreement. Written notice of such termination must be given via certified mail by the party
terminating this Agreement to the other party not less than fourteen(14) days prior to the
effective date of termination.
City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
7.3 Either party may teminate for its convenience and without cause by providing written notice to
the other party not less than thirty(30) days prior to the effective date of.termination.
7.4 Failure by either party to require full and timely performance of any provision of the Agreement
at any time shall not waive or reduce the right of either party to insist upon complete and timely
performance of such provisions or any other provision thereafter.
Section 8.Identification of Contacts at City and County
8.1 The City and the County each agree to appoint a Project Manager to represent the interests of
their respective agencies. The two Project Managers will work collaboratively to implement this
Agreement.
8.2 All official communication concerning this Agreement should be directed to the following Project
Managers:
Mark Howlett Paul Alexander
Project Manager Project Manager
City of Kent King County Dept of Transportation
220 eAvenue South. 201 S Jackson Street, MS KSC-TR-0413
Kent,WA98032 Scattle,WA 98104 j
Any changes in agency contacts from those noted above must be confirmed in writing to the other
ply.
Section 9. Entire Agreement
i
This document contains all terms, conditions and provisions agreed upon by the parties thereto, and
shall not be modified except by written amendment, Such amendments may be made to this Agreement
within the previously approved budget or other applicable authority for and on behalf of the City by its
Mayor or designee, and for and on behalf of the County by its General Manager of the Transit Division or
designee. The written provisions and terms of this AGREEMENT, together with any attached Exhibits,
shall supersede all prior verbal statements of any officer or other representative of either party, and such
statements shall not be effective or be construed as entering into or forming a part of or altering in any �f
manner this AGREEMENT, This document, including all Exhibits, is the entire agreement between the
parties. Should any language in any of the Exhibits to the AGREEMENT conflict with ally language
contained in this AGREEMENT, the terms of this AGREEMENT shall prevail.
Section 10. Assignment
Any assignment of this AGREEMENT by either party without the written consent of the non-
assigning party shall be void.
Section 11. Modification
No waiver, alteration, or modification of any of the provisions for the AGREEMENT shall be binding
unless in writing and signed by a duly authorized representative of the CITY and the COUNTY.
City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
Section 12. Severability
If any provision of this Agreement is held invalid by a court of competent jurisdiction,risdiction, the
remainder of the Agreement shall not be affected thereby if such remainder would then continue
to serve the proposes and objectives originally contemplatedby the parties.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date first written
above.
The City of Kent
By
Jim White, Mayor Date
City of Kent
Approved as to Form
By
Date
King Coru
By
ty
f /
Rick C.Walsh, General Manager Date
King County Metro Transit Division
Approved as to Form
B
Y
Je sicaHardumg Date
D�Outyl`rosecutingAttomey
City of Kent Agreement 6
Pacific Highway South HOV Lanes Project
2/02/04
Attachment A
Funding of Transit Related Elements
Pacific Highway South HOV Lanes Project
City of Kent, Washington
The County contribution for this project is as follows:
TASK BUDGET
Task 1: Bus Zone and Shelter Improvements $52,000
County contribution to the City supporting the construction of bus shelter footings,litter receptacle pads
and retaining walls. County contribution to the City supporting the construction of handholds, conduit
runs, in addition to the wiring and fuses from the City power source to the handholds per County
specifications in order to provide power to bus shelter.
Task 2: Installation of Bus Shelters $83,200
County cost for installation of bus shelters at up to twelve (12)locations.
Task 3: General Street and Pedestrian Improvements $120,000
County contribution to the City to support construction of street rechannelization,northbound and
sorthbound HOV lanes, curb, getter, sidewalks, and curb ramps.
I
Y
City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
i
Draft-Attachment B
Bus Shelter List
Pacific Highway South HOV Lanes Project
City of Kent,Washington
Smelter Zone Kent Parcel Station looting xDoting Shelter Liucr Internal 6" wide
Number Type Size Type Receptacle Shelter Retaining Construction
Pad Lighting Wall Cost
1 60750 462632(S) 37+55R I B21 9'-8"x4'-4" F21 Yes Yes No $3,819.70
2 60752 ROW @ S 47+81R B21 9'-8"x4'-4" F21 Yes Yes No $3,819.70
268"'St
3 60760 462607(S) 78+90R B21 9'-8"x4'-4" F21 Yes Yes No $3.819.70
4 60780 ROW @ 105+OOR B11 9'-8"x7' Fll Yes Yes No $4,409.94
396489(N)
5 60790 396476(N) 122+95R B21 91-8'x4'-T' F21 Yes Yes Yes $5,455.35
6 48950 396469(N) 148+10R B22 18'x44' F22a Yes Yes No $6,111.52
7 48960 396453(N) 165+50R B21 91-8"x4'-4" F21 Yes Yes Yes N/A(Rowoniy)
8 50480 397246(N) 165+401, B21 9'-8"x4'-4" F21 Yes Yes No $3,819.70
9 50481 397232(N) 149+OOL B21 9'-8"x4'-4" F21 Yes Yes No $3,819.70
10 61180 397225(N ) 140+1OL B21 9'-8"x4'-4" F21 Yes Yes No $3,819.70
11 61190 397212(N ) 123+60L B21 9'-8"xT-4" F21 Yes Yes No $3,819.70
12 61200 396496(N) 100+45L B21 9'-8"x4'-4" F21 Yes Yes No $3,819.70
13 61220 462656(S) 72+1OL B21 9'-8"x4'-4" F21 Ycs Yes Yes $5,465.59
I
i
City of Kent Agreement e
Pacific Highway South HOV Lanes Project
2/02/04
i
Attachment C
I
Includes:
D103-Standards for Construction of Transit Passenger Facilities
Footing Plans,Sections, Details,Notes and Schedule
C206-Rock and Concrete Cut Retaining Walls Details
C211-Bus Sign Foundation Litter Receptacle Pad Details
i
i
9
City of Kent Agreement
Pacific highway South HOV Lanes Project
2/02/04
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Standards for Construction of Transit Passenger Facilities
Internal Bus Shelter Lighting Details
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City of Kent Agreement 0
Pacific Highway South HOV Lanes Project
2/02/04
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City of Kent Agreement
Pacific Highway South HOV Lanes Project
2/02/04
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PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
Phone:253-856-5500
IC N T Fax: 253-856-6500
WASHINGTON Address: 220 Fourth Avenue S.
Kent,WA.98032-5895
DATE: March 1, 2004
TO: Public Works Cmmm tee
FROM: Don Wickstrolxn(
SUBJECT: 94`h Ave. S. and S. 248`h Street hnprovement
Sanitary Sewer Installation
Charge in Lieu of Assessment
MOTION
Authorize the Engineering Department to establish a charge in lieu of assessment for sanitary
sewer connection for the affected properties as shown on the attached map.
SUMMARY:
The City funded the construction of a sanitary sewer on a portion of 94th Ave S. and S. 2481h
Street which was constructed in conjunction with a street improvement project. The request is to
establish a charge in lieu of assessment to allow the City to recuperate a portion of it's cost
from the properties serviced upon connection.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact
BACKGROUND:
S. 248`h St between 94t" and 961h Ave. S. was unsewered. As part of the recent road construction
project in this area the City funded the sewer constriction within the new road improvement area
to avoid excavation of the new improvements at a later date to install the sewer. This sewer is
shown on the City's sewer comprehensive plan.
The total amount to be collected is $53,897.93. This amount is to be distributed to 5 lots as
shown on the attached map at a rate of$10,779.59 per lot.
The total project cost for sewer was $125,993.26. The cost of$72,095.33 for the sewer on 941h
Ave. is not included in the charge because there are no fronting properties to service.
Public Works Cor rnittee 1 94'h/248`"charge in lieu of assessment
March 1, 2004
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94TH AVEAnd 8, MOTH St
Charge In Lieu Of Assessment
PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
Phone:253-856-5500
• Fax: 253-856-6500_T
WASH N�1 o H Address: 220 Fourth Avenue S.
Kent,WA.98032-5895
DATE: March ],, 2004
TO: Public orks Committee
FROM: Do4' kstrom, Public Works Director
THROUGH:
SUBJECT: Indefinite Term Lease for Land Agreement
MOTION: Recommend authorizing the Mayor to sign the Indefinite Term Lease for Land
Agreement with The Burlington Northern And Santa Fe Railway Company subject to the Public
Works Director's and the City Attorney's concurrence of the language therein.
SUMMARY: The City has negotiated a new lease agreement with the BNSF Railroad for
continued use of a public alley between Gowe Street and Titus Street along the westerly margin
of the Railroad right-of-way. The previous permit was revoked by the Railroad due to access
constraints and safety concerns following the planned installation of new crossing protection
equipment required to meet federal safety standards for the Sounder Commuter Rail trains to
operate at higher speeds. The new lease agreement requires the City to install a barrier along the
easterly and northerly margins of the leased premises, prohibits parking, and only allows access
from Titus Street. The terms and conditions of the agreement have been reviewed and approved
by the Legal Department, Risk Management, and the Public Works Department.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact. The cost of installing the j
barrier guardrail is estimated at$8000 to $10,000.
BACKGROUND: The BNSF Railroad is in the process of upgrading their signal and
crossing protection equipment(cantilever flashing lights and new crossing gates) on all of the at-
grade roadway crossings of their rail lines within the City of Kent. The upgrades are required in
order to meet federal safety standards to operate the Sounder Commuter Rail trains at higher
operating speeds. The installation of the new equipment at the Gowe Street and Titus Street
crossings will be initiated in next few weeks. The planned improvements create a conflict with
the current use of the existing railroad-permitted alleyway which encompasses the westerly 12
feet of the BNSF right-of-way between Gowe Street and Titus Street(See attached map). As
such, the BNSF Railroad officially notified the City that the permit granted in 1954 by the
Northern Pacific Railway Company (currently BNSF) for a public alley was revoked effective
September 30,2003. The City was given 30 days notice to vacate the premises in accordance
with the terms and conditions of the permit. The City has worked cooperatively with the Railroad
and the abutting property owners along the east side of 1 sr Avenue to comply with the order.
Mayor White and Dent City Council I Indefinite Term Lease for Land-Authorize
March 1,2004
The alleyway has been used by the abutting property owners and businesses for storing garbage
containers and is part of the collection route for the City's contract garbage hauler. It is also
used as a secondary access way by some of the businesses for loading and unloading.
Due to the importance of the public alley, the City has negotiated a new lease agreement with the
Railroad. The new agreement provides restricted public access to that portion of the Railroad
property which lies between the westerly margin of their right-of-way and a line 12 feet westerly
of and paralleling the centerline of the westernmost mainline tracks. Access to the alley will be
closed from Gowe Street and will only be allowed from Titus Street. This has been discussed
with the abutting property owners and the City's contract garbage hauler. The City will be
responsible for installing a barrier along the easterly boundary and northerly boundary of the
leased premises in order to prevent vehicles from crossing outside of the leased area and creating
a safety hazard. The cost of installing the barrier (a guard rail or jersey barrier) is estimated at
between $8000 and $10,000.
The terms and conditions of the new lease agreement have been reviewed and approved by the
City's Legal Department,Risk Management, and the Public Works Department.
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II
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Mayor White and Kent City Council 2 Indefinite Term Lease for Land-Authorize
March 1,2004
Form Approved by VP-Law
INDEFINITE TERM LEASE
LAND
THIS INDEFINITE TERM LEASE FOR LAND ("Lease") is made and entered into to be effective as of the 15th
day of January, 2004 ("Effective Date"), by and between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, a Delaware corporation essor" and THE CITY OF KENT, a n`municipal corporation "Lessee'
P t )" ( I v P )
RECITALS
A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks ("Lessor's
Tracks)") and various real properties associated therewith, including certain Premises as described below which Lessee
desires to lease from Lessor.
B. Lessor has agreed to lease to Lessee the Premises, subject to the terms, conditions and limitations
provided herein.
AGREEMENTS
In consideration of the mutual covenants herein, Lessor and Lessee hereby agree as follows:
Section 1. Premises and Term.
A. Lessor leases to Lessee and Lessee leases from Lessor, subject to the covenants, agreements, terms,
provisions and conditions of this Lease, that certain parcel of real property, situated in the City of Kent, County of King,
State of Washington, along Line Segment 51, Mile Post 16.35 and constituting the shaded area shown upon Print No. 3-
31894, dated 09/18/2003, revised 09/26/2003 a copy of which is attached hereto as Exhibit "A" and made a part hereof
"'Premises").
B. Lessee leases the Premises from Lessor beginning January 15, 2004 ("Commencement Date"), and shall
continue until terminated by either party as provided in this Section 1(B). This Lease may be terminated by either party, at
any time, without cause, for convenience, by serving upon the other party written notice of termination at least thirty (30)
days in advance. Upon the expiration of the time specified in such notice, this Lease and all rights of Lessee shall
absolutely cease.
C. INTENTIONALLY OMITTED
D. Each consecutive twelve-month period this Lease is in effect, beginning with the Effective Date of this
Lease, is herein called a "Lease Year."
E. Lessee acknowledges that it is assuming all risks associated with Lessor's right to terminate this Lease at
any time as provided above, and (i) Lessor gives no assurance that Lessor will delay termination of this Lease for any
length of time whatsoever, (it) Lessee may expend money and effort during the term of this Lease which may not
ultimately be of any benefit to Lessee if Lessor terminates this Lease, but nonetheless, Lessor shall have the right to
terminate the Lease if Lessor determines in its sole and absolute discretion that Lessor desires to terminate, and (III)in no
event shall Lessor be deemed to have any legal obligations to continue to lease the Premises for any length of time.
Section 2. Use and Compliance.
A. Lessee may use the Premises for the sole and exclusive purpose of a public alley and for no other
purpose without the prior written consent of Lessor. Lessee shall respond to Lessor's reasonable inquiries regarding the
use or condition of the Premises.
B. Lessee shall comply with all Laws applicable to Lessee, the Premises, this Lease and Lessee's activities
d obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associated with such
-ompliance. As used herein, the term "Laws" shall mean any and all statutes, laws, ordinances, codes, rules or
BNSF- Indefinite Term Lease—Isnd Form 405;Rev. 11/26/02
Form Approved by VP-Law -
regulations or any order, decision, injunction,judgment, award or decree of any public body or authority having jurisdiction
over Lessee,the Premises, this Lease, and/or Lessee's obligations under this Lease, and shall include all Environmental
Laws (as defined in Section 4(A)).
C. If any governmental license or permit is required or desirable for the proper and lawful conduct of
Lessee's business or other activity in or on the Premises, or if the failure to secure such a license or permit might in any
way affect Lessor, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license or permit and
submit the same to inspection by Lessor. Lessee, at Lessee's expense, shall at all times comply with the requirements of
each such license or permit.
Section 3. Rent.
A. Lessee shall pay as rental for the Premises, in advance, an amount equal to NIA ($0.00) annually during
the term of the Lease, ("Base Rent"). Base Rent, if any, shall increase 3% annually during the term of the lease. Lessor
reserves the right to change rental rates as conditions warrant. Billing or acceptance by Lessor of any rental shall not
imply a definite term or otherwise restrict either party from canceling this Lease as provided herein. Either party hereto
may assign any receivables due it under this Lease; provided, however, such assignments shall not relieve the assignor
of any of its rights or obligations under this Lease. All rent and other monetary payments under this Lease from Lessee to
Lessor shall be delivered solely to the following address:
Staubach - its Attorney-in-Fact for BNSF
P.O.Box 847574
Dallas,Texas 75284-7574
Lessor shall have the right to designate at any time and from time to time a different address for delivery of such
payments by written notice to Lessee pursuant to the notice provisions of Section 36 below. No rent or other payment
sent to any other address shall be deemed received by Lessor unless and until Lessor has actually posted such payment
as received on the account of Lessee, and Lessee shall be subject to all default provisions hereunder, late fees and other
consequences as a result thereof in the same manner as if Lessee had failed or delayed in making any payment.
B. Lessee acknowledges that Lessor utilizes the rental collection system involving direct deposit of monies
received through a financial institution selected by Lessor, which precludes Lessor's ability to exercise rejection of a rental
payment before Lessee's check is cashed. Lessee agrees that as a condition of Lessor granting this Lease Lessee
hereby waives any rights it may have under law to force continuation of this Lease due to Lessor having accepted and
cashed Lessee's rental remittance. Lessor shall have the option of rejecting Lessee's payment by refunding to Lessee the
rental amount paid by Lessee,adjusted as set forth in this Lease, and enforcing the termination provisions of this Lease.
C. Lessee shall pay the Base Rent and all additional amounts due pursuant to Section 9 as and when the
same become due and payable, without demand, set-off, or deduction. Lessee's obligation to pay Base Rent and all
amounts due under this Lease is an independent covenant and no act or circumstance, regardless of whether such act or
circumstance constitutes a breach under this Lease by Lessor, shall release Lessee of its obligation to pay Base Rent and
all amounts due as required by this Lease.
D. If any Base Rent or any payment under Section 9 or any other payment due by Lessee hereunder is not
paid within five (5) days after the date the same is due, Lessor may assess Lessee a late fee ("Late Fee") in an amount
equal to 5% of the amount which was not paid when due to compensate Lessor for Lessor's administrative burden in
connection with such late payment. In addition to said Late Fee, Lessee shall pay interest on the unpaid sum from the
due date thereof to the date of payment by Lessee at an annual rate equal to (i)the greater of(a)for the period January 1
through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-
half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published In The Wall Street
Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum
rate permitted by law,whichever is less.
13NSF- -Indefinite Tem Lease—Land Fo[m 405;Rev.11/26/02
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Form Approved by VP-Law
Section 4. Environmental.
A. Lessee shall strictly comply with all federal, state and local environmental laws and regulations in its
occupation and use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as
amended (RCRA), the Clean Water Act, the Clean Air Act, the Oil Pollution Act, the Hazardous Materials Transportation
Act, and CERCLA (collectively referred to as the "Environmental Laws"). Lessee shall not maintain any treatment,
storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws, on the Premises.
Lessee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws, on or
about the Premises.
B. Lessee shall give Lessor immediate notice to Lessor's Resource Operations Center at(800) 832-5452 of
any release of hazardous substances on or from the Premises and to Lessor's Manager Environmental Leases at (785)
435-2386 for any violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with
enforcing Environmental Laws with respect to Lessee's use of the Premises. Lessee shall use its best efforts to promptly
respond to any release on or from the Premises. Lessee also shall give Lessor's Manager Environmental Leases
immediate notice of all measures undertaken on behalf of Lessee to investigate, remediate, respond to or otherwise cure
such release or violation and shall provide to Lessor's Manager Environmental Leases copies of all reports and/or data
regarding any investigations or remediations of the Premises.
C. In the event that Lessor has notice from Lessee or otherwise of a release or violation of Environmental
Laws on the Premises which occurred or may occur during the term of this Lease, Lessor may require Lessee, at
Lessee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such
release or violation affecting the Premises or Lessor's right-of-way.
D. Lessee shall promptly report to Lessor in writing any conditions or activities upon the Premises which
create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury
to persons or property arising out of such conditions or activities; provided, however, that Lessee's reporting to Lessor
shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease. Lessee shall promptly respond to
.essor's request for information regarding said conditions or activities.
E. Hazardous Materials are not permitted on the Premises except as otherwise described herein. Lessee
expects to use on the Premises the following Hazardous Materials: None, and to store on the Premises the following
Hazardous Materials (as defined in Section 4(F) below): None Use or storage on the Premises of any Hazardous
Materials not disclosed in this Section 4(E) is a breach of this Lease.
F. For purposes of this Section 4, "Hazardous Materials" means all materials, chemicals, compounds, or
substances (including without limitation asbestos, petroleum products, and lead-based paint) identified as hazardous or
toxic under Environmental Laws.
G.
If Lessor has reason to believe that environmental damage has occurred during Lessee's occupancy of Premises and,
Lessor may, at its option prior to termination of this Lease, require Lessee to conduct an environmental audit of the
Premises through an environmental consulting engineer acceptable to Lessor, at Lessee's sole cost and expense, to
determine if any noncompliance or environmental damage to the Premises has occurred during Lessee's occupancy
thereof. The audit shall be conducted to Lessor's satisfaction and a copy of the audit report shall promptly be provided to
Lessor for its review. Lessee shall pay all expenses for any remedial action that may be required as a result of said audit
to correct any noncompliance or environmental damage, and all necessary work shall be performed by Lessee prior to
termination of this Lease.
Section 5. Access to Adjacent Property by Lessee.
If access to and from the Premises can be accomplished only through use of Lessor's property adjacent to the
Premises, such use is granted for ingress and egress only and on a non-exclusive basis, subject to such restrictions and
conditions as Lessor may impose by notice to Lessee. Lessor shall have the right to designate the location or route to be
'ed. Lessee understands and agrees that all of the terms and obligations under this Lease applicable to Lessee shall
ao be applicable to Lessee with respect to Lessee's use of any property adjacent to the Premises which Lessee may
use just as though the property has been specifically described as part of the Premises, including, without limitation, the
BNSF- Indefinite Tcmi Lease—Laud Forth 405;Rev.11/26/02
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Form Approved by VP-Law
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indemnity provisions of Section 13. Notwithstanding anything to the contrary herein, this Section 5 shall not grant Lessee
any right to cross any of Lessor's Tracks. Any such crossing rights may only be granted by a separate written agreement
between Lessor and Lessee.
Section 6. Access to Premises by Lessor.
A. Lessor and its contractors, agents and other design=ted third parties may at all reasonable times and at
any time in case of emergency, in such manner as to not unreasonably interfere with Lessee's use of the Premises as
allowed hereunder, (!) enter the Premises for inspection of the Premises or to protect the Lessor's interest in the Premises
or to protect from damage any property adjoining the Premises, (I!) enter the Premises to construct, maintain, and operate
trackage, fences, pipelines, communication facilities, fiber optic lines, wireless towers, telephone, power or other
transmission lines, or appurtenances or facilities of like character, upon, over, across, or beneath the Premises, without
payment of any sum for any damage, including damage to growing crops, (III) take all required materials and equipment
onto the Premises, and perform all required work therein,for the purpose of making alterations, repairs, or additions to the
Premises as Lessor may elect if Lessee defaults in its obligation to do so, (iv)enter the Premises to show the Premises to
holders of encumbrances on the interest of Lessor in the Premises, or to prospective purchasers or mortgagees of the
Premises; and all such entries and activities shall be without any rebate of rent to Lessee for any loss of occupancy of the
Premises, or damage, injury or inconvenience thereby caused.
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B. For purposes stated in this Section 6, Lessor will at all times have keys with which to unlock all of the
doors and gates on the Premises, and Lessee will not change or alter any lock thereon without Lessor's permission.
C. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper to open
doors, gates, and other entrances to obtain entry to the Premises. Any entry to the Premises by Lessor as described in
this Section 6 shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or any eviction of Lessee from the Premises, and any damages caused on account thereof will
be paid by Lessee.
Section 7. Warranties.
LESSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LESSEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. This
Lease is made subject to all outstanding rights or interests of others. If the Premises are subsequently found to be
subject to prior claim, this Lease shall terminate immediately on notice to that effect from Lessor. Lessee accepts this
Lease subject to that possibility and its effect on Lessee's rights and ownership of the Lessee Improvements. In case of
eviction of Lessee by anyone other than Lessor, or anyone owning or claiming title to or any interest in the Premises,
Lessor shall not be liable to Lessee for damage of any kind (including any loss of ownership right to Lessee's
Improvements) or to refund any rent paid hereunder, except to return the unearned portion of any rent paid in advance.
Section 8. Premises Condition: Lessee Improvements.
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A. Lessee represents that the Premises, the title thereto, any subsurface conditions thereof, and the present
uses thereof have been examined by the Lessee. Lessee accepts the same In the condition in which they now are,
without representation or warranty, expressed or implied, in fact or by law, by the Lessor, and without recourse to the
Lessor as to the title thereto, the nature, condition or usability thereof, or the uses to which the Premises may be put. By
taking possession or commencing use of the Premises, Lessee (i)acknowledges that it is relying on its own inspections of
the Premises and not on any representations from Lessor regarding the Premises; (I!) establishes conclusively that the
Premises are at such time in satisfactory condition and in conformity with this Lease and all zoning or other governmental
requirements in all respects; and (III) accepts the Premises in its condition as of the Commencement Date on an "AS IS,"
"WHERE IS," and "WITH ALL FAULTS" basis, subject to all faults and infirmities, whether now or hereafter existing.
Nothing contained in this Section 8 affects the commencement of the term of the Lease or the obligation of Lessee to pay
rent as provided above. Lessee represents and warrants to Lessor as follows: (i) Lessee does not intend to, and will not,
use the Premises for any purpose other than as set forth in Section 2; (ii) Lessee has previously disclosed in writing to
Lessor all special requirements (but Lessor shall have no responsibility relative to any such special requirement), if any,
,,hich Lessee may have in connection with this intended use; and (III) Lessee has undertaken and has reasonably and
,[!gently completed all appropriate investigations regarding the suitability of the Premises for Lessee's intended use.
Lessee shall comply with any covenants, conditions or restrictions now or hereafter affecting the Premises, and
BNSF- Indefinite Term Lease—Land - - _ Fenn 405;Rev. 11/26/02
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Form Approved by VP-Law
acknowledges that Lessor may place any covenants, conditions or restrictions of record affecting the Premises prior to or
during the term of the Lease. In such event, this Lease will be subject and subordinate to all of the same without further
action by either party, including, without limitation, the execution of any further instruments. Lessee acknowledges that
Lessor has given material concessions for the acknowledgements and provisions contained in this Section 8, and that
Lessor is relying on these acknowledgments and agreements and would not have entered into this Lease without such
acknowledgements and agreements by Lessee.
B. If initial improvements are necessary for Lessee's use of the Premises, Lessee, at Lessee's sole cost and
expense, shall, on or after the Commencement Date, construct and install such initial improvements to the Premises
which are necessary for Lessee's use of the Premises and are acceptable to Lessor in Lessor's sole discretion ("Lessee
Improvements"). The construction and installation of any Lessee Improvements shall be subject to Lessor's prior written
approval of plans and specifications for such Lessee Improvements to be prepared by Lessee and submitted to Lessor for
approval as set forth below, such approval to be in Lessor's sole and absolute discretion. Within forty-five (45) days after
the Commencement Date, Lessee shall submit detailed plans and specifications, and the identity of Lessee's proposed
general contractor for the Lessee Improvements for Lessor's review and approval. Lessor shall either approve or
disapprove the plans and specifications and general contractor (in its sole and absolute discretion) by written notice
delivered to Lessee within sixty(60) days after receipt of the same from Lessee. In the event of any disapproval, Lessor
shall specify the reasons for such non-approval. If Lessor fails to deliver notice to Lessee of Lessor's approval or
disapproval of the plans, specifications, and proposed general contractor within the time period discussed above,
Lessee's plans, specifications and proposed contractor shall be deemed disapproved. If Lessor specifies objections to
the plans and specifications or general contractor as herein provided and Lessor and Lessee are unable to resolve the
objections by mutual agreement within a period of thirty (30) days from the date of delivery of written notice thereof,
Lessee, as its sole remedy, to be exercised not later than ten (10)days after the expiration of said thirty(30)days period,
may terminate this Lease by written notice to Lessor. Upon approval of the plans and specifications by Lessor, Lessor
and Lessee shall sign the same, and they shall be deemed a part hereof. All Lessee Improvements shall be constructed
and installed in accordance with the terms and conditions of Exhibit "B" attached to the Lease and all applicable terms
and conditions of the Lease regarding alterations and improvements. Lessee shall not construct any other alteration or
improvement to the Premises without Lessor's prior written consent. The Lessee Improvements constructed pursuant to
he above provisions shall be owned by Lessee during the term of the Lease and removed from the Premises or
surrendered to the Lessor pursuant to Section 20 below upon termination of this Lease. Notwithstanding the foregoing,
after full execution of this Lease, and within thirty (30) days following approval of plans and specifications by BNSF,
Lessee shall install, at its sole cost and expense, a barrier along the easterly boundary and northerly boundary of the
Premises so as to prevent vehicles from crossing said easterly and northerly boundary lines. The plans and specifications
for the barrier shall be approved by BNSF in writing.
Section 9. Taxes and Utilities.
A. In addition to Base Rent, Lessor shall provide Lessee, pursuant to Section 36, with the invoice for any
taxes, or other charges Lessee is liable for under this Section 9, within ten (10) days of Lessor receiving the same.
Lessee shall pay said amounts when due. If this Lease is a transfer of an existing lease, Lessee must make
arrangements with the present lessee for payment of any delinquent and current taxes, utilities, and other charges prior to
taking possession. If such arrangements are not made, Lessee agrees to pay all such taxes, utilities, and other charges.
If Lessor should make any such payments, Lessee shall promptly upon demand reimburse Lessor for all such sums.
B. Should the Premises be subject to special assessment for public improvements in the amount of Five
Hundred Dollars ($500.00) or less during any Lease Year, Lessee shall promptly reimburse Lessor the amount in full.
Should the assessment exceed Five Hundred Dollars ($500.00) during any Lease Year then such excess shall be paid by
Lessor, but the Base Rent herein shall be increased by an amount equal to twelve percent(12%) of such excess payable
for each Lease Year such amounts are payable.
Section 10. Track Clearance.
A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary material,
structure, pole, or other obstruction within (i)8Y2 feet laterally from the centerline of any of Lessor's Tracks on or about the
"remises (nine and one-half(9-1/2)feet on either side of the centerline of any of Lessor's Tracks which are curved) or (ii)
feet vertically from the top of the rail of any of Lessor's Tracks on or about the Premises ("Minimal Clearances");
provided that if any law, statute, regulation, ordinance, order, covenant or restriction ("Legal Requirement") requires
BNSF- Ind eLnite Term Lease—lend Fonn405;Rev.11/26/02
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greater clearances than those provided for in this Section 10, then Lessee shall strictly comply with such Legal
Requirement. However;vertical or lateral clearances which are Jess than the Minimal Clearances but are in compliance
with Legal Requirements will not be a violation of this Section 10, so long as Lessee strictly complies with the terms of any
such Legal Requirement and posts a sign on the Premises clearly noting the existence of such reduced clearance. Any
such sign shall be painted with black and white reflective paint.
B. Lessor's operation over any Lessor's Track on or about the Premises W!"'. knowledge of an unauthor'<-ed
reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 10 or of Lessor's right to
recover for and be indemnified and defended against such damages to property, and injury to or death of persons, that
may result therefrom.
C. Lessee shall not place or allow to be placed any freight car within 250 feet of either side of any at-grade
crossings on Lessor's Tracks.
Section 11. Repairs: Maintenance.
A. Lessee shall, at its sole expense, take good care of the Premises (including the barrier described in 8.13
and all other Lessee Improvements) and shall not do or suffer any waste with respect thereto and Lessee shall promptly
make all necessary or desirable Repairs to the Premises and shall keep the Premises as safe as possible for public travel.
The term "Repairs" means all reasonable repair and maintenance necessary to keep the Premises (including all Lessee
Improvements) in good condition and includes, without limitation, replacements, restoration and renewals when
necessary. Lessee shall keep and maintain any paved areas, sidewalks, curbs, landscaping, and lawn areas in a clean
and orderly condition, and free of accumulation of dirt and rubbish.
B. Lessor shall not have any liability or obligation to furnish or pay for any services or facilities of whatsoever
nature or to make any Repairs or alterations of whatsoever nature in or to the Premises, including but not limited to
structural repairs, or to maintain the Premises in any manner. Lessee acknowledges that Lessor shall have no
responsibility for management of the Premises.
Section 12. Safety: Dangerous and Hazardous Conditions.
It is understood by Lessee that the Premises may be in dangerous proximity to railroad tracks, including Lessor's
Tracks, and that persons and property, whether real or personal, on the Premises will be in danger of injury, death or
destruction incident to the operation of the railroad, including, without limitation, the risk of derailment, fire, or inadequate
clearance (including sight clearance or vision obstruction problems at grade crossings on or adjacent to the Premises),
and Lessee accepts this Lease subject to such dangers, and acknowledges that its indemnification obligations hereunder
extend to and include all such risks.
Section 13. Indemnity.
A. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL RELEASE, INDEMNIFY, DEFEND
AND HOLD HARMLESS LESSOR AND LESSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS,
ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES,
PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF
INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL
OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN
PART):
(i) THIS LEASE, INCLUDING,WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS;
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE;
(iii) LESSEE'S OCCUPATION AND USE OF THE PREMISES;
BNSF- Indefinite'remt Lease—Land Fonn 405;Rev.11l26/02
Form Approved by VP-Law
(iv) THE ENVIRONMENTAL CONDITION AND . STATUS_ OF THE PREMISES CAUSED BY,
AGGRAVATED BY,OR CONTRIBUTED IN WHOLE OR IN PART, BY LESSEE; OR
(v) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES,
OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE
OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED
BY THE: GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
B. Lessee agrees that it will not initiate with any local, state, or federal government agency an
investigation into the environmental condition of the premises. Lessee agrees that it will not attempt to hold
Lessor liable for environmental damage that was not proximately caused by Lessor's gross negligence or willful
misconduct.
C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES, REGARDLESS OF
ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS
THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR
SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT
("FELA") WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS AGENTS,INVITEES, OR CONTRACTORS CLAIM
OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL
ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF
ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY
APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE
RESOURCE CONSERVATION AND RECOVERYACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
D. Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit or other
proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Lease for which Lessee
has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Lessee shall pay all costs
incident to such defense, including,but not limited to, attorneys'fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments.
Section 14. Equal Protection.
I
It is agreed that the provisions of Sections 10, 12, and 13 are for the equal protection of other railroad companies, j
including, without limitation, the National Railroad Passenger Corporation (Amtrak), permitted to use Lessor's property,
and such railroad companies shall be deemed to be included as Indemnitees under Sections 10, 12, and 13.
Section 15. Assignment and Sublease.
A. Lessee shall not (i) assign or otherwise transfer this Lease or any interest herein, or (ii) sublet the
Premises or any part thereof, without, in each instance, obtaining the prior written consent of Lessor, which consent may
be withheld in Lessor's sole and absolute discretion. For purposes of this Section 15, in the event that there are
aggregate transfers or other changes in the ownership interests of Lessee resulting in a change of more than 20% of the
ownership interests as held on the date hereof, a transfer shall be deemed to have occurred hereunder. Any person or
legal representative of Lessee, to whom Lessee's interest under this Lease passes by operation of law, or otherwise, will
be bound by the provisions of this Lease.
B. Any assignment, lease, sublease or transfer made pursuant to Section 15(A) may be made only if, and
shall not be effective until, the assignee cures all outstanding defaults of Lessee hereunder and executes, acknowledges
and delivers to Lessor an agreement, in form and substance satisfactory to Lessor, whereby the assignee assumes the
)ligations and performance of this Lease and agrees to be personally bound by and upon all of the covenants,
greements, terms, provisions and conditions hereof on the part of Lessee to be performed or observed. Lessee
covenants that, notwithstanding any assignment or transfer,whether or not in violation of the provisions of this Lease, and
RNSF- Indefinite Tenn Lease—land Form 405;Rev.11/26/02
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Form Approved by VP-Law
notwithstanding the acceptance of rent by Lessor from an assignee or transferee or any other party, Lessee will remain
fully and primarily liable along with the assignee for the payment of the rent due and to become due under this Lease and
for the performance of all of the covenants, agreements, terms, provisions, and conditions of this Lease on the part of
Lessee to be performed or observed.
Section 16. Liens.
Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders arising out of
any construction, alterations or repairs, suffered or permitted to be done by Lessee on the Premises. Lessor is hereby
authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by
law to prevent the attachment of any such liens to the Premises; provided, however, that failure of Lessor to take any such
action shall not relieve Lessee of any obligation or liability under this Section 16 or any other Section of this Lease.
Section 17. Insurance.
Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease the following
insurance coverage:
A. All risks property insurance covering all of Lessee's property including property in the care,custody or
control of Lessee. Coverage shall include the following:
♦ Issued on a replacement cost basis.
♦ Shall provide that in respect of the interest of Lessor the insurance shall not be invalidated by any
action or inaction of Lessee or any other person and shall insure the respective interests of
Lessor as they appear, regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by Lessee or any other person.
♦ Include a standard loss payable endorsement naming Lessor as the loss payee as its interests
may appear.
♦ Include a waiver of subrogation in favor of Lessor.
B. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with
a combined single limit of a minimum of $1,000,000 each occurrence and an aggregate limit of at least $ 2,000,000.
Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited
to, the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements,which shall be indicated on the certificate of insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to
the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs
and any payments made are deemed not to be either payments made or obligations assumed under
any Workers Compensation, disability benefits, or unemployment compensation law or similar law.
♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for
any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
C. Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000 per occurrence,and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
BNSF- Indefinite Term 1.2352—Land Fwm 405;Rev.11/26/02
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Forin Approved by VP-Law
D. Workers Compensation and Employers Liability insurance including coverage for,but not limited
to:
e Lessee's statutory liability under the worker's compensation laws of the state(s) in which the
work is to be performed. If optional under State law, the insurance must cover all employees
anyway.
♦ Employers' Liability(Part B)with limits of at least$500,000 each accident,$500,000 by disease
policy limit, $Fnn non by disease each employee.
E. If construction is to be performed on the Premises by Lessee, Lessee shall procure Railroad Protective
Liability insurance naming only the Lessor as the Insured with coverage of at least$2,000,000 per occurrence and
$6,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the
following:
♦ Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Lessor prior to performing any work or services under this
Lease
Other Requirements:
All policies (applying to coverage listed above)shall contain no exclusion for punitive damages and certificates of
insurance shall reflect that no exclusion exists.
Lessee agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition,
its insurers, through policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The
certificate of insurance must reflect the waiver of subrogation endorsement. Lessee further waives its right of recovery,
and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property
.ender Lessee's care, custody or control.
Lessee's insurance policies through policy endorsement, must include wording which states that the policy shall
be primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must
reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall
include a severability of interest endorsement and shall name Railroad and Staubach Global Services - RR, Inc. as
additional insureds with respect to work performed under this Lease. Severability of interest and naming Railroad and
Staubach Global Services- RR, Inc. as additional insureds shall be indicated on the certificate of insurance.
I
Lessee is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any
deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu of
insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Lease, be
covered by Lessee 's insurance will be covered as if Lessee elected not to include a deductible, self-insured retention or
other financial responsibility for claims. Lessee may elect to fulfill all or any portion of the above-stated insurance
requirements through its program of self-insurance. Lessee shall provide a letter stating that it is self-insured as to the
stated limits and that said coverage shall apply to property within fifty(50)feet of any trackage.
Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificates) of insurance
including an original signature of the authorized representative evidencing the required coverage, endorsements, and
amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any
cancellation, renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of
insurance. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished.
BNSP- indefinite rem Lease—Land - Form 405;Rev.11/26/02
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Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current
Best's,Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the Premises is
iocated.
i
Lessee represents that this Lease has been thoroughly reviewed by Lessee's insurance agent(s)fbroker(s), who
have been instructed by Lessee to procure the insurance coverage required by this Lease. Allocated Loss Expense shall
be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage
to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance
Industry.
If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall provide
and maintain insurance coverages as set forth herein, naming Railroad as an additional insured, and shall require that the
contractor shall release, defend and indemnify Railroad to the same extent and under the same terms and conditions as
Lessee is required to release,defend and indemnify Railroad herein.
Failure to provide evidence as required by this Section 17 shall entitle, but not require, Railroad to terminate this
Lease immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of
Lessee's obligations hereunder.
The fact that insurance(including, without limitation, self-insurance)is obtained by Lessee shall not be deemed to
release or diminish the liability of Lessee including, without limitation, liability under the indemnity provisions of this Lease.
Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage.
For purposes of this Section 17, Railroad shall mean "Burlington Northern Santa Fe Corporation","The Burlington
Northern and Santa Fe Railway Company"and the subsidiaries, successors, assigns and affiliates of each.
Section 18. Water Rights and Use of Wells.
This Lease does not grant, convey or transfer any right to the use of water under any water right owned or
claimed by the Lessor which may be appurtenant to the Premises. All right, title, and interest in and to such water is
expressly reserved unto Lessor, and the right to use same or any part thereof may be obtained only by the prior written
consent of the Lessor. Lessee shall not use, install or permit to be installed or used any wells on the Premises without the
prior written consent of Lessor.
Section 19. Default.
A. An "Event of Default"by Lessee shall have occurred hereunder if any of the following shall occur:
(i) if Lessee violates any safety provision contained in this Lease;
(ii) if Lessee fails to pay rent or any other monetary payment hereunder when due or fails to perform
any other obligations under this Lease and such failure continues thirty (30) days after written notice from Lessor
to Lessee of Lessee's failure to make such payment or perform such obligations;
j
(iii) if a decree or order of a court having jurisdiction over the Premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Lessee or over all
or a substantial part of the property of Lessee shall be entered; or if Lessee becomes insolvent or makes a
transfer in fraud of creditors; or an interim receiver, trustee or other custodian of Lessee or of all or a substantial
part of the property of Lessee shall be appointed or a warrant of attachment, execution, or similar process against
any substantial part of the property of Lessee shall be issued and any such event shall not be stayed,dismissed,
bonded or discharged within thirty(30) days after entry, appointment or issuance;
(iv) if the Premises is abandoned or vacated by Lessee.
RNSF-, Indefinite Term Lease—Land Form 405;Rev.11/26/02 ' I,
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B. _ _ If an Event of Default occurs as provided above, Lessor may, at its option, (i) terminate this Lease by
serving five (5) days notice in writing upon Lessee, in which event Lessee shall immediately surrender possession of the
Premises to Lessor, without prejudice to any claim for arrears of rent or breach of covenant, (ii) proceed by appropriate
judicial proceedings, either at law or in equity, to enforce performance or observance by Lessee of the applicable
provisions of this Lease or to recover damages for a breach thereof, (Hi) cure the default by making any such payment or
performing any such obligation, as applicable, at Lessee's sole expense, without waiving or releasing Lessee from any
obligation, or (iv) enter into and upon the Premises or any part thereof and repossess the same without terminating the
Lease and, without obligations to do so relet the Premises or any part thereof as the agent of Lessee and in such event,
Lessee shall be immediately liable to Lessor for all costs and expenses of such reletting, the cost of any alterations and
repairs deemed necessary by Lessor to effect such reletting and the full amount, if any, by which the rentals reserved in
this Lease for the period of such reletting exceeds the amounts agreed to be paid as rent for the Premises for the period
of resetting. The foregoing rights and remedies given to Lessor are and shall be deemed to be cumulative and the
exercise of any of them shall not be deemed to be an election excluding the exercise by Lessor at any time of a different
or inconsistent remedy. If, on account of breach or default by Lessee of any of Lessee's obligations hereunder, it shall
become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor's rights or remedies
hereunder, then, in any such event, any reasonable amount incurred by Lessor for attorneys' fees shall be paid by
Lessee. Any waiver by Lessor of any default or defaults of this Lease or any delay of Lessor in enforcing any remedy set
forth herein shall not constitute a waiver of the right to pursue any remedy at a later date or terminate this Lease for any
subsequent default or defaults, nor shall any such waiver in any way affect Lessor's ability to enforce any Section of this
Lease. The remedies set forth in this Section 19 shall be in addition to, and not in limitation of, any other remedies that
Lessor may have at law or in equity, and the applicable statutory period for the enforcement of a remedy will not
commence until Lessor has actual knowledge of a breach or default.
Section 20. Termination.
Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall
relinquish possession of the Premises and shall remove any Lessee Improvements, and restore the Premises to
substantially the state and environmental condition in which it was prior to Lessee's use ("Restoration Obligations"). If
essee shall fail within thirty (30) days after the date of such termination of its tenancy to complete the Restoration
Obligations, then Lessor may, at its election (i) either remove the Lessee Improvements or otherwise restore the
Premises, and in such event Lessee shall, within thirty (30) days after receipt of bill therefor, reimburse Lessor for cost
incurred, (ii) upon written notice to Lessee may take and hold any Lessee Improvements and personal property as its sole
property, without payment or obligation to Lessee therefor, or(iii) specifically enforce Lessee's obligation to restore and/or
pursue any remedy at law or in equity against Lessee for failure to so restore. Further, in the event Lessor has consented
to Lessee Improvements remaining on the Premises following termination, Lessee shall, upon request by Lessor, provide
a Bill of Sale in a form acceptable to Lessor conveying such Lessee Improvements to Lessor.
Section 21. Survival of Obligations.
Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification obligations and
any other obligations that have accrued but have not been satisfied under this Lease prior to the termination date shall
survive such termination.
Section 22. Holding Over.
If Lessee fails to surrender the Premises to Lessor upon the termination of this Lease, and Lessor does not
consent in writing to Lessee's holding over, then such holding over will be deemed a month-to-month tenancy. Lessee's
holdover will be subject to all provisions of this Lease.
Section 23. Multiple Party Lessee.
In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee herein
contained shall be the joint and several covenants and agreements of such parties.
DNSF- Indefinite Term Lease—land Form 405;Rev.11/26/02 '..
Form Approved by VP-Law
Section 24. Damage or Destruction.
If at any time during the term of this Lease, the Premises are damaged or destroyed by fire or other casualty, then
Lessor may terminate this Lease or repair and reconstruct the Premises to substantially the same condition in which the
Premises existed immediately prior to the damage or destruction, except that Lessor is not required to repair or
reconstruct any Lessee Improvements, personal property, furniture, trade fixtures, or office equipment located on the
Premises and removable by Lessee under the provisions of this Lease.
i
Section 25. Eminent Domain.
If any part of the Premises are taken by eminent domain, Lessor may either terminate this Lease or continue the
Lease in effect. If Lessor elects to continue the Lease, rent will be reduced in proportion to the area of the Premises taken
by eminent domain, and Lessor shall repair any damage to the Premises resulting from the taking. All sums awarded or
agreed upon between Lessor and the condemning authority for the taking of the interest of Lessor or Lessee, whether as
damages or as compensation, will be the property of Lessor; without prejudice, however, to claims of Lessee against the
condemning authority for moving costs and the unamortized cost of leasehold improvements paid for by Lessee taken by
the condemning authority. If this Lease is terminated under this Section 25, rent will be payable up to the date that
possession is taken by the condemning authority, and Lessor shall refund to Lessee any prepaid unaccrued rent less any
sum then owing by Lessee to Lessor.
Section 26. Representations.
Neither Lessor nor Lessor's agents have made any representations or promises with respect to the Premises
except as herein expressly set forth.
Section 27. Signs.
No signs are to be placed on the Premises without the prior written approval of Lessor of the size, design, and
ontent thereof.
Section 28. Consents and Approvals.
Whenever in this Lease Lessor's consent or approval is required, such consent or approval shall be in Lessor's
sole and absolute discretion. If Lessor delays or refuses such consent or approval, such consent or approval shall be
deemed denied, and Lessee in no event will be entitled to make, nor will Lessee make, any claim, and Lessee hereby
waives any claim, for money damages (nor will Lessee claim any money damages by way of set-off counterclaim or
defense) based upon any claim or assertion by Lessee that Lessor unreasonably withheld or unreasonably delayed its
consent or approval.
Section 29. Captions.
The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or
describe the scope of this Lease nor the intent of any provision thereof.
Section 30. Public Record.
Subject to the requirements of RCW 42.17.250 through 42.17,310 (Public Disclosure), it is understood and
agreed that this Lease shall not be placed of public record. Lessor shall be given timely notice and opportunity to
comment on any request for information encompassing this lease.
Section 31. Governing Law.
All questions concerning the interpretation or application of provisions of this Lease shall be decided according to
the laws of the state in which the Premises are located.
BNSF- Indefinite Temi Lease—land Fonn 405;Rev.11/26/02
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Form Approved by VP-Law
Section 32. No Waiver.
One or more waivers of any covenant, term, or condition of this Lease by Lessor shall not be construed as a
waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by Lessor to or of any
act by Lessee requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
Section 33. Binding Effect.
All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable by the
respective successors and assigns of Lessor and Lessee to the same extent as if each such successor and assign was
named a party to this Lease.
Section 34. Force Madre.
Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in, or
prevented from the performance required under this Lease (except for payment of monetary obligations) by reason of
earthquakes, landslides, strikes, lockouts, labor troubles, failure of power,riots, insurrection, war, acts of God or other
reason of the like nature not the fault of the party delayed in performance of its obligation, such party is excused from
such performance for the period of delay. The period for the performance of any such act will then be extended for the
period of such delay.
Section 35. Entire Agreement/Modification.
This Lease is the full and complete agreement between Lessor and Lessee with respect to all matters relating to
lease of the Premises and supersedes any and all other agreements between the parties hereto relating to lease of the
Premises. If this Lease is a reissue of an existing agreement held by Lessee, it shall supersede and cancel the previous
lease or leases, without prejudice to any liability accrued prior to cancellation. This Lease may be modified only by a
vritten agreement signed by Lessor and Lessee.
Section 36. Notices.
Any notice or documents required or permitted to be given hereunder by one party to the other shall be in writing
and the same shall be given or shall be deemed to have been served and given if (1) delivered in person to the address
hereinafter set forth for the party to whom the notice is given, (ii) placed in the United States mail, certified - return receipt
requested, addressed to such party at the address hereinafter set forth, or(ill)deposited into the custody of any reputable
overnight carrier for next day delivery, addressed to such party at the address hereinafter set forth. Any notice mailed as
above shall be effective upon its deposit into the custody of the U. S. Postal Service or such reputable overnight carrier,
as applicable; all other notices shall be effective upon receipt. All rent and other payments due to Lessor hereunder shall
also be made as provided in Section 3(A) above, and delivery of such rental and other payments shall only be effective
upon actual receipt by Lessor. From time to time either party may designate another address or telecopy number within
the 48 contiguous states of the United States of America for all purposes of this Lease by giving the other party not less
than fifteen (15) days' advance written notice of such change of address in accordance with the provisions hereof.
If to Lessee:
City of Kent
220 Fourth Avenue South
Kent, WA 98032-5895
Attn: Public Works Director
If to Lessor:
The Burlington Northern and Santa Fe Railway Company
2500 Lou Menk Drive, A013-3
Fort Worth, Texas 76131-2828
Attn: Director—Real Estate
BNSF- Indefinite Term Lease -Land Form 405;Rev. 11/26/02
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Form Approved by VP-Law
i
i
With a copy to:
Staubach Global Services-RR, Inc.
5650 North Riverside Drive, Suite 101
Fort Worth, Texas 76137
Attn: Director—Leases and Permits
Section 37. Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an
original but which together shall constitute one and the same instrument, and the signature pages from any counterpart
may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Agreement
may also be exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be
deemed to be an original signature for all purposes.
Section 38. Relationship.
Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held, by virtue of
this Lease, to be the agent, partner, joint venturer, or associate of the other party hereto, it being expressly understood
and agreed that the relationship between the parties hereto is and at all times during the term of this Lease, shall remain
that of Lessor and Lessee.
Section 39. Severability.
If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective
during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
Section 40. _Transferability; Release of Lessor.
Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this j
Lease and in the Premises, and upon such transfer, Lessor shall be released from any further obligations hereunder, and
Lessee agrees to look solely to the successor in interest of Lessor for the performance of such obligations.
Section 41. Tax Waiver.
Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal
regarding the Premises (including Lessor's personalty), irrespective of whether Lessor contests the same.
Section 42. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing party
shall be entitled to reasonable attorneys'fees, costs, and necessary disbursements in addition to any relief to which it may
be entitled.
I
BNSF- Indcrinite Term Lease—land - Fonn 405;Rev.11/26/02
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Form Approved by VP-Law
i
Executed by the parties to be effective as of the Effective Date above.
LESSOR
The Burlington Northern and Santa Fe Railway Company
By
Name:
Title:
LESSEE
City of Kent
By:
Name:
Title:
III
BNSr- Indefinite Tenn Lease—Land rem 405;Rev. 11/26/02
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EXHIBIT"B"
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (the "Agreement") supplements that certain Indefinite Term Lease for Land
("Lease") dated by and between The Burlington Northern and Santa Fe Railway Company, a
Delaware corporation ("Lessor") and , a(n) ("Lessee"). In the event of
any conflict between the provisions of this Agreement and the provisions of the Lease, the provisions of this Agreement
shall control, Unless the context otherwise requires, capitalized terms not defined herein shall have t he meaning
assigned to such terms in the Lease.
In the event Lessee uses one or more general contractors or subcontractors ("Contractor(s)") for any
improvements, alterations, build out, finish out, or other similar work on the Premises ("Work"), Lessee agrees to and
accepts the following:
I
1. Prior to performing any Work, Lessee shall obtain Lessor's approval of each Contractor and any Work to
be performed by such Contractor shall be performed pursuant to a written contract between Lessee and the Contractor
("Work Contract")approved in advance by Lessor.
2. Prior to commencing any Work, Lessee shall submit for Lessor's review and approval Lessee's plans,
specifications and/or drawings for such Work (collectively, "Plans") in accordance with the procedure set forth in the
Lease.
3. All Work must be performed at Lessee's sole cost and expense and in accordance with the Plans which
have previously been approved by Lessor.
4. Lessee shall cause its Contractors to meet all insurance and indemnification requirements required of
Lessee under the Lease and shall obtain indemnification and insurance provisions from its Contractors in favor of Lessor
and in the same form as set forth in the Lease.
5. Prior to the commencement of the Work, all required local building, fire, health and other departments
must approve all Plans requiring approval by local building codes. In addition, the Work shall be performed, installed
and/or constructed in accordance with all applicable federal, state and local laws, codes, ordinances, rules and
regulations, including without limitation, the Americans With Disabilities Act of 1990, 42 U.S.C.A. 12101 et seq.
6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits for the
Work with copies furnished to Lessor prior to commencement of any construction.
7. Lessee shall furnish Lessor, for Lessor's approval, a copy of its schedule of the Work. Lessee shall
perform the Work in accordance with the schedule approved by Lessor, and any changes in such schedule must be
approved by Lessor in writing in advance.
8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Base Rent
and other amounts due under the Lease shall commence on the Commencement Date provided in the Lease.
Notwithstanding anything herein to the contrary, Lessor may, in Lessor's sole discretion, permit Lessee and Lessee's
Contractors to enter the Premises prior to the Commencement Date in order to commence Work; provided, however, that
Lessee agrees that such early entry or occupation of the Premises shall be governed by all of the terms and conditions of
the Lease and this Agreement(including the insurance and indemnity requirements therein), as such terms and conditions
are more specifically set forth in the Lease and this Agreement.
9_ During construction, Lessor reserves the right to inspect the Work at any time upon reasonable notice to
Lessee.
10. Lessee's Contractors shall keep the Premises reasonably clean at all times during the performance of the
Work.
11 . All Work must be performed in a good and workmanlike manner, free from defects in materials and
orkmanship.
1
Form Approved by VP-Law
12. If any materiaiman's, mechanic's, laborer's or any other liens for any work claimed to have been
undertaken for Lessee or at Lessee's request is filed against the Premises, Lessee shall indemnify, defend and hold
harmless Lessor from any such liens filed during the term of the Lease and shall, at Lessee's own expense, cause all
such liens to be removed within ten (10) days after written notice from Lessor to Lessee of the filing thereof.
13. Lessee must obtain Lessor's reasonable approval that the Work has been completed in substantial
accordance with the approved plans and specifications. Lessor shall receive copies of all Certificates of Occupancy and
as-built drawings (electrical, mechanical,fire and architectural)prior to approving the Work.
14 All guarantees and warranties provided by Lessee's Contractors shall be issued to Lessee and, for Work
which is or will at the termination of this Lease be Lessor's property, also to Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first set
forth above.
A
LESSOR:
The Burlington Northern and Santa RailWay Company
Name: AN of i
Title:
LESS '
BY. 4V
Name: F -
Title:
BNSF- Indefinite Term Ixase—Land - Form 405;Rev. 11/26/02
- 2 -
December 30, 2003
i
Mary Kaye Baidue
Burlington Northern Santa Fe Railway Co
Staubach Company
999 Third Avenue, Suite 2120
Seattle,WA 98104
RE: City of Kent,Washington
Proof of Comprehensive General Liability and Auto Liability for lease of Alley
between Gowe St. and Titus St. in Kent,WA.
Evidence of Coverage
The above captioned entities are members of the Washington Cities Insurance Authority
(WCIA), which is a self-insured pool of 108 municipal corporations in the State of
Washington.
i
WCIA has $2 million per occurrence combined single limit of liability in its self insured
layer that may be applicable in the event an incident occurs that is deemed to be
attributed to the negligence of the member. This coverage includes bodily injury
including death andpersonal injury,property damage, fire legal liability, and products
completed operations. This coverage also includes business automobile coverage in the
amount of$2 million,property damage and bodily injury, for all vehicles including
owned, hired and non-owned.
WCIA provides contractual liability coverage to the City of Kent. The contractual
liability coverage provides that WCIA shall pay on behalf of Kent all sums which the
member shall be obligated to pay by reason of liability assumed under contract by the
member. This would include the hold harmless provision written in your favor for the
agreement with the City of Kent,
WCIA is an Interlocal Agreement among municipalities and liability is self funded by the
membership. As there is no insurance policy involved and WCIA is not an insurance
company, your organization cannot be named as an"additional insured".
I
Sincerely;
i
Eric B. Larson
Assistant Director
Washington Cities Insurance Authority(WCIA)
Cc: Chris Hills, City of Kent
PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
Phone:253-856-5500
® Fax: 253-856-6500
KE ` -U T Address: 220 Fourth Avenue S.
WASHINGTON
Kent,WA. 98032-5895
DATE: March 1. 2004
TO: Public Works Committee
FROM: Do kstrom, Public Worlcs Director
THROUGH: V` df
SUBJECT: Puget Sound Energy Construction Agreement for 228rh Street Underground
Power Conversion
F
ION: Recommend authorizing the Mayor to sign the Puget Sound Energy Construction
ement upon concurrence of the language therein by the City Attorney and the Public Worlcs
tor.
1
SUMMARY:
As part of the South 228a' Street project, overhead utilities need to be converted to underground
in accordance with City ordinance. The attached agreement with Puget Sound Energy
establishes a scope of work, schedule, and costs for PSE's work.
The Public Works Director recommends approval of the agreement and that the Mayor be
authorized to sign same.
BUDGET IMPACT: No Unbudgeted Fiscal/Persormel Tinpact
BACKGROUND
Existing overhead power lines are in conflict with the future location of the South 228r" Street
bridge over the Green River. The City has requested PSE to relocate overhead power lines on
Russell Road and Frager Road for approximately 1800 feet to allow for construction of the S.
228rh St. improvements. The City will provide the trenching and vault excavation. PSE will
provide and install the conduits and vaults. The schedule 74 conversion agreement outlines the
requirements and the 60/40 cost split of which the City's share is approximately $40,000.
Mayor White and Kent City Council 1 PSE Construction Agreement
March 1,2004
PUGET
SOUND
ENERGY
I
February 13,2004
y�Ta gA
Mr. Mark Madfai, P.E.
Senior Project Engineert
City of Kent Public
220 Fourth AvenueWorks South s "'
Kent, WA 98032-5895
RE: South 228`h Street Extension:Phase 1
PSE# 101019557
Dear Mr. Madfai:
I am pleased to submit for your review and execution, the Schedule 74 Construction
Agreement for the South 228th Street Extension Phase 1 Conversion Project. A draft
Project Plan,which includes a construction cost estimate, is attached to the Construction
Agreement as "Exhibit A". Please review the Agreement and Project Plan and provide
any comments to me as soon as possible. If they meet with the City's approval,please
sign and return both copies of the Agreement tome for execution by PSE. One original
will be returned to you for your files.
We look forward to working with the City on this project. Please feel free to contact me
at(253) 395-6867 should you have any questions.
Sincerely,
Mary Au—sb�, AICP
Municipal Liaison Manager
I
Attachments: 2 Original Construction Agreements
2 Project Plans (Exhibit A to Construction Agreement)
1 Set Final Design Drawings
Cc: Tom Quann,Potelco j
Puget Sound Energy, Inc. m 6Wb South 228th Street Kent,WA 98032
SCHEDULE 74 UNDERGROUND CONVERSION
Project Construction Agreement
Project Name: 228th Street Phase 1 Conversion
Project Number: 10487904/101019557 j
THIS Agreement, dated as of this_day of 2004, is made by and between
the CITY OF KENT, a Municipal Corporation (the"Government Entity'), and PUGET SOUND ENERGY,
Inc., a Washington Corporation (the"Company")
RECITALS
A. The Company is a public service company engaged in the sale and distribution of electric
energy, and pursuant to its franchise or other rights from the Government Entity, currently locates its
electric distribution facilities within the jurisdictional boundaries of the Government Entity.
B. The Government Entity has determined that it is necessary to replace the existing overhead
electric distribution system within the area specified in the Project Plan (as defined below) (the
"Conversion Area") with a comparable underground electric distribution system, all as more specifically
described in the Project Plan (the"Conversion Project")
C. The Government Entity and the Company have previously entered into a Project Design
Agreement dated as of December 1. 2003 (the "Design Agreement"), pursuant to which the parties
completed certain engineering design, cost assessment, operating rights planning and other preliminary
work relating to the Conversion Project and, in connection with that effort, developed the Project Plan.
D. The Government Entity and the Company wish to execute this written contract in accordance
with Schedule 74 of the Company's Electric Tariff G ("Schedule 74") to govern the completion of the
Conversion Project, which both parties intend shall qualify as an underground conversion under the terms
of Schedule 74.
AGREEMENT
The Government Entity and the Company therefore agree as follows:
1. Definitions.
(a) Unless specifically defined otherwise herein, all terms defined in Schedule 74 shall have the same
meanings when used in this Agreement, including, without limitation,the following:
i) Cost of Conversion;
i) Public Thoroughfare;
iii) Temporary Service;
iv) Trenching and Restoration;
v) Underground Distribution System; and
vi) Underground Service Lines.
(b) "Company-Initiated Upgrade"shall mean any feature of the Underground Distribution System
which is required by the Company and is not reasonably required to make the Underground
Distribution System comparable to the overhead distribution system being replaced. For
purposes of the foregoing, a"comparable" system shall include, unless the Parties otherwise
agree,the number of empty ducts (not to exceed two(2),typically having a diameter of 6" or less)
Construction Agreement: Schedule 74
City of Kent:228"Street Ph.1 Conversion
PS 410487904
II
of such diameter and number as may be specified and agreed upon in the Project Plan necessary
to replicate the load-carrying capacity(system amperage class) of the overhead system being
replaced.
i
(c) "Estimated Reimbursable Private Conversion Costs"shall mean the Company's good faith
estimate of the Reimbursable Private Conversion Costs, as specified in the Project Plan and as
changed and adjusted from time to time in accordance with Section 6, below.
(d) "Estimated Reimbursable Temporary Service Costs"shall mean the Company's good faith
estimate of the Reimbursable Temporary Service Costs, as specified in the Project Plan and as
changed and adjusted from time to time in accordance with Section 6, below.
(e) "Estimated Reimbursable Upgrade Costs"shall mean the Company's good faith estimate of the
Reimbursable Upgrade Costs, as specified in the Project Plan and as changed and adjusted from
time to time in accordance with Section 6, below.
(f) "Estimated Shared Company Costs"shall mean the Company's good faith estimate of the Shared
Company Costs, as specified in the Project Plan and as changed and adjusted from time to time
in accordance with Section 6, below.
(g) "Estimated Shared Government Costs"shall mean the Government Entity's good faith estimate of
the Shared Government Costs, as specified in the Project Plan and as changed and adjusted
from time to time in accordance with Section 6, below.
(h) "Gnvernment-Requested Upgrade"shall mean any feature of the Underground Distribution
System which is requested by the Government Entity and is not reasonably required to make the
Underground Distribution System comparable to the overhead distribution system being replaced.
For purposes of the foregoing, any empty ducts installed at the request of the Government Entity
shall be a Government-Requested Upgrade.
(i) "Party'shall mean either the Company,the Government Entity, or both.
(j) "Private Property Conversion"shall mean that portion, if any, of the Conversion Project for which
the existing overhead electric distribution system is located, as of the date determined in
accordance with Schedule 74, (1) outside of the Public Thoroughfare, or(ii) pursuant to rights not
derived from a franchise previously granted by the Government Entity or pursuant to rights not
otherwise previously granted by the Government Entity.
(k) "Project Plan" shall mean the project plan developed by the Parties under the Design Agreement
and attached hereto as Exhibit A, as the same maybe changed and amended from time to time in
accordance with Section 6, below. The Project Plan includes, among other things, (1) a detailed
description of the Work that is required to be performed by each Party and any third party, (ii) the
applicable requirements and specifications for the Work, (iii) a description of the Operating Rights
that are required to be obtained by each Party for the Conversion Project (and the requirements
and specifications with respect thereto), (iv) an itemization and summary of the Estimated Shared
Company Costs, Estimated Shared Government Costs, Estimated Reimbursable Private
Conversion Costs (if any), Estimated Reimbursable Temporary Service Costs (if any)and
Estimated Reimbursable Upgrade Costs (if any), and(v)the Work Schedule.
(1) "Operating Rights"shall mean sufficient space and legal rights for the construction, operation,
repair, and maintenance of the Underground Distribution System.
(m) "Reimbursable Private Conversion Costs"shall mean (1) all Costs of Conversion, if any, incurred
by the Company which are attributable to a Private Property Conversion, less (ii)the distribution
pole replacement costs (if any)that would be avoided by the Company on account of such Private
Property Conversion, as determined consistent with the applicable Company distribution facilities
Construction Agreement: Schedule 74 2
City of Kent:228�h Street Ph.1 Conversion
PSE#10487904
replacement program, plus (iii) just compensation as provided by law for the Company's interests
in real property on which such existing overhead distribution system was located prior to
conversion; provided that the portion of the Reimbursable Private Conversion Costs attributable to
the Costs of Conversion under subparagraph (i) of this paragraph shall not exceed the Estimated
Reimbursable Private Conversion Costs without the prior written authorization of the Government
Entity,
(n) "Reimbursable Temporary Service Costs"shall mean all costs incurred by the Company which
are attributable to (i) any facilities installed as part of the Conversion Project to provide Temporary
Service, as provided for in Schedule 74, and (ii)the removal of any facilities installed to provide
Temporary Service (less salvage value of removed equipment); provided that the Reimbursable
Temporary Service Costs shall not exceed the Estimated Reimbursable Temporary Service Costs
without the prior written authorization of the Government Entity.
(o) "Reimbursable Upgrade Costs"shall mean all Costs of Conversion incurred by the Company
which are attributable to any Government-Requested Upgrade; provided that the Reimbursable
Upgrade Costs shall not exceed the Estimated Reimbursable Upgrade Costs without the prior
written authorization of the Government Entity.
(p) "Shared Company Costs" shall mean all Costs of Conversion (other than Reimbursable Upgrade
Costs, Reimbursable Private Conversion Costs and Reimbursable Temporary Service Costs)
incurred by the Company in connection with the Conversion Project; provided, however,that the
Shared Company Costs shall not exceed the Estimated Shared Company Costs without the prior
written authorization of the Government Entity. For the avoidance of doubt, the "Shared Company
Costs"shall, as and to the extent specified in the Design Agreement, include the actual,
reasonable costs to the Company for the"Design Work" performed by the Company under the
Design Agreement.
(q) "Shared Government Costs"shall mean all Costs of Conversion incurred by the Government
Entity in connection with (i) any duct and vault installation Work which the Parties have specified
in the Project Plan is to be performed by the Government Entity as part of the Government Work,
and (ii)the acquisition of any Operating Rights which the Parties have, by mutual agreement,
specified in the Project Plan are to be obtained by the Government Entity for the Conversion
Project, but only to the extent attributable to that portion of such Operating Rights which is
necessary to accommodate the facilities of the Company; provided, however, that the Shared
Government Costs shall not exceed the Estimated Shared Government Costs without the prior
written authorization of the Company.
(r) "Total Shared Costs"shall mean the sum of the Shared Company Costs and the Shared
Government Costs. For the avoidance of doubt, the Total Shared Costs shall not include, without
limitation, (i) costs to the Government Entity for Trenching and Restoration, or (ii) costs associated
with any joint use of trenches by other utilities as permitted under Section 3(b).
(s) "Work"shall mean all work to be performed in connection with the Conversion Project, as more
specifically described in the Project Plan, including, without limitation, the Company Work (as
defined in Section 2(a), below) and the Government Work(as defined in Section 3(a), below).
(t) "Work Schedule" shall mean the schedule specified in the Project Plan which sets forth the
milestones for completing the Work, as the same may be changed and amended from time to
time in accordance with Section 6, below.
2. Obligations of the Company.
Construction Agreement:Schedule 74 s
City of Kent:22eh Street Ph.1 Conversion
PSE#10487904 '...
(a) Subject to the terms and conditions of this Agreement, the Company shall do the following as
specified in, and in accordance with the design and construction specifications and other
requirements set forth in, the Project Plan (the "Company Work"):
i
i) furnish and install an Underground Distribution System within the Conversion Area
(excluding any duct and vault installation or other Work which the Parties have
specified in the Project Plan is to be performed by the Government Entity);
ii) provide a Company inspector on-site at the times specified in the Work Schedule to
inspect the performance of any duct and vault installation Work which the Parties
have specified in the Project Plan is to be performed by the Government Entity; and
iii) upon connection of those persons or entities to be served by the Underground
Distribution System and removal of facilities of any other utilities that are connected to
the poles of the overhead system, remove the existing overhead system (including
associated wires and Company-owned poles)of 15,000 volts or less within the
Conversion Area except for Temporary Services.
(b) Upon request of the Government Entity, the Company shall provide periodic reports of the
progress of the Company Work identifying (i)the Company Work completed to date, (ii) the
Company Work yet to be completed, and (iii)an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Company Costs,the Estimated
Reimbursable Private Conversion Costs (if any),the Estimated Reimbursable Temporary Service
Costs (if any),the Estimated Reimbursable Upgrade Costs (if any) and the Work Schedule.
(c) Except as otherwise provided in the Company's Electric Tariff G,the Company shall own, operate
and maintain all electrical facilities installed pursuant to this Agreement including, but not limited
to, the Underground Distribution System and Underground Service Lines.
(d) Subject to the terms and conditions of this Agreement, the Company shall perform all Company
Work in accordance with the Project Plan,the Work Schedule and this Agreement.
3. Oblications of the Government Entity.
(a) Subject to the terms and conditions of this Agreement, the Government Entity shall do the
following as specified in, and in accordance with the design and construction specifications and
other requirements set forth in,the Project Plan (the"Government Work"):
i) provide the Trenching and Restoration;
ii) perform the surveying for alignment and grades for ducts and vaults; and
iii) perform any duct and vault installation and other Work which the Parties have
specified in the Project Plan is to be performed by the Government Entity.
(b) Other utilities may be permitted by the Government Entity to use the trenches provided by the
Government Entity for the installation of their facilities so long as such facilities or the installation
thereof do not interfere (as determined pursuant to the Company's electrical standards)with the
Underground Distribution System or the installation or maintenance thereof. Any such use of the
trenches by other utilities shall be done subject to and in accordance with the joint trench design
specifications and installation drawings set forth or otherwise identified in the Project Plan, and the
Government Entity shall be responsible for the coordination of the design and installation of the
facilities of the other utilities to ensure compliance with such specifications and drawings.
(c) Upon request of the Company,the Government Entity shall provide periodic reports of the
progress of the Government Work identifying (i)the Government Work completed to date, (ii)the
Government Work yet to be completed, and(iii)an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Government Costs and the Work
Schedule.
Construction Agreement: Schedule 74 4
City of Kent:228h Street Ph.1 Conversion
PSE#10487904
i
(d) The Government Entity shall be responsible for coordinating all work to be performed in
connection with the street improvement program within the Conversion Area.
(e) Subject to the terms and conditions of this Agreement, the Government Entity shall perform all
Government Work in accordance with the Project Plan,the Work Schedule and this Agreement.
4. Work Schedule.
(a) The Government Entity and the Company have agreed upon the Work Schedule as set forth in
the Project Plan. Changes to the Work Schedule shall be made only in accordance with
Section 6, below.
(b) Promptly following the execution of this Agreement, and upon completion by the Government
Entity of any necessary preliminary work, the Government Entity shall hold a pre-construction
meeting involving all participants in the Conversion Project to review project design, coordination
requirements, work sequencing and related pre-mobilization requirements. Following the pre-
construction meeting, the Government Entity shall give the Company written notice to proceed
with the Work at least ten (10) business days prior to the commencement date specified in the
Work Schedule.
(c) Subject to the terms and conditions of this Agreement, each Party shall perform the Work
assigned to it under this Agreement in accordance with the Work Schedule. So long as the
Company performs the Company Work in accordance with the Work Schedule,the Company
shall not be liable to the Government Entity(or its agents, servants, employees, contractors,
subcontractors, or representatives)for any claims, actions,damages, or liability asserted or
arising out of delays in the Work Schedule.
5. Location of Facilities.
All facilities of the Company installed within the Conversion Area pursuant to this Agreement shall be
located, and all related Operating Rights shall be obtained, in the manner set forth in the applicable
provisions of Schedule 74, as specified by the Parties in the Project Plan.
6. Changes.
(a) Either Party may, at any time, by written notice thereof to the other Party, request changes in the
Work within the general scope of this Agreement(a"Request for Change"), including, but not
limited to: (i) changes in, substitutions for, additions to or deletions of any Work; (ii) changes in the
specifications, drawings and other requirements in the Project Plan, (iii) changes in the Work
Schedule, and (iv) changes in the location, alignment, dimensions or design of items included in
the Work. No Request for Change shall be effective and binding upon the Parties unless signed
by an authorized representative of each Party.
(b) If any change included in an approved Request for Change would cause a change in the cost of,
or the time required for, the performance of any part of the Work, an equitable adjustment shall be
made in the Estimated Shared Company Costs,the Estimated Shared Government Costs, the
Estimated Reimbursable Private Conversion Costs (if any),the Estimated Reimbursable
Temporary Service Costs (if any), the Estimated Reimbursable Upgrade Costs (if any) and/or the
Work Schedule to reflect such change. The Parties shall negotiate in good faith with the objective
of agreeing in writing on a mutually acceptable equitable adjustment. If the Parties are unable to
agree upon the terms of the equitable adjustment, either Party may submit the matter for
resolution pursuant to the dispute resolution provisions in Section 10, below.
(c) The Work Schedule, the Estimated Shared Company Costs, the Estimated Shared Government
Costs,the Estimated Reimbursable Private Conversion Costs, the Estimated Reimbursable
Temporary Service Costs and/or the Estimated Reimbursable Upgrade Costs shall be further
Construction Agreement:Schedule 74 s
City of Kent:228'"Street Ph.1 Conversion
PSE#10487904
li
equitably adjusted from time to time to reflect any change in the costs or time required to perform
the Work to the extent such change is caused by: (i) any Force Majeure Event under Section 11,
below, (I!)the discovery of any condition within the Conversion Area which affects the scope,cost,
schedule or other aspect of the Work and was not known by or disclosed to the affected Party
prior to the date of this Agreement, or (iii) any change or inaccuracy in any assumptions regarding
the scope, lest, schedule or other aspect of the work which are expressly identified nv tte
he Parties
in the Project Plan. Upon the request of either Party,the Parties will negotiate in good faith with
the objective of agreeing in writing on a mutually acceptable equitable adjustment. If, at anytime
thereafter, the Parties are unable to agree upon the terms of the equitable adjustment,either
Party may submit the matter for resolution pursuant to the dispute resolution provisions in
Section 10, below.
(d) Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually acceptable
equitable adjustment, each Party shall, if requested by the other Party, proceed with the Work in
accordance with any approved Request for Change. Any request to proceed hereunder must be
accompanied by a written statement setting forth the requesting Party's reasons for rejecting the
proposed equitable adjustment of the other Party.
7. Compensation and Payment.
(a) Subject to and in accordance with the terms and conditions of this Agreement(including,without
limitation,the payment procedures set forth in this Section 7), payment in connection with the
Conversion Project and this Agreement shall be as follows:
I) The Total Shared Costs shall be allocated to the Parties in the following percentages:
(A) sixty percent (60%)to the Company, and (B) forty percent (40%)to the
Government Entity.
ii) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Private Conversion Costs, if any.
iii) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Upgrade Costs, if any.
iv) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Temporary Service Costs, if any.
v) The Government Entity shall pay one hundred percent (100%) of the costs it incurs to
perform that portion of the Government Work specified in Section 3(a)(1) and (ii) (i.e.,
Trenching and Restoration and surveying).
vi) The Company shall pay one hundred percent(100%) of the costs it incurs to design,
provide and construct any Company-Initiated Upgrade.
vi!) The Company shall pay one hundred percent (100%) of the costs it incurs to obtain
Operating Rights outside the Public Thoroughfare.
(b) Based on the allocation of responsibilities set forth in Section 7(a), above,the Parties shall
determine the net amount payable by the Government Entity or the Company, as applicable,to
the other Party under this Agreement (the "Net Amount"). The Net Amount shall be determined
by using the amount of the Total Shared Costs allocated to the Government Entity under
Section 7(a)(i), and adjusting such amount as follows:
i) Subtracting (as a credit to the Government Entity)the amount of the Shared
Government Costs.
ii) Adding (as a credit to the Company)the amount of all Reimbursable Private
Conversion Costs, Reimbursable Upgrade Costs and Reimbursable Temporary
Service Costs.
i) Subtracting (as a credit to the Government Entity) any payments previously made to
the Company by the Government Entity under the Design Agreement which, under
the terms of the Design Agreement, are to be credited to the Government Entity
under this Agreement.
Construction Agreement:Schedule 74 s
City of Kent: 2281h Street Ph.1 Conversion
PSE#10487904
The Net Amount, as so calculated, (A)will be an amount payable to the Company if it is a positive
number,and (B) shall be an amount payable to the Government Entity if it is a negative number.
(c) Within sixty (60) business days of completion of the Conversion Project, the Government Entity
shall provide the Company with an itemization of the Shared Government Costs (the"Government
Itemization"),together with such documentation and Information as the Company may reasonably j
request to verify the Government Itemization. The Government Itemization shall, at a minimum,
break down the Shared Government Costs by the following categories, as applicable: (i) property
and related costs incurred and/or paid by the Government Entity, including any costs of obtaining
Operating Rights, and (ii) construction costs incurred and/or paid by the Government Entity,
including and listing separately inspection, labor, materials and equipment, overhead and all costs
charged by any agent, contractor or subcontractor of the Government Entity.
(d) Within thirty(30) business days after the Company's receipt of the Government Itemization and
requested documentation and information,the Company shall provide the Government Entity a
written statement(the "Company Statement") showing (1) an itemization of the Shared Company
Costs, (ii)the Parties' relative share of the Total Shared Costs based on the Company's
itemization of the Shared Company Costs and the Government Entity's itemization of the Shared
Government Costs set forth in the Government Itemization, (iii) any Reimbursable Private
Conversion Costs, (iv) any Reimbursable Upgrade Costs, (v) any Reimbursable Temporary
Service Costs, (vi) any credits to the Government Entity for payments previously made to the
Company by the Government Entity under the Design Agreement which, under the terms of the
Design Agreement, are to be credited to the Government Entity under this Agreement, and
(vii)the Net Amount, as determined in accordance with Section 7(b), above, together with such
documentation and information as the Government Entity may reasonably request to verify the
Company Statement. The itemization of the Shared Company Costs included in the Company
Statement shall, at a minimum, break down the Shared Company Costs by the following
categories, as applicable: (i) design and engineering costs, and (ii) construction costs, including
and listing separately inspection, labor, materials and equipment, overhead and all costs charged
by any agent, contractor or subcontractor of the Company.
(e) Within thirty(30) business days after the Government Entity's receipt of the Company Statement
and requested documentation and information,the Net Amount shall be paid by the owing Party to
the other Party, as specified in the Company Statement.
8. Indemnification.
(a) The Government Entity releases and shall defend, indemnify and hold the Company harmless
from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited
to, reasonable attorneys'fees) caused by or arising out of any negligent act or omission or willful
misconduct of the Government Entity in its performance under this Agreement. During the
performance of such activities the Government Entity's employees or contractors shall at all times
remain employees or contractors, respectively,of the Government Entity.
(b) The Company releases and shall defend, indemnify and hold the Government Entity harmless
from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited
to, reasonable attorneys'fees) caused by or arising out of any negligent act or omission or willful
misconduct of the Company in its performance under this Agreement. During the performance of
such activities the Company's employees or contractors shall at all times remain employees or
contractors, respectively, of the Company.
(c) Solely for purposes of enforcing the indemnification obligations of a Party under this Section 8,
each Party expressly waives its immunity under Title 51 of the Revised Code of Washington, the
Industrial Insurance Act, and agrees that the obligation to indemnify, defend and hold harmless
provided for in this Section 8 extends to any such claim brought against the indemnified Parry by
or on behalf of any employee of the indemnifying Party. The foregoing waiver shall not in any way
Construction Agreement:Schedule 74 7
City of Kent:2281h Street Ph.1 Conversion
PSE#10487904
preclude the indemnifying Party from raising such immunity as a defense against any claim
brought against the indemnifying Party by any of its employees.
9. Conversion of Service to Customers within Conversion Area.
I
(a) Upon commencement of the Work, the Government Entity shall notify all persons and entities
within the Conversion Area that service lines to such customers must be converted from overhead
to underground service within the applicable statutory period following written notice from the
Government Entity that service from underground facilities are available in accordance with RCW
35.96.050. Upon the request of any customer, other than a single family residential customer,
within the Conversion Area, the Company shall remove the overhead system and connect such
persons'and entities' Underground Service Lines to the Underground Distribution System.
(b) The Parties acknowledge that single family residences within the Conversion Area must (i)
provide a service trench and conduit, in accordance with the Company's specifications,from the
underground meter base to the point of service provided during the conversion, and (ii) pay for the
secondary service conductors as defined in Schedule 85 of the Company's Electric Tariff G. The
Government Entity shall exercise its authority to order disconnection and removal of overhead
facilities with respect to owners failing to convert service lines from overhead to underground
within the timelines provided in RCW 35.96.050.
10. Dispute Resolution.
(a) Any dispute, disagreement or claim arising out of or concerning this Agreement must first be
presented to and considered by the Parties. A Party who wishes dispute resolution shall notify the
other Party in writing as to the nature of the dispute. Each Party shall appoint a representative
who shall be responsible for representing the Party's interests. The representatives shall exercise
good faith efforts to resolve the dispute. Any dispute that is not resolved within ten (10) business
days of the date the disagreement was first raised by written notice shall be referred bythe
Parties' representatives in writing to the senior management of the Parties for resolution. In the
event the senior management are unable to resolve the dispute within twenty(20) business days
(or such other period as the Parties may agree upon), each Party may pursue resolution of the
dispute through other legal means consistent with the terms of this Agreement. All negotiations
pursuant to these procedures for the resolution of disputes shall be confidential and shall be
treated as compromise and settlement negotiations for purposes of the state and federal rules of
evidence.
(b) Any claim or dispute arising hereunder which relates to any Request for Change or any equitable
adjustment under Section 6, above, or the compensation payable by or to either Party under
Section 7, above, and which is not resolved by senior management within the time permitted
under Section 10(a), above, shall be resolved by arbitration in Seattle,Washington, under the
Construction Industry Arbitration Rules of the American Arbitration Association then in effect. The
decision(s) of the arbitrator(s) shall be final, conclusive and binding upon the Parties. All other
disputes shall be resolved by litigation in any court or governmental agency, as applicable, having
jurisdiction over the Parties and the dispute.
(c) In connection with any arbitration under this Section 10, costs of the arbitrator(s), hearing rooms
and other common costs shall be divided equally among the Parties. Each Party shall bear the
cost and expense of preparing and presenting its own case(including, but not limited to, its own
attorneys'fees); provided, that, in any arbitration, the arbitrator(s) may require, as part of his or
her decision, reimbursement of all or a portion of the prevailing Party's costs and expenses
(including, but not limited to, reasonable attorneys'fees) by the other Party.
(d) Unless otherwise agreed by the Parties in writing,the Parties shall continue to perform their
respective obligations under this Agreement during the pendency of any dispute.
Construction Agreement: Schedule 74 e
City of Kent:228' Street Ph.1 Conversion
PSE#10487904
11. Uncontrollable Forces.
In the event that either Party is prevented or delayed in the performance of any of its obligations under
this Agreement by reason beyond its reasonable control (a"Force Majeure Event"), then that Party's
performance shall be excused during the Force Majeure Event. Force Majeure Events shall include,
without limitation, war; civil disturbance;flood, earthquake or other Act of God; storm, earthquake or
ether condition which necessitates the mobilization of the personnel of a Party or its contractors to
restore utility service to customers; laws, regulations, rules or orders of any governmental agency;
sabotage; strikes or similar labor disputes involving personnel of a Party, its contractors or a third
party; or any failure or delay in the performance by the other Party, or a third party who is not an
employee, agent or contractor of the Party claiming a Force Majeure Event, in connection with the
Work or this Agreement. Upon removal or termination of the Force Majeure Event,the Party claiming
a Force Majeure Event shall promptly perform the affected obligations in an orderly and expedited
manner under this Agreement or procure a substitute for such obligation. The Parties shall use all
commercially reasonable efforts to eliminate or minimize any delay caused by a Force Majeure Event.
12. Insurance.
(a) PSE shall, and shall require each of its contractors to,secure and maintain in force throughout the
duration of the Conversion Project(or, if sooner, until termination of this Agreement)
comprehensive general liability insurance, with a minimum coverage of$2,000,000 per
occurrence and$2.000.000 aggregate for personal injury; and $2.000.000 per occurrence/
aggregate for property damages, and professional liability insurance in the amount of$2.000,000.
(b) The Government Entity shall ensure that each of its contractors performing any Government Work
secures and maintains in force throughout the duration of the Conversion Project (or, if sooner,
until termination of this Agreement) insurance policies having the same coverage, amounts and
limits as specified Section 12(a), above.
(c) In lieu of the insurance requirements set forth in Section 12(a), above,the Company may self-
insure against such risks in such amounts as are consistent with good utility practice. Upon the
Government Entity's request,the Company shall provide the Government Entity with reasonable
written evidence that the Company is maintaining such self-insurance.
13. Other.
(a) Agreement Subject To Tariff. This Agreement is subject to the General Rules and Provisions set
forth in Tariff Schedule 80 of the Company's electrical Tariff G and to Schedule 74 of such Tariff
as approved by the Washington Utilities and Transportation Commission and in effect as of the
date of this Agreement.
(b) Termination. The Government Entity reserves the right to terminate the Conversion Project and
this Agreement upon written notice to the Company. In the event that the Government Entity
terminates the Conversion Project and this Agreement, the Government Entity shall reimburse the
Company for all costs reasonably incurred by the Company in connection with the Work
performed prior to the effective date of termination. In such event, the costs reimbursable to the
Company(i) shall not be reduced by any Shared Government Costs or other costs incurred by the
Government Entity, and (ii) shall be paid within thirty(30) days after the receipt of the Company's
invoice therefor. Sections 1, 5, 7, 8, 9, 10, 11 and 13 shall survive anytermination of the
Conversion Project and/or this Agreement.
i
(c) Facilities Greater Than 15,000 Volts. Nothing in this Agreement shall in any way affect the rights
or obligations of the Company under any previous agreements pertaining to the existing or future
facilities of greater than 15,000 Volts within the Conversion Area.
Construction Agreement: Schedule 74 a
City of Kent: 228th Street Ph.1 Conversion
PS #10487904
(d) Compliance With Law. The Parties shall, in performing the Work under this Agreement, comply
with all applicable federal, state,and local laws, ordinances, and regulations.
(e) No Discrimination. The Company,with regard to the Work performed by the Company under this
Agreement, shall comply with all applicable laws relating to discrimination on the basis race, color,
national origin, religion, creed, age, sex, or the presence of any physical or sensory handicap in
the selection and retention of employees or procurement of materials or supplies.
(f) Independent Contractor. The Company and the Government Entity agree that the Company is an
independent contractor with respect to the Work and this Agreement. The Company is acting to
preserve and protect its facilities and is not acting for the Government Entity in performing the
Work. Nothing in this Agreement shall be considered to create the relationship of employer and
employee between the Parties. Neither the Company nor any employee of the Company shall be
entitled to any benefits accorded employees of the Government Entity by virtue of the Work or this
Agreement. The Government Entity shall not be responsible for withholding or otherwise
deducting federal income tax or social security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to the Company, or any
employee of the Company.
(g) Nonwaiver of Rights or Remedies. No failure or delay of either Party to insist upon or enforce
strict performance by the other Party of any provision of this Agreement or to exercise any other
right under this Agreement, and no course of dealing or performance with respect thereto, shall,
except to the extent provided in this Agreement, be construed as a waiver or, or choice of, or
relinquishment of any right under any provision of this Agreement or any right at law or equity not
otherwise provided for herein. The express waiver by either Party of any right or remedy under
this Agreement or at law or equity in a particular instance or circumstance shall not constitute a
waiver thereof in any other instance or circumstance.
(h) No Third Party Beneficiaries. There are no third-party beneficiaries of this Agreement. Nothing
contained in this Agreement is intended to confer any right or interest on anyone other than the
Parties, their respective successors, assigns and legal representatives.
(i) Governmental Authority. This Agreement is subject to the rules, regulations, orders and other
requirements, now or hereafter in effect, of all governmental regulatory authorities and courts
having jurisdiction over this Agreement, the Parties or either of them. All laws, ordinances, rules,
regulations, orders and other requirements, now or hereafter in effect, of governmental regulatory
authorities and courts that are required to be incorporated into agreements of this character are by
this reference incorporated in this Agreement.
Q) No Partnership. This Agreement shall not be interpreted or construed to create an association,
joint venture or partnership between the Parties or to impose any partnership obligations or liability
upon either Party. Further, neither Party shall have any right, power or authority to enter into any
agreement or undertaking for or on behalf of,to act as or be an agent or representative of, or to
otherwise bind the other Party.
(k) Severability. In the event that any provision of this Agreement or the application of any such
provision shall be held invalid as to either Party or any circumstance by any court having
jurisdiction, such provision shall remain in force and effect to the maximum extent provided by
law, and all other provisions of this Agreement and their application shall not be affected thereby
but shall remain in force and effect unless a court or arbitrator holds they are not severable from
the invalid provisions.
Construction Agreement: Schedule 74 10
City of Kent:2281h Street Ph.1 Conversion
PSE#10487904
(1) Notice. Any notice under this Agreement shall be in writing and shall be faxed (with a copy
followed by mail or hand delivery), delivered in person, or mailed, properly addressed and
stamped with the required postage, to the intended recipient as follows:
If to the Government Entitv: City of Kent
Attn:
Fax:
If to the Company: Puget Sound Energy, Inc.
6905 South 228'h Street, SKC-SVC
Kent, WA 98032
Attn: Mary Ausburn, AICP
Fax: (253) 395-6882
Any Party may change its address specified in this Section 13(I) by giving the other Party notice of
such change in accordance with this Section 13(I).
(m) Applicable Law. This Agreement shall in all respects be interpreted, construed and enforced in
accordance with the laws of the State of Washington (without reference to rules governing conflict
of laws),except to the extent such laws may be preempted by the laws of the United States of
America.
(n) Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to
the subject matter hereof and all other agreements and understandings of the Parties, whether
written or oral, with respect to the subject matter of this Agreement are hereby superseded in their
entireties; provided, however,that except as expressly set forth in this Agreement, nothing herein
is intended to or shall alter, amend or supersede the Design Agreement and the same shall
remain in full force and effect in accordance with its terms.
(o) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the
respective successors, assigns, purchasers, and transferees of the Parties, including but not
limited to, any entity to which the rights or obligations of a Party are assigned, delegated, or
transferred in any corporate reorganization, change of organization, or purchase or transfer of
assets by or to another corporation, partnership,association, or other business organization or
division thereof.
Government Entity: Company:
CITY OF KENT PUGET SOUND ENERGY, INC.
BY BY
ITS ITS
Date Signed Date Signed
Approved as to form:
i
Construction Agreement:Schedule 74
City of Kent:228"Street Ph.1 Conversion
PSE 410487904
Exhibit A "Project Plan"
Schedule 74 Underground Conversion
PUGET SOUND ENERGY
City of Kent 228t11 Street Corridor Conversion
PSE Notification Number 10487904
PSE Superior Order Job Number: 101019557
Introduction
This Project Plan describes work to be performed by Puget Sound Energy(PSE)and the City of
Kent (the City)for the conversion of certain PSE electrical distribution system facilities as
described herein(the Conversion Project). In addition to this document,the Project Plan
includes and consists of the following:
• Attachment A - Applicable drawings,requirements and specifications for the Conversion
Project work.
• Attachment B - Summary of Estimated Conversion Project Costs.
Revisions to this Project Plan must be mutually approved by the City and PSE.
Scope of Work
Pursuant to PSE's Rate Schedule 74, PSE will convert its existing overhead electrical
distribution system of 15 kV or less to an Underground Distribution System within the following
project area(the Conversion Area): Along a portion of 228a' St. from Station 54+00 (PV04) to
Station 60+00 (J03) and Russell Rd from Station 0+00 to Station 8+00, and the Frager Rd
Station 7+30 (P-11)to Station 11+50 (P09). The total footage is approximately 1840 feet. The
project includes removal of PSE's existing overhead distribution facilities from the areas
described above.
PSE will, at it's expense install a 6" conduit system from Station 55+00 (PV04)to Station 60+00
(P01) along 228 h St in preparation to extend it when the bridge is constructed. The 6"conduit is
considered a system upgrade.
Additionally, the relocation of the overhead river crossing to a permanent overhead location
approximately one span north of it's existing location will be completed at PSE's expense per the
Franchise Agreement. A Department of Natural Resources permit is required for the river
crossing. If,this relocation is temporary due to requirement by any permitting jurisdiction that
the overhead power crossing be removed and installed in the bridge(converted to underground),
City of Kent 1
228 th St Corridor Conversion
#101019557
then PSE will be reimbursed by the city for the full cost of the installation and removal of
temporary facilities. In this event, extension of the three phase 1/0 primary cables from J03 along
228`h, across the bridge and down to Frager Road on the west side of the river will be considered
part of this conversion as a Shared Government Cost and will be constructed in coordination
with the bridge construction.
The existing overhead distribution facilities to be converted are located within the City's public
thoroughfare and are a Shared Cost, There are no City of Kent requested upgrades included in
the conversion project.
Responsibilities of Parties
CC
a) The City will provide all surveying for equipment placement locations and establish all grade
elevations for the Underground Distribution System within the Conversion Area. Because the
city is responsible for final grade elevations and excavation for the vaults, any subsequent
adjustment of vault lids to match final grade surfaces other than adjustment incorporated in
the vault design, will be done at the city's expense.
b) The City will incorporate PSE's design for the Underground Distribution System into a bid
package.The City will prepare drawings and specifications for the bid package for the
trenching and vault excavation. The City will advertise for bids, evaluate bids, award a
contract and monitor the selected Contractor's activities.
c) The City will provide all necessary excavation,bedding,backfill, off-site disposal, and site
restoration for the Conversion Project, along with the coordination of other utilities
participating in the Conversion Project.
d) The City will provide all necessary flagging and traffic control for the trenching, excavation,
and duct and vault installation phase of this project.
e) The City will provide PSE ten(10)working days notice prior to the start of duct and vault
installation to allow for delivery of PSE's materials to the job site and scheduling of the
installation crew.
f) The City will provide a secure staging area for PSE's ducts and vault materials storage.
g) A schedule for vault deliveries will be provided to PSE to coincide with the City contractor's
schedule. Five days notice is required by the vault vendor.
h) The City will coordinate removal of other utilities from PSE's poles within the Conversion
Area and any joint use by other utilities of trenches for the Conversion Project.
i) The City will attend weekly construction meetings with PSE and City's contractor.
City of Kent 2
228 th St Corridor Conversion
#101019557
Puget Sound Enerey
a) PSE will design the Underground Distribution System including duct and vault location, size,
quantity,materials, customer service locations as well as all other design work required to
provide-a complete system.
b) PSE will provide all of the duct and vault materials necessary for the Conversion Project.
Duct and vault materials will be delivered to the job site in accordance with the City
Contractor's schedule, following ten(10) working days notice provided by the City of the
start of duct and vault installation.
c) PSE will install and proof all ducts and vaults for the Underground Distribution System.
d) PSE will complete and energize the Underground Distribution System within 20 working
days following the installation and of the duct and vault system.A working day is defined as
Monday through Friday between the hours of 7:00 a.m. and 6:00 p.m., excluding holidays.
e) PSE will notify the City in writing when the Underground Distribution System is energized.
f) Pursuant to PSE's pole attachment agreements with other utilities, PSE will provide timely
notice to other utilities attached to PSE's poles within the Conversion Area that such poles
will be removed and that such other utilities must relocate their facilities.
g) PSE will complete removal of its overhead electric distribution system including, service
wire, conductors, down guys, anchors,poles and service lines within 30 working days from
the date that the underground distribution is energized and all other utilities have been
removed from PSE's poles.
h) PSE is responsible for all flagging and traffic control during the installation of the
Underground Distribution System(except for installation of ducts and vaults), connection of
customer service lines and removal of the existing overhead distribution system facilities.
i) PSE will fill and holes left from pole removal with crushed rock,
j) PSE will attend weekly construction meetings with the City and City's contractor.
I
Additional Right-of-Way
The existing overhead distribution system facilities within the Conversion Area are located
within the Public Thoroughfare. The new Underground Distribution System will be located
within the Public Thoroughfare, or other equivalent rights (Title to which shall be in the City's
name)pursuant to Schedule 74, Section 3. All new facilities will be located within existing
Public Thoroughfare and no additional Right-of-Way is necessary for this project.
Schedule
The City and PSE will perform the work described in this Project Plan in accordance with the
agreed upon Project Schedule. The current schedule is that excavation for installation of the
vault and duct system will start in early March and will be completed by mid-March. Line work
will start when the installation of the vault and duct system is complete.
City of Kent 3
228 th St Corridor Conversion
#101019557
Cost Allocation
Cost allocation for this project will be governed by PSE's Rate Schedule 74. Refer to Section 7
"Compensation and Payment"of the Construction Agreement for additional information.
Cost Assumptions
The project design, construction plans and cost estimates are based on the following
assumptions. Construction conditions that are not consistent with these assumptions may result
in a request for change or an equitable adjustment to project compensation under Section 6 of the
Construction Agreement.
1. Following acceptance of this Project Plan and execution of a Construction Agreement, the
City will begin construction of the underground trenching and vault excavation in March,
2004.
2. The enclosed cost estimate is based on the specific scope of work to be performed by the
City and PSE.
I
3. Once PSE's vault and duct crews are mobilized, the utility trench will be provided by the city
in one continuous-nonstop effort, end to end,until completed. The Daily Productivity Rate
is based on the City's contractor opening a minimum of 250 lineal feet of trench per day.
4. After completion of the utility trenching work, starting approximately mid-March 2004, PSE
will be provided continuous access to the construction site and associated electrical work
during the core business hours from 7:00 am. to 6:00 pm. Monday through Friday, excluding
holidays. Should lane closures become necessary PSE is limited to working between the
hours of 8:30am.to 3:30pm. Work performed outside of core business hours may be subject
to overtime rates at PSE's discretion.
5. PSE's design is based on roadway design drawings provided by the City dated October 24,
2003 and PSE preliminary plans approved by the city on January 12, 2004.
6. The City is solely responsible for the cost of traffic control for trenching and excavation.
The cost of traffic control for installation of the ducts and vaults is a Shared Government
Cost.
7. A City Street-Use permit is the only City permit necessary for PSE to perform its work for
this Conversion Project and will be issued within two (2)weeks of submitting a complete
permit application(including any supporting documentation reasonably required by the
City). The cost estimate assumes there will be no charge for the permit.
8. Locations for PSE's facilities as shown on the plans are available for use.
9. Work requiring a scheduled disruption of electric service to non-residential customers will be
done during work hours specified in assumption 4 above and will be scheduled with a
minimum of two (2) business days notice. PSE will notify customers of scheduled service
interruptions.
10. With the possible exception of the overhead river crossing, work does not include installation
and/or removal of"temporary" facilities at the request of others during construction.
City of Kent 4
229 th St Corridor Conversion
#101019557
Additional Considerations
Service Conversions
There are no existing secondary services within the conversion area.
New Service
It is anticipated that the city will request a permanent service for street lights and two services to
be used for construction of the bridge. It is anticipated that these services will be installed
sometime in 2004 and will be used through 2006. These services are not included in this design.
They may be installed during the installation of this conversion or at a later date.When designed
and installed, they will be subject to Schedule 85 line extension charges. These costs will be
quoted separately.
PSE Facilities Desisn Standards
PSE Design Standards applicable to this Conversion Project are included in the "Electric
Distribution Trench/Duct/Vault Construction Standards 2003 previously e-mailed and included
with this nackaee.
v
Acceptance of Protect Plan
The City and PSE mutually agree to and accept this Project Plan as of the date indicated below:
For the City: For PSE:
By. By.
Its: Its:
Date: Date:
City of Kent 5
228 th St Corridor Conversion
#101019557
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PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
® Phone:253-856-5500
G lY T Fax: 253-856-6500
WASHINGTON Address: 220 Fourth Avenue S.
Kent,WA. 98032-5895
DATE: March 1, 2004
TO: Public Works Committee
FROM: D ` i'okstrom, Public Works Director
THROUGH: V-
SUBJECT: Right of Way Dedication on South 228`h St./Russell Road
MOTION: Recommend authorization for the Mayor to execute Quit Claim Deed subject to the
City Attorney and the Public Works Director's concurrence of the language therein.
SUMMARY:
The attached map reflects property currently owned by the City. Said map also denotes that
portion thereof which we are recommending to be dedicated as public right-of-way for the
construction of south 228`h Street and the relocation of Russell Road on the east side of the Green
River.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact
BACKGROUND
The relocation of private and/or quasi private utilities (power, gas, telephone, cable TV)have
become a major problem with respect to controlling costs and time per implementing any City
Capital improvement project. Were the entire City parcel denoted as public right-of-way then
these private/quasi private utilities would by virtue of state law or a City granted franchise be
able to locate/relocate their facilities just about anywhere they wanted to within the property. By
separating out the public right-of-way they are then restricted to said right-of-way. Because
much work associated with the 228`h Street corridor around this immediate area is yet to be
determined, defining the right-of-way limits will hopefully minimize future conflicts with those
utilities that are presently being relocated. The bottom line is that hopefully this action will save
the City time and money in the future.
Mayor White and Kent City Council 1 ROW S 228`"/Russell Rd—Quit Claim Deed
March 1,2004
AFTER RECORDING MAIL TO:
Property Management
City of Kent
220 4th Avenue South
Kent,WA 98032 -
Reference NTumber of Related Document: N/A
Grantor(s): City of Kent
Grantee(s): City of Kent
Abbreviated Legal Description: Ptn.NW/4 14-22.4 and Pin.NE 1/415-22-4
Additional Legal Description is on Page(s) 2 and 3 of Document
Assessor's Property Tax Parcel or Account No.:000620-0004; 000620-0016;and 000620-0023
Project: S.228a'Street Extension and Russell Road Realignment(87-3007R)
MUNICIPAL
QUIT CLAIM DEED
(Corporate)
THE GRANTOR,the CITY OF KENT,a municipal corporation,for and in consideration of a
dedication to the public for rieht-of-way and utility purposes._conveys and quit claims to City of '
Kent,a mmmicipal corporation, the following described teal estate,situated in the County of KING,
State of Washington,including any after acquired title:
Refer to Exhibit"A"attached hereto and by this reference incorporated herein.
(Refer to Exhibit`B"for sketch of property attached hereto and by this reference incorporated herein)
WITNESS WHEREOF,said municipality has caused this instrument to be executed by its proper ',..
officers and its official seal to be hereunto affixed this_day of 20_
Dated this day of ,20
Grantor—City of Kent
Jim White,Mayor
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
On this_day of ,20,before me,the undersigned a Notary Public in
and for the Stale of Washington,duly commissioned and sworn personally appeared to me Jim White,
knowri to be the Mayor of The City of Kent,Washington,the corporation that executed the foregoing
instrument, and acknowledged the said instrument to be,the free and voluntary act and deed of said
corporation,and for the uses and purposes therein mentioned,and on oath stated thathe was authorized to
execute the said instrument and that the seal affixed is the corporate seal for said municipality.
WITNESS my hand and official seal hereto affixed the day and year fast above Written.
Print name:
Notary Public in and for the State of Washington,
Residing at:
My commission expires
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EXHIBIT "A'
So. 228th Street Realignment Right of Way Description
That portion of the northwest quarter of Section 14, Township 22 North, Range 4
East, W.M. and the northeast quarter of Section 15, Township 22 North, Range 4
East, W.M., the City of Kent, King County, Washington, described as follows:
Commencing at the southwest corner of said Section 14, from which point the
south quarter corner of said section bears S89005'45"E; thence N00039'20"E,
along the west line of said Section 14, a distance of 2951.02 feet to the TRUE
POINT OF BEGINNING of the herein described tract; thence S56°26'40"E 19.60
feet to the northerly margin of So. 228th Street (a.k.a. Russell Road) , thence
easterly, along said northerly margin the following courses and distances: thence
S81004'41"E 167.67 feet; thence S78°10'56"E 111.28 feet; thence S12013'17'W
10.00 feet, said point being hereinafter referred to as point "A'; thence
S77046'43"E 70.74 feet to a point of tangency with a 670.00 foot radius, circular
curve to the left; thence easterly, along said curve, through a central angle of
10041'30", an arc distance of 125.03 feet to a point of tangency; thence
S88028'13"E 25.18 feet to the southerly prolongation of the west line of Lot 1,
City of Kent Short Plat 89-19, as recorded under King County Recording No.
9002271332; thence N01 005'31"E, along said prolongation and the west line of
said Lot 1, a distance of 10.22 feet to the north line of a tract of land conveyed to
the City of Kent by deed recorded under King County Recording No.
8907201051; thence northwesterly, along said north line, the following courses
and distances; thence N76°19'46"VV 311.52 feet; thence N53024'12"W 213.00
feet; thence N36'43'42"W 152.91 feet; thence leaving said north line,
N47006'22"W 114.83 feet to a point of tangency with a 1030.00 foot radius,
circular curve to the left; thence northwesterly, along said curve, through a
central angle of 13o 54'12", an arc distance of 249.94 feet to a point of reverse
curvature and the beginning of a 770.00 foot radius, circular curve to the right;
thence northwesterly, along said curve, through a central angle of 29052'54", an
arc distance of 401.58 feet to the northeasterly margin of aforesaid So. 228th
Street (a.k.a. Russell Road), said point being on a 595.00 foot radius circular
curve to the right, from which point the center of said curve bears S58052'20"W;
thence southeasterly, along said curve and said northeasterly margin, through a
central angle of 11 035'43", an arc distance of 120.41 feet to a point of tangency;
thence continuing along said northeasterly margin, S19031'57"E 97.29 feet to a
point on an 830.00 foot radius, circular curve to the left, from which point the
center of said curve bears N43°52'00"E; thence leaving said margin,
southeasterly, along said curve, through a central angle of 14°52'34", an arc
distance of 215.50 feet to a point of reverse curvature and the beginning of a
970.00 foot radius, circular curve to the right; thence southeasterly, along said
curve, through a central angle of 13054'12", an arc distance of 235.38 feet to a
point of tangency; thence S47006'22"E 32.49 feet; thence S35052'31"W 35.29
feet to a point on a 2019.00 foot radius, circular curve to the left, from which point
Page 2 of 4
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the center of said curve bears S 28°54'33'VV; thence northwesterly, along said
curve, through a central angle of 8'11'34", an arc distance of 288.70 feet to the
northeasterly margin of aforesaid So. 228th Street; thence S28°44'04"E, along
said margin, 68.74 feet to a point hereinafter referred to as point "B"; thence
continuing along said margin, S28°44'04"E 71.13 feet to a point on a 1931.00
foot radius, circular curve to the right, from which point the center of said curve
bears S23°52'18"VV; thence southeasterly, along said curve, through a central
angle of 9041'02", an arc distance of 326.37 feet to a point of tangency; thence
S56026'40"E 106.13 feet to the TRUE POINT OF BEGINNING.
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Together with that portion of said Section 14 described as follows:
Commencing at aforesaid point "A"; thence S12°13'17"1N 60.00 feet to an angle
point in the southerly margin of said So. 228th Street and the TRUE POINT OF
BEGINNING, said point being on a 670.00 foot radius, circular curve to the left,
from which point the center of said curve bears S12°13'17"W; thence westerly,
along said margin and said curve, through a central angle of 6°04'23", an arc
distance of 71.02 feet to a point on a 794.00 foot radius, circular curve to the left,
from which point the center of said curve bears N21°49'00"E; thence easterly,
along said curve, through a central angle of 5'09'19", an arc distance of 71.44
feet to a point which bears S12013'17"W from the TRUE POINT OF BEGINNING;
thence N12013'17"E 12.49 feet to the TRUE POINT OF BEGINNING.
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And together with a strip of land 88.00 feet in width, having 44.00 feet on each
side of the following described centerline:
Commencing at aforesaid point "B", said point being on a 1975.00 foot radius
circular curve to the left, from which point the center of said curve bears
S22013'55"W; thence northwesterly, along said curve, through a central angle of
3048'39" an arc distance of 131.36 feet to the southwest margin of Russell Road
and the TRUE POINT OF BEGINNING of the herein described centerline; thence
continuing northwesterly, along said curve, an arc distance of 152 feet, more or
less, to the ordinary high water mark of the Green River and the terminus of the
herein described centerline.
The side lines of said strip shall be extended or shortened, as required to
terminate at the southwest margin of Russell Road algid the ordinate high water
mark of the Green River.
Containing 126,802 square feet or 2.911 acres 1 j
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PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
Phone:263-856.5500
�( ® Fax: 253-856-6500
■� T Address: 220 Fourth Avenue S.
WASHINOTON '..
Kent,WA. 98032-5895
DATE: March 1,2004
TO: Public;Works Committee
FROM: Don W'ckstrom, Public Works Director
THROUGH:
SUBJECT: Washington Conservation Corps Sponsor Agreement
MOTION: Recommend authorizing the Mayor to sign the Washington Conservation Corps
Sponsor Agreement, in the amount of $69,616, directing the staff to accept the grant and j
establishing a budget for the funds to be spent within said project.
SUMMARY: This agreement will provide a three member crew and a supervisor to participate
in the construction of various capital improvement projects in the Environmental Engineering
Section at substantial cost savings to the City of Kent. The agreement covers a time period of
February 1 through September 30, 2004.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel Impact—Funds for the projects
have been established as part of the Stormwater Capital Improvement Program.
BACKGROUND: The Washington State Department of Ecology administers a youth job
skills program. The youth between the ages of 18-25 will be employed in various capital
improvement projects in the Environmental Engineering Program. The City of Kent has been
participating in this worthwhile program since 2002. Work crews along with a supervisor are
provided at low costs to perform various projects to conserve and enhance the State of
Washington's natural resources.
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Mayor White and Dent City Council WA Conservation Corps Sponsor Agreement-Authorize
March 1.,2004 1 '.........
WCC AGREEMENT NO. WCC04-16-001
Wim
IIH1R614Y I T A T WASHINGTON CONSERVATION CORPS
L C 0 L 0 c r SPONSOR CONTRACT
THIS CONTRACT made by and between the State of Washington Department of Ecology Conservation Corps,
hereinafter referred to as the "DEPARTMENT," and that entity whose name appears in item 1, below,
hereinafter referred to as the "SPONSOR."
1. SPONSOR Citv of Kent 2. CONTACTS '..
3. ADDRESS: Enoineerina Dept. DEPT. PROJECT LEADER N1 h l 360 407-6077
220 4" Ave. S. SPONSOR CONTACT 253 437-2051
Kent. WA CREW SUPERVISOR 206 940-3614
98032-5895 OTHER
SPONSOR FISCAL OFFICER
4. PROJECT TITLE/DESCRIPTION : City of Kent 8 month contract
S. PROJECT LOCATION: City of Kent
6. SCOPE OF WORK: Various
7, PERIOD OF PERFORMANCE:
CONTRACT BEGINS: February 1, 2004 CONTRACT ENDS: September 30, 2004
8. MAXIMUM BUDGET REIMBURSED '..
to DEPARTMENT
by Sponsor '..
Provided by DEPARTMENT Cost Provided by SPONSOR/DONATIONS COST
"-C Crew(3 members and
$69,616 $69,616
1pervisor) Labor (Up to 8
months)
Transportation (.46/mile)
Per Diem Costs
Total DEPARTMENT Cost $69,616 Total SPONSOR COST $69,616
Above cost
Not to be
Exceeded
10. Special Terms and '..
Conditions
dB No ❑ Yes (See
XVII.)
11. Biennial Closures: In accordance with biennial closing procedures, the sponsor must REMARKS
reimburse the DEPARTMENT no later than lane M, 7005 for services or material supplied
under this contract when submitted for payment on properly itemized vouchers (Form A -19).
AFRS ACCOUNT CODE
TRANS APPN PROD PROJECT SUB PROJ ORG CO. OBI SUB AMOUNT
CODE FUND INDE INDE PROJ PHAS INDE OBI
x x x
INCONSIDERATION OF THE GENERAL TERMS AND CONDITIONS OF THIS CONTRACT,THE PARTIES AGREE AS FOLLOWS:
L All rights and obligations of the parties to this contract shall be subject to and governed by those General Terms and Conditions contained in
the text of this contract instrument and Section XVII.'SPECIAL TERMS AND CONDITIONS."
In the event of an inconsistency in this contract,unless otherwise provided herein,the inconsistency shall be resolved by giving precedence in
the following order: (a) Applicable Federal & State Statutes & Regulations, (b) Special Terms and Conditions, and (c) General Terms and
Conditions.
111.This contract and its appendices, if any, contains all the terms and conditions agreed upon by the parties. No other understandings, oral or
otherwise, regarding the subject matter of this contract shall be deemed to exist or to bind any of the parties hereto.
W. This contract shall be subject to the written approval of the authorized representative of the DEPARTMENT and shall not be binding until so
approved. Only the authorized representative by writing (delegation to be made prior to action)shall have the expressed,implied,or apparent
authority to alter, amend, modify, or waive any clause or condition of this contract. Furthermore, any alteration, amendment, modification, or
waiver of any clause or condition of this contract is not effective or binding unless made in writing and signed by the authorized
representative.
V. AUTHORITY AND PURPOSE:
A. Authority '...
The Legislature enacted Chapter 43.220 RCW which created the Washington Conservation Corps, hereinafter referred to as the"WCC;'
and named the DEPARTMENT as one of six state agencies having implementation authority.
B. Purpose
The purpose of this contract is to establish a formal understanding between the DEPARTMENT and the SPONSOR to accomplish the
project described in Section 7. "SCOPE OF WORK."
This contract is designed to specify the kinds and amounts of goods and services to be used and/or exchanged by the DEPARTMENT
and the SPONSOR to their mutual benefit through a WCC project.
The SPONSOR acknowledges that participation in the WCC program shall not result in the displacement of currently employed workers,
including partial displacement such as reduction in hours of nonovertime work, wages, or other employment benefits, nor in the
impairment of existing contracts for services.
DEFINITIONS:
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A. "SPONSOR Contact" shall mean the person who serves as the SPONSOR's lead on the project and shall cooperate with all parties
concerned to promote successful completion of the project described in Section 7.'SCOPE OF WORK.'
B. "SPONSOR Work Director'shall mean the person who specifies work to be performed onsite; outlines, describes, and delegates work to
be accomplished; supplies necessary orientation and training for use of special equipment and procedures; and is responsible for
directing WCC crew supervisor(s)regarding specific project tasks as described in Section 7."SCOPE OF WORK."
C. "DEPARTMENT Project Leader shall mean the person who is responsible for developing and facilitating the project and shall serve as
liaison between the DEPARTMENT and SPONSOR. PROJECT LEADER assumes ultimate responsibility to ensure adequate
coordination of the project.
D. "Caps Member"shall mean an individual enrolled in the WCC program.Corps members shall not be considered regular state employees.
Provisions of law relating to civil service, hours of work, rate of compensation, sick leave, unemployment compensation, state retirement
plans. and vacation leave do not apply to the Corps members.However, medical aid and state industrial insurance will be provided by the
DEPARTMENT for each Corps member.
E. "Crew Supervisor" shall mean the person who is responsible for matters relating to personnel administration and overall project direction.
He/she supervises Corps members (generally four or more) regarding work to be accomplished and is responsible for individual crew
safety, daily crew supervision and discipline, completes Corps member training plans, and provides a written evaluation of each Corps
member's job performance and skills acquired after two months and at termination of employment.
VII. SCOPE OF WORK:
Both parties agree to compete in a satisfactory and proper manner the services described under the Section 7. "SCOPE OF WORK" of
this contract, and to provide materials and supplies necessary to ensure satisfactory completion of the project, including any special
equipment required by special work conditions,and to procure any necessary permits such as right of entry.The DEPARTMENT agrees
to provide Corps members who will be used to complete said work. All equipment provided by either the DEPARTMENT or the
SPONSOR shall be returned to the provider within fifteen(15)days after termination of this contract, unless otherwise specified in Section
XVIL"SPECIAL TERMS AND CONDITIONS."
Vlll, PERFORMANCE:,
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A. Time for Performance:Any work performed prior to the effective date of this SPONSOR CONTRACT, or continuing after the completion
date of same, unless otherwise agreed upon in writing herein,will be in violation of this contract and will be at the SPONSOR's expense.
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B. Compliance With All Laws: The SPONSOR agrees to observe all federal and state laws, regulations, and policies affecting performance
under this contract.
C. Release of Information or Materials: The SPONSOR will not release any information or materials developed pursuant to this contract
without prior written authority from the DEPARTMENT. '.....
D. Final Report Evaluation:Within 15 days after termination of this contract,the SPONSOR shall provide the DEPARTMENT with a written
evaluation of the project.At a minimum,the following shall be evaluated:
1. Benefit to Corps members 4. Whether the overall goals and objectives of the project were obtained
2. Environmental benefits 5. Suggestions for program improvement !...
3. Department cooperation/coordination 6. Revised estimates of alternate supplier cost and SPONSOR
cost/donation
IX. TERMINATION OF CONTRACT:
A. Termination by SPONSOR for Cause: If the DEPARTMENT fails to fulfil in a timely and proper manner its obligations under this contract,
or if DEPARTMENT shall violate any of the covenants,agreements,assurances,or stipulations of the contract.SPONSOR shall have the
right to terminate this contract by giving written notice specifying the effective termination date to the DEPARTMENT at least seven (7)
days before such date.
B. Termination by DEPARTMENT for Cause: If SPONSOR fails to fulfill in a timely and proper manner its obligations under this contract,or if
SPONSOR shall violate any of the covenants, agreements, assurances, or stipulations of the contract, DEPARTMENT shall have the
right to terminate this contract by giving written notice specifying the effective termination date to the SPONSOR at least seven (7) days
before such date.
C. Termination by DEPARTMENT for Convenience:The DEPARTMENT may terminate this contract by giving written notice to SPONSOR of
such termination and specifying the effective date thereof at least ten (10) days before the effective date of such termination. In that
event, all finished or unfinished documents and other materials as described above shall be delivered to DEPARTMENT for its review.
After the review at the option of DEPARTMENT such documents or material or portions thereof shall become its property.
D. Insufficient Funding: In the event funding from state,federal, or other sources is withdrawn, reduced, or limited in any way after the after
the effective date of this contract and prior to normal completion, the DEPARTMENT may terminate the contract under Section IX.C.
"Termination by DEPARTMENT for Convenience"clause,subject to renegotiation under those new funding limitations and conditions.
X. LIABILITY: !
A. When direct supervision is provided by the DEPARTMENT employed crew supervisor, the DEPARTMENT agrees that WCC members
working under this contract are agents of the DEPARTMENT, and therefore the DEPARTMENT shall be liable for personal injury or
property damage caused by WCC Corps member negligence.
B. When direct supervision is provided by the SPONSOR, the SPONSOR agrees that WCC Corps members working under this contract are
agents of the SPONSOR, and therefore the SPONSOR shall be liable for personal injury or property damage caused by WCC Corps
member negligence.
C. To the extent that the Constitution and laws of the State of Washington permit, all parties to this contract shall be responsible for damage
to persons or property resulting from the negligence on the part of itself, its employees, its agents, or its officers. None of the parties
assume any responsibility to the other parties for the consequences of any act or omission of any person, firm,or corporation not a party
to this contract.
XI. NON-DISCRIMINATION:
The DEPARTMENT and the SPONSOR agree to be bound by all federal and state laws, regulations, and policies against discrimination and
agree not to discriminate in employment, either directly or indirectly,because of a person's age,sex,sexual orientation,marital status,creed,
color, national origin, or the presence of any sensory, mental, or physical handicap, unless based upon a bona fide occupational qualification.
XII. DISPUTES:
Except as otherwise provided in this contract,when a bona fide dispute arises between the DEPARTMENT and the SPONSOR and it cannot
be resolved, either party may request a dispute resolution with the DEPARTMENT The parties agree that this dispute resolution process shall
precede any action in a judicial tribunal. Either party's request for a dispute resolution must:
A. be in writing;
B. state the disputed issues;
C. state the relative positions of the parties;
D. state the SPONSOR's name, address, and WCC Agreement number;
E. be mailed to the DEPARTMENT within thirty(30)days after the party could reasonably be expected to have knowledge of the issue(s)
which are now in dispute.
XIII. INVOICE VOUCHERS:
Reimbursable expenditures under the terms and conditions of this contract shall in no event exceed the amount set forth herein.The
SPONSOR shall reimburse the DEPARTMENT for services performed when submitted on a properly itemized voucher(Form A-19)in
accordance with Section 9."MAXIMUM BUDGET' Reimbursement shall be made by the SPONSOR within thirty(30) days of receipt of
said voucher.
XIV.AMENDMENTS:
Changes in the scope of this contract which cause an increase or decrease in the cost of,or the time required for the performance of any
part of the scope of work under this contract, shall be accomplished by written amendment and executed by both parties prior to
implementation.
XV.SUBCONTRACTS:
The SPONSOR shall not enter into subcontracts for any of the work contemplated under this contract without obtaining prior written
approval of the DEPARTMENT'S PROJECT LEADER,
XVI. RECORDS RETENTION:
Both parties shall maintain books, records, documents and other evidence of accounting procedures and practices which sufficiently and
properly reflect all direct and indirect costs of any nature expended in the performance of the SPONSOR CONTRACT These records
shall be subject at all reasonable times to inspection, review,or audit by duly authorized personnel for six years after the contract end
date.
XVII.SPECIAL TERMS AND CONDITIONS:
Special terms and conditions of this contract contained in the box below are made a part of this contract(requires initials).
Department Sponsor
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XVII.ENTIRE CONTRACT:
This document contains the entire and integrated contract between the parties, and no statement, promise, inducement or agreement
made by the DEPARTMENT or its agents or employees that is not contained in this written contract shall be valid or binding.No
alteration, addition,or modification of any of the terms or conditions of this contract shall be effective if not in writing and signed by the
authorized representatives of the SPONSOR and the DEPARTMENT
SIGNATURES:
SPONSOR DEPARTMENT
BY: BY:
TITLE: TITLE: Field Operations Coordinator
DATE: DATE: 1116104
Pre-Approved as to form by the Assistant Attorney General
Ecology is an Equal Opportunity and Affirmative action employer.For special accommodation needs,contact the Washington Conservation Corps at(206)407-6947.
Ttie TDD number is(206)407-6D06. ',
PUBLIC WORKS DEPARTMENT
Don E. Wickstrom, P.E. Public Works Director
40ZPhone:253-856-5500
�/C ®r T Fax: 253-856-6500
KL®Y 1, Address: 220 Fourth Avenue S.
WASH I N G T o l{ Kent,WA. 98032-5895
DATE: Mah , 2004
TO: Public Works Committee
FROM: Don Wickstrom, Public Works Director
THROUGH:
SUBJECT: Interagency Agreement with King County Metro
MOTION: Recommend Council authorize the Mayor to sign the interagency agreement between
the City of Kent and King County upon concurrence of the language therein by the City Attorney
and Pubic Works Director, authorize staff to accept the money and establish a budget for the
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funds to be spent within said prgject.
SUMMARY: The attached interagency agreement is between King County and the City of Kent
for King County Metro to pay the City $300,000 to widen pioneer Ave. to 36 feet between
Central Ave. and Railroad Ave. to allow transit utilization. We are requesting Council
authorization for the Mayor to sign the interagency agreement between the City and King
County.
BUDGET IMPACT: No Unbudgeted Fiscal/Personnel impact
BACKGROUND
The work that the City of Kent took over from Sound Transit includes the widening of Pioneer
Ave. between Central Ave. and Railroad Ave. to 36 feet on the east portion and 24 feet on the
west portion. King County Metro would like the City to widen the road to 36 feet all the way
through to provide adequate width for their buses to easily access the commuter rail station on
Railroad Ave. They are providing $300,000 to purchase additional right-of-way and pay for the
additional improvements to do this work. Attached is the agreement necessary for this
transaction.
Mayor White and Kent City Council 1 Interagency Agreement with KC Metro
March 1,2004
Draft
Agreement between King County and the City of Kent
for the Construction of Pioneer Street Improvements to
Support Transit Operations at the Kent Transit Center
THIS AGREEMENT is made and entered into this day of 2004,by and between the
City of Kent, hereinafter called the"City," a municipal corporation of the State of Washington, and ling
County, acting through its Department of Transportation,hereinafter called the"County,"both of which
entities may be collectively referred to hereinafter as the "Parties".
WHEREAS,the City has undertaken from Sound Transit the responsibility to construct the street
improvements on Pioneer Street from Central Avenue and Railroad Avenue; and
WHEREAS, Sound Transit had prepared a design for improving Pioneer Street from Central Avenue to
Railroad Avenue that includes twenty-four feet of pavement on the western portion of Pioneer Street and
thirty six feet of pavement on the eastern portion of Pioneer Street; and
WHEREAS, in order to improve transit and traffic operations and enhance overall safety the City and the
County support widening Pioneer Street to thirty six feet(36') of pavement from Railroad Avenue to
Central Avenue; and
WHEREAS,the County has agreed to contribute funding to support construction of the additional right-
of-way improvements that directly benefit transit operations at the Kent Transit Center;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which
is acknowledged, the parties hereto agree as follows:
Section 1. City Responsibilities
1.1 The City will be responsible for the right-of-way acquisition, design, construction, and
acceptance of all improvements in order to provide thirty six feet(36') of pavement from curb to
curb on the western half block section of Pioneer Street from Railroad Avenue to Central Avenue.
1.2 The City will submit to the County plans for the improvements for review prior to construction.
The County will have the opportunity to review plans at 60%, 90%, and 100%. The City will
submit these plans in electronic form. By the 60%plan review,the City and County will agree on
a striping plan for Pioneer Street from Railroad Avenue to Central Avenue.
13 The City will be responsible for the administration of any contracts it enters into for the
performance of its responsibilities under this Agreement. The City will provide the County with
quarterly progress reports to identify work progress, schedule adherence, and other matters of
significance in the performance of this Agreement.Prior to the issuance of a change order or
acceptance of contractor's work,the City will notify the County and provide the County with the
opportunity to comment on and inspect. However,neither the County's comments on nor
inspection of City-led improvements under this Agreement will relieve the City of its
responsibility for said improvements.
Metro Transit Pioneer Street Improvements
Draft Agreement—Pending Metro Legal Review; City of Kent Review
2/20/04
Page 1 of 5
1.4 The City will administer the construction of the project and shall have final judgment, after
consultation with the County,with regards to decisions related to the work of the contractor.
Section 2. County Responsibilities
2.1 Upon notification by the City of completion of work identified in Section 1,the County will
inspect the improvements consistent with the County approved plans and specifications. If the
County finds that any work does not meet the terms of this Agreement, or any specifications or
terms established hereunder, the County will prepare a punch list of such items and submit it to
the City.Work that does not comply with the agreed upon specifications and terms, except as
modified by mutual agreement between the City and Cotwty, will be corrected by the City at no
cost to the County.Notice of acceptance will not constitute acceptance of any unauthorized or
defective work or material. The County retains all rights hereunder and at law to require the City
to remove,repair,replace, or dispose of any unauthorized or defective work or to recover
damages for any such work or material.
Section 3. Financing
3.1 The County will contribute directly to the City an amount not to exceed 5300,000 to support the
project.
3.2 The City will invoice the County upon completion of the work The County will make payment to
the City within thirty(30) days of receipt of an invoice for work determined to be performed in
accordance with the terms of the Agreement. The County's total payment to the City under this
Agreement will not exceed$300,000.
Section 4. Schedule
4.1 The City agrees to complete the work of this Agreement by August 31,2005.
Section 5. Ownership and Maintenance
5.1 Unless otherwise agreed to by the Parties,the City will own and maintain all improvements
included in the Project.
Section 6.Legal Relations
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6.1 It is understood that this Agreement is solely for the benefit of the parties hereto and gives no
right to any other party. No joint venture, agent-principal relationship or partnership is formed as
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 or agents of the other
party.
6.2 To the maximum extent permitted by law, each party shall defend,indemnify, and hold harmless
the other parry and all of its officials, employees,principals, and agents from all claims, demands,
suits, actions and liability of any kind,including injuries to persons or damages to property, that
arise out of, are connected with, or are due to any negligent acts or omissions of the indemnifying
Metro Transit Pioneer Street Improvements
Draft Agreement—Pending Metro Legal Review; City of Kent Review
2/20/04
Page 2 of 5
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party and/or its contractors, officials, employees, agents and representatives in performing work
under this Agreement;provided,however,that if(and only if)the provisions of RCW 4.24.115
apply and any such damages and injuries to persons or property are caused by or result from the
concurrent negligence of both parties to this Agreement, or their contractors, officials, employees,
agents and representatives, then in such instance each party's obligation hereunder applies only to
the extent of the negligence of such party or its contractors, officials, employees, agents or
representatives. Each party specifically assumes potential liability for actions brought by its own
employees against the other party and for that purpose only each party specifically waives, as to
the other party only, any immunity under the Worker's Compensation Act,RCW Title 51; and
the parties recognize that this waiver was the subject of mutual negotiation and specifically
entered into pursuant to the provision of RCW 4.24.115.
6.3 The City and the County shall comply and shall ensure that their contractors comply with all
federal, state and local laws,regulations, and ordinances applicable to work and services to be
performed under this Agreement.
6.4 In the event any party incurs attorney's fees, costs or other legal expenses to enforce provisions of
this section against another party, all such fees, costs, and expenses shall be recoverable by the
prevailing parry.
6.5 This Agreement shall be interpreted in accordance with the laws of the State of Washington in
effect on the date of execution of this Agreement. The Superior Court of King County,
Washington shall have exclusive jurisdiction and venue over any legal action arising under this
Agreement.
6.6 The provisions of this Section shall survive any expiration or termination of this Agreement.
Section 7. Records and Audit
7.1 During the progress of the design and construction of all improvements covered by this
Agreement and for a period not less than three (3)years from the date of completion of all
improvements,records and accounts pertaining to the work of this Agreement and accounting
therefore are to be kept available for inspection and audit by representatives of the parties.
Copies of the records shall be furnished upon request and shall be maintained in accordance with
a work order accounting procedure prescribed by the State Auditor's Office.
Section 8.Agreement Duration and Termination
8.1 This Agreement shall take effect upon execution by both parries and shall expire January 31,
2006,unless extended by mutual agreement of the Parties or unless terminated in accordance with
the provisions of this Section 8.
8.2 Either party may terminate this Agreement in the event that the other party materially breaches
this Agreement. Written notice of such termination must be given via certified mail by the party
terminating this Agreement to the other party not less than fourteen (14) days prior to the
effective date of termination.
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8.3 Either party may terminate for its convenience and without cause by providing written notice to
the other party not less than thirty(30) days prior to the effective date of termination.
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8.4 Failure by either parry to require full and timely performance of any provision of the Agreement
at any time shall not waive or reduce the right of either party to insist upon complete and timely
performance of such provisions or any other provision thereafter.
Section 9.Identification of Contacts at City and County
9.1 The City and the County each agree to appoint a Project Manager to represent the interests of
their respective agencies. The two Project Managers will work collaboratively to implement this
Agreement.
9.2 All official communication concerning this Agreement should be directed to the following Project
Managers:
Mark Madfai David Cantey
Project Manager Project Manager
City of Kent King County Dept of Transportation
220 4`h Avenue South. 201 S Jackson Street,MS KSC-TR-0411
Kent, WA 98032 Seattle,WA 98104
Any changes in agency contacts from those noted above must be confirmed in writing to the other
party.
Section 10.Entire Agreement
10.1 This document contains all terns, conditions and provisions agreed upon by the parties thereto,
and shall not be modified except by written amendment, Such amendments may be made to this
Agreement within the previously approved budget or other applicable authority for and on behalf
of the City by its Mayor or designee, and for and on behalf of the County by its General Manager
of the Transit Division or designee. The written provisions and terms of this Agreement, together
with any attached Exhibits, shall supersede all prior verbal statements of any officer or other
representative of either party, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. This document,
including all Exhibits, is the entire agreement between the parties. Should any language in any of
the Exhibits to the Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail.
Section 11. Assignment
11.1 Any assignment of this Agreement by either party without the written consent of the non-
assigning party shall be void.
Section 12.Modification
12.1 No waiver, alteration, or modification of any of the provisions for the Agreement shall be binding
unless in writing and signed by a duly authorized representative of the City and the County.
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Section 13. Severability
13.1 If any provision of this Agreement is held invalid by a court of competent jurisdiction,the
remainder of the Agreement shall not be affected thereby if such remainder would then continue
to serve the purposes and objectives originally contemplated by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written
above.
The City of Kent
By
Jim White,Mayor Date
Approved as to Form
By
Tom Brubaker, City Attorney Date
King County
By
Darwin Campbell Date
Acting General Manager
King County Metro Transit Division
Approved as to Form
By
Jessica Hardung Date
Deputy Prosecuting Attorney
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