HomeMy WebLinkAboutCity Council Committees - Public Works Committee - 01/09/2023Public Works Committee
• SPECIAL MEETING
KENT Monday, January 9, 2023
WASHINGTON 5: 0 0 PM
Chambers
To listen to this meeting,
call 1-888-475-4499 or 1-877-853-5257
and enter Meeting ID 893 5631 0414, Passcode: 841879
Chair Brenda Fincher
Councilmember Satwinder Kaur Councilmember Marli Larimer
**************************************************************
Item Description Action Speaker Time
1.
Call to Order
Chair
2.
Roll Call
Chair
3.
Agenda Approval
Chair
4.
Business
Chair
A. Approval of Minutes
Approval of December 5,
YES
Chair
01 MIN.
2022 Minutes
B. 2023 Railroad Quiet Zone -
YES
Toby Hallock
10 MIN.
BNSF Railway Agreements -
Authorize
C. Meeker Street Bridge
YES
Steve Lincoln
05 MIN.
Consultant Agreement with
TranTech Engineering, LLC -
Authorize
D. King County Waste
YES
Tony Donati
05 MIN.
Reduction & Recycling
(WRR) Grant Agreement -
Authorize
E. INFO ONLY: Water Resource
NO
Mike Mactutis
05 MIN.
Inventory Area (WRIA) 9
Notice of Intent to apply for
grant funding
5.
Adjournment
Chair
Public Works Committee CC PW Special Meeting January 9, 2023
The public may submit written public comments that relate to a committee agenda item by emailing:
cityclerk@kentwa.gov by 3:30 p.m. on the day of this committee meeting. After 3:30 p.m., written
public comments may only be submitted in person by presenting them to the committee secretary at
the public meeting. Written public comments that do not relate to a committee agenda item are not
permitted. Written public comments are not read into the record.
Unless otherwise noted, the Public Works Committee meets at 4 p.m. on the first and third Mondays of
each month in the Kent City Hall, Council Chambers, 220 Fourth Avenue South, Kent WA 98032.
For additional information, contact Nancy Yoshitake at 253-856-5508 or email
Nyoshitake@kentwa.gov, or Cheryl Viseth at 253-856-5504, or email Cviseth@kentwa.gov.
Any person requiring a disability accommodation should contact the City Clerk's Office at 253-856-
5725 in advance. For TDD relay service call Washington Telecommunications Relay Service at 7-1-1.
KENT
W .....
Date: December 5, 2022
Time: 4:00 p.m.
Place: Chambers
Members: Brenda Fincher, Committee Chair
Satwinder Kaur, Councilmember
Marli Larimer, Councilmember
Agenda:
1. Call to Order 4:00 p.m.
2. Roll Call
Pending Approval
Public Works Committee
CC PW Regular Meeting
Minutes
December 5, 2022
Attendee Name
Brenda Fincher
Title
Status Arrived
Present
Present
� Committee Chair
Councilmember
Satwinder Kaur
Marli Larimer
Councilmember
Present
3. Agenda Approval
There were no changes to today's meeting.
4. Business
A. Approval of Minutes
Approval of Minutes dated November 7, 2022
The minutes of the November 7, 2022 Public Works Committee meeting were
approved without changes.
MOTION: Move to approve the Minutes dated November 7, 2022
RESULT: APPROVED [UNANIMOUS]
MOVER: Marli Larimer, Councilmember
SECONDER: Satwinder Kaur, Councilmember
AYES: Fincher, Kaur, Larimer
B. Department of Commerce Grant Agreement for Quiet Zone
Improvements - Authorize
Design Engineer, Toby Hallock noted that this project includes work related
to railway -highway grade crossing improvements to support future railroad
Quiet Zones and grade crossing safety improvements at up to thirteen
railroad crossings in Kent, in addition to filling in security fencing gaps at
select locations along the Burlington Northern (BNSF) alignment between
South 212th Street and South 259th Street.
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Public Works Committee CC PW Regular Meeting
Minutes
December 5, 2022
Kent, Washington
Hallock noted that the State appropriation of $2,950,000 for fiscal year 2023
is provided to the City of Kent for improvements and other actions to
improve safety and reduce train noise, with the goal of increasing quality of
life and facilitating transit -oriented living in downtown Kent. All expenditures
must be incurred prior to June 30, 2023, to be eligible for these funds.
MOTION: I move to approve the grant agreement with the Washington
State Department of Commerce and accept funds from the Department of
Commerce in the amount of $2,950,000 and authorize the Mayor to sign all
necessary documents, subject to final agreement terms and conditions
acceptable to the City Attorney and Public Works Director.
RESULT: MOTION PASSES [UNANIMOUS]
MOVER: Satwinder Kaur, Councilmember
SECONDER: Marli Larimer, Councilmember
AYES: Fincher, Kaur, Larimer
C. INFO ONLY: Snow and Ice Preparation
Next: 12/13/2022 7:00 PM
Street Maintenance Supervisor, Brent Collins gave an informative
presentation on our annual snow and ice response preparedness.
D. INFO ONLY: Pollinator Gardens
Maintenance Worker 4, Jennifer Harrell gave an update on the pollinator
gardens pilot program. Harrell's presentation included a summary of
proposed locations for future sites to be planted in 2023.
E. INFO ONLY: Solid Waste Litter Crew Update
Maintenance Worker 4, Mike Houlihan gave a brief report on the Solid Waste
Litter Crew's accomplishments over the last year. The presentation included
various activities and groups involved in this program.
Houlihan was also congratulated for being chosen as the December Employee
of the Month.
5. Adjournment 5:00 p.m.
Che4lybV
Committee Secretary
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KENT
WASH NGTON
DATE: January 9, 2023
TO: Public Works Committee
PUBLIC WORKS COMMITTEE
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5500
SUBJECT: 2023 Railroad Quiet Zone - BNSF Railway Agreements -
Authorize
MOTION: I move to authorize the Mayor to sign all necessary agreements
with Burlington Northern Santa Fe Railway related to the construction and
maintenance of the 2023 Railroad Quiet Zone Project, subject to final
terms and conditions acceptable to the City Attorney and Public Works
Director.
SUMMARY: The 2023 Railroad Quiet Zone Project ("Project") includes work to
support future railroad Quiet Zones and grade crossing safety improvements at up
to 13 railroad crossings. Eight of these crossings are located across the Burlington
Northern Santa Fe (BNSF) tracks. In addition, the Project will add security fencing
at select locations along the BNSF tracks between S. 212th St. and S. 259th St.
To complete the Project, the City must enter into agreements with the BNSF
Railway for the construction and maintenance of the Project improvements. These
agreements will include: a Grade Crossing Construction and Maintenance
Agreement for all crossings and a separate lease agreement for the installation and
maintenance of fencing along the tracks on BNSF property. The specific terms and
conditions are still being negotiated, but will be substantially similar to the terms
and conditions in the agreements attached.
BUDGET IMPACT: Council has approved accepting a grant from the Washington
State Department of Commerce for $2.95M for the work associated with this
Project. Work completed prior to June 30, 2023 is eligible for reimbursement from
the state, work completed starting July 1, 2023 will be funded by the City through
budgeted project funding.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
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Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. Draft BNSF Railway Grade Crossing Construction and Maintenance Agreement
(PDF)
2. Draft Indefinite Term Lease for Land (PDF)
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Contract Number: BF-20237650
GRADE CROSSING CONSTRUCTION AND MAINTENANCE AGREEMENT
BNSF File No.: BF-20237650
Mile Post 14.1X-17.1X
Line Segment 51
U.S. DOT Number 085642Y, 085640K, 085639R, 085637C, 085636V, 085633A,
085629K, 085625H
Subdivision Seattle
This Agreement ("Agreement"), is executed to be effective as of r ]
("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware
corporation ("BNSF") and the , a political subdivision of the State of ("Agency").
RECITALS
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Kent,
State of Washington;
WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is
undertaking a project to improve the existing 2591", Willis, Titus, Gowe, Meeker, Smith,
James, and 212th at -grade crossing, located at BNSF Line Segment and Milepost , and
designated by D.O.T. No. 085642Y, 085640K, 085639R, 085637C, 085636V, 085633A,
085629K, 085625H, by within the existing roadway easement across the BNSF right-of-
way as indicated on the Exhibit A, attached hereto and incorporated herein; and
WHEREAS, the Agency desires to preempt the highway traffic control signals with the
grade crossing warning devices shown on Exhibit A; and
WHEREAS, "BNSF" agrees to allow the Agency to preempt the highway traffic control
signals with the grade crossing warning devices indicated on Exhibit A.
WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefit
from the installation of advance warning signs, pavement marking stop bars or crossing
signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); and
WHEREAS, the Agency is paying for the acquisition and installation of crossing signal
equipment at 259t", Willis, Titus, Gowe, Meeker, Smith, James, and 212t".with State and
Federal funds pursuant to 23 U.S.C. § 130"
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WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the
crossing signal equipment described in the scope of work herein, and upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I — SCOPE OF WORK
1) The term "Project" as used herein includes any and all work related to the
construction of the 259th, Willis, Titus, Gowe, Meeker, Smith, James, and 212th by
Agency and installation of LED upgrades and crossing modifications at U.S. D.O.T
No. 085642Y, 085640K, 085639R, 085637C, 085636V, 085633A, 085629K,
085625H, (hereinafter referred to as the "Crossing") by BNSF, more particularly
described on the Exhibit A, including, but not limited to, any and all changes to
telephone, telegraph, signal and electrical lines and appurtenances, temporary and
permanent track work, fencing, grading, alterations to or new construction of drainage
facilities, preliminary and construction engineering and contract preparation.
ARTICLE II — RAILROAD OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful
performance thereof, BNSF agrees as follows:
1) Upon Agency's payment to BNSF of an administrative fee in the sum of Two Thousand
Five Hundred and No/100 Dollars ($2,500), together with the Temporary Construction
License Fee in the sum of $[ j and No/100 Dollars ($ ),
BNSF hereby grants to Agency, its successors and assigns, upon and subject to the
terms and conditions set forth in this Agreement, a temporary non-exclusive license
(hereinafter called, "Temporary Construction License") to enter upon and use the
portion of BNSF's right-of-way as is necessary to and thereafter maintain, the
Crossing as described further on Exhibit A-1, excepting and reserving BNSF's rights,
and the rights of any others who have obtained, or may obtain, permission or authority
from BNSF, to do the following:
A. Operate, maintain, renew and/or relocate any and all existing railroad track or
tracks, wires, pipelines and other facilities of like character upon, over or under the
surface of said right-of-way;
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Contract Number: BF-20237650
B. Construct, operate, maintain, renew and/or relocate upon said right-of-way,
without limitation, such facilities as the BNSF may from time to time deem
appropriate;
C. Otherwise use or operate the right-of-way as BNSF may from time to time deem
appropriate.
The term of the Temporary Construction License begins on the Effective Date and
ends on the earlier of (i) substantial completion of the Structure, or (ii) 24] months
following the Effective Date. The Temporary Construction License and related rights
given by BNSF to Agency in this provision are without warranty of title of any kind,
express or implied, and no covenant of warranty of title will be implied from the use of
any word or words herein contained. The Temporary Construction License is for
construction of the Structure only and shall not be used by Agency for any other
purpose. Agency acknowledges and agrees that Agency shall not have the right,
under the Temporary Construction License, to use the Structure for any other purpose
than construction. In the event Agency is evicted by anyone owning, or claiming title
to or any interest in said right-of-way, BNSF will not be liable to Agency for any
damages, losses or any expenses of any nature whatsoever. The granting of similar
rights to others, subsequent to the date of this Agreement, will not impair or interfere
with the rights granted to Agency herein.
2) BNSF will furnish all labor, materials, tools, and equipment for railroad work required
for the construction of the Project, such railroad work and the estimated cost thereof
being as shown on Exhibit D attached hereto and made a part hereof. In the event
construction on the Project has not commenced within six (6) months following the
Effective Date, BNSF may, in its sole and absolute discretion, revise the cost
estimates set forth in said Exhibit D. In such event, the revised cost estimates will
become a part of this Agreement as though originally set forth herein. Any item of
work incidental to the items listed on Exhibit D not specifically mentioned therein may
be included as a part of this Agreement upon written approval of Agency, which
approval will not be unreasonably withheld. Construction of the Project must include
the following railroad work by BNSF:
A. Procurement of materials, equipment and supplies necessary for the railroad
work;
B. Preliminary engineering, design, and contract preparation;
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C. Furnishing of flagging services during construction of the Project as required and
set forth in further detail on Exhibit C, attached to this Agreement and made a part
hereof;
D. Furnishing engineering and inspection as required in connection with the
construction of the Project;
E. Installation of Crossing Signal Equipment as shown on Exhibit A
F. Provide an interface box, with contact terminals, mounted on side of Crossing
Signal Control House
G. Make such changes in the alignment, location and elevation of its telephone,
telegraph, signal and/or wire lines and appurtenances along, over or under the
tracks, both temporary and permanent, as may become necessary by reason of
the construction of the Project.
3) BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost
basis, when BNSF, in its sole discretion, determines it is required by its labor
agreements to perform such work with its own employees working under applicable
collective bargaining agreements.
4) Agency agrees to reimburse BNSF for work of an emergency nature caused by
Agency or Agency's contractor in connection with the Project which BNSF deems is
reasonably necessary for the immediate restoration of railroad operations, or for the
protection of persons or BNSF property. Such work may be performed by BNSF
without prior approval of Agency and Agency agrees to fully reimburse BNSF for all
such emergency work.
5) BNSF may charge Agency for insurance expenses, including self-insurance
expenses, when such expenses cover the cost of Employer's Liability (including,
without limitation, liability under the Federal Employer's Liability Act) in connection with
the construction of the Project. Such charges will be considered part of the actual
cost of the Project, regardless of the nature or amount of ultimate liability for injury,
loss or death to BNSF's employees, if any.
6) During the construction of the Project, BNSF will send Agency progressive invoices
detailing the costs of the railroad work performed by BNSF under this Agreement.
Agency must reimburse BNSF for completed force -account work within thirty (30) days
of the date of the invoice for such work. Upon completion of the Project, BNSF will
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send Agency a detailed invoice of final costs, segregated as to labor and materials for
each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article
IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the
date of the final invoice. BNSF will assess a finance charge of .033% per day (12%
per annum) on any unpaid sums or other charges due under this Agreement which
are past its credit terms. The finance charge continues to accrue daily until the date
payment is received by BNSF, not the date payment is made or the date postmarked
on the payment. Finance charges will be assessed on delinquent sums and other
charges as of the end of the month and will be reduced by amounts in dispute and
any unposted payments received by the month's end. Finance charges will be noted
on invoices sent to Agency under this section.
ARTICLE III — AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance
thereof, Agency agrees as follows:
1) Agency must furnish to BNSF plans and specifications for the Project. Said plans
(reduced size 11" x 17"), showing the plan and profile of the roadway work on BNSF
right-of-way and marked as Exhibit A, attached hereto and made a part hereof, must
be submitted to BNSF for the development of railroad cost estimates.
2) Agency must make any required application and obtain all required permits and
approvals for the construction of the Project.
3) Agency must acquire all rights of way necessary for the construction of the Project.
4) Agency must make any and all arrangements, in compliance with BNSF's Utility
Accommodation Manual (http://www.bnsf.com/communities/fags/pdf/utility.pdf), for
the installation or relocation of wire lines, pipe lines and other facilities owned by
private persons, companies, corporations, political subdivisions or public utilities other
than BNSF which may be necessary for the construction of the Project.
5) Agency must construct the Project as shown on the attached Exhibit A and do all work
("Agency's Work") provided for in the plans and specifications for the Project, except
railroad work that will be performed by BNSF hereunder. Agency must furnish all
labor, materials, tools and equipment for the performance of Agency's Work. The
principal elements of Agency's Work are as follows:
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Contract Number: BF-20237650
A. Design and Construction of 259t", Willis, Titus, Gowe, Meeker, Smith, James,
and 212t";
B. Installation of a pavement marking stop bar in accordance with the Manual on
Uniform Traffic Control Devices (hereinafter called, "MUTCD");
C. Installation of advance warning signs in accordance with the MUTCD
D. Perform all necessary grading and paving, including backfill of excavations and
restoration of disturbed vegetation on BNSF's right-of-way;
E. Provide suitable drainage, both temporary and permanent;
F. Provide all barricades, lights, flagmen or traffic control devices necessary for
preventing vehicular traffic from using a portion of the Crossing, during the
installation of the concrete crossing surfaces, and also during the installation of the
Crossing Signal Equipment.
G. Construct concrete roadway surface on approaches to each track.
H. Provide and place six (6) to twelve (12) inch wide section of concrete between
roadway concrete headers (and sidewalks) and the new concrete crossing
surfaces, including that portion of 259t", Willis, Titus, Gowe, Meeker, Smith, James,
and 212th located between the Main Tracks and siding track.
I. Job site cleanup including removal of all construction materials, concrete debris,
surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste
materials to the satisfaction of BNSF;
J. Provide BNSF in writing with the total time required from start of preempt cycle of
highway traffic control signals until arrival of the train at the highway -rail crossing.
K. Connect the highway traffic control signals to the contact terminals in the interface
box including all necessary cable and conduit.
L. Install the new highway traffic control signals.
6) The Agency will approve the location of the signals and signal bungalow prior to the
installation by BNSF.
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7) The Agency must have advanced railroad crossing signs and standard pavement
markings in place at the crossing shown on Exhibit A (if the same are required by the
MUTCD) prior to the acceptance of this Project by the Agency.
8) The Agency must give BNSF's Manager Public Projects written notice to proceed
("Notice to Proceed") with the railroad portion of the work after receipt of necessary
funds for the Project. BNSF will not begin the railroad work (including, without
limitation, procurement of supplies, equipment or materials) until written Notice to
Proceed is received from Agency.
9) The Agency's Work must be performed by Agency or Agency's contractor in a manner
that will not endanger or interfere with the safe and timely operations of BNSF and its
facilities.
10) For any future inspection or maintenance, either routine or otherwise, performed
by subcontractors on behalf of the Agency, Agency shall require the subcontractors
to comply with the provisions of the attached Exhibit C and execute the agreement
attached hereto as Exhibit C-1. Prior to performing any future maintenance with its
own personnel, Agency shall: comply with all of BNSF's applicable safety rules and
regulations; require any Agency employee performing maintenance to complete the
safety training program at the BNSF's Internet Website
"www.contractororientation.com"; notify BNSF when, pursuant to the requirements of
Exhibit C, a flagger is required to be present; procure, and have approved by BNSF's
Risk Management Department, Railroad Protective Liability insurance.
11) Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty
(30) calendar days prior to requesting a BNSF flagman in accordance with the
requirements of Exhibit C attached hereto. Additionally, Agency must require its
contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days
prior to commencing work on BNSF property or near BNSF tracks.
12) Agency must include the following provisions in any contract with its contractor(s)
performing work on said Project:
A. The Contractor is placed on notice that fiber optic, communication and other cable
lines and systems (collectively, the "Lines") owned by various telecommunications
companies may be buried on BNSF's property or right-of-way. The locations of
these Lines have been included on the plans based on information from the
telecommunications companies. The contractor will be responsible for contacting
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BNSF and the telecommunications companies and notifying them of any work that
may damage these Lines or facilities and/or interfere with their service. The
contractor must also mark all Lines shown on the plans or marked in the field in
order to verify their locations. The contractor must also use all reasonable
methods when working in the BNSF right-of-way or on BNSF property to determine
if any other Lines (fiber optic, cable, communication or otherwise) may exist.
B. Failure to mark or identify these Lines will be sufficient cause for BNSF's
engineering representative Marshall Flores at (253) 591-3000 to stop construction
at no cost to the Agency or BNSF until these items are completed.
C. The Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor must cooperate fully
with any telecommunications company(ies) in performing such rearrangements.
D. In addition to the liability terms contained elsewhere in this Agreement, the
contractor hereby indemnifies, defends and holds harmless BNSF for, from and
against all cost, liability, and expense whatsoever (including, without limitation,
attorney's fees and court costs and expenses) arising out of or in any way
contributed to by any act or omission of Contractor, its subcontractors, agents
and/or employees that cause or in any way or degree contribute to (1) any damage
to or destruction of any Lines by Contractor, and/or its subcontractors, agents
and/or employees, on BNSF's property or within BNSF's right-of-way, (2) any injury
to or death of any person employed by or on behalf of any telecommunications
company, and/or its contractor, agents and/or employees, on BNSF's property or
within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss
of profits or revenue by, or loss of service by a customer or user of such
telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE
DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM
WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE
INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
13)Agency must require compliance with the obligations set forth in this agreement,
including Exhibit C and Exhibit C-1, and incorporate in each prime contract for
construction of the Project, or the specifications therefor (i) the provisions set forth in
Article I I I and IV; and (ii) the provisions set forth in Exhibit C and Exhibit C-1, attached
hereto and by reference made a part hereof.
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14) Except as otherwise provided below in this Section 13, all construction work performed
hereunder by Agency for the Project will be pursuant to a contract or contracts to be
let by Agency, and all such contracts must include the following:
A. All work performed under such contract or contracts within the limits of BNSF's
right-of-way must be performed in a good and workmanlike manner in accordance
with plans and specifications approved by BNSF;
B. Changes or modifications during construction that affect safety or BNSF operations
must be subject to BNSF's approval;
C. No work will be commenced within BNSF's right-of-way until each of the prime
contractors employed in connection with said work must have (i) executed and
delivered to BNSF an agreement in the form of Exhibit C-I, and (ii) delivered to and
secured BNSF's approval of the required insurance; and
D. If it is in Agency's best interest, Agency may direct that the construction of the
Project be done by day labor under the direction and control of Agency, or if at any
time, in the opinion of Agency, the contractor has failed to prosecute with diligence
the work specified in and by the terms of said contract, Agency may terminate its
contract with the contractor and take control over the work and proceed to
complete the same by day labor or by employing another contractor(s) provided;
however, that any contractor(s) replacing the original contractor(s) must comply
with the obligations in favor of BNSF set forth above and, provided further, that if
such construction is performed by day labor, Agency will, at its expense, procure
and maintain on behalf of BNSF the insurance required by Exhibit C-1.
E. To facilitate scheduling for the Project, Agency shall have its contractor give
BNSF's Roadmaster 90 days advance notice of the proposed times and dates for
work windows. BNSF and Agency's contractor will establish mutually agreeable
work windows for the Project. BNSF has the right at any time to revise or change
the work windows, due to train operations or service obligations. BNSF will not be
responsible for any additional costs and expenses resulting from a change in work
windows. Additional costs and expenses resulting from a change in work windows
shall be accounted for in the contractor's expenses for the Project.
15)Agency must advise the appropriate BNSF Manager Public Projects, in writing, of the
completion date of the Project within thirty (30) days after such completion date.
Additionally, Agency must notify BNSF's Manager Public Projects, in writing, of the
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date on which Agency and/or its Contractor will meet with BNSF for the purpose of
making final inspection of the Project.
16)TO THE FULLEST EXTENT PERMITTED BY THE LAWS OF THE STATE OF
WASHINGTON, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND
HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS,
SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS 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 AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF
ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE
PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF,
RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (1) THE USE,
OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (11) THE PERFORMANCE, OR FAILURE TO PERFORM BY
THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE
SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR
ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE
TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO
AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS
OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY
OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT
MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR
OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES
OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY
ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER.
THE LIABILITY ASSUMED BY AGENCY WILL APPLY ONLY TO THE EXTENT OF
THE NEGLIGENCE OF AGENCY, ITS AGENTS OR EMPLOYEES, AND THIS WILL
NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED
TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
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PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
It is mutually negotiated between the parties that the indemnification obligation
shall include all claims brought by Agency's employees against BNSF, its
agents, servants, employees or otherwise, and Agency expressly waives its
immunity under the industrial insurance act (RCW Title 51) and assumes
potential liability for all actions brought by its employees.
ARTICLE IV — JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following
1) All work contemplated in this Agreement must be performed in a good and
workmanlike manner and each portion must be promptly commenced by the party
obligated hereunder to perform the same and thereafter diligently prosecuted to
conclusion in its logical order and sequence. Furthermore, any changes or
modifications during construction which affect BNSF will be subject to BNSF's
approval prior to the commencement of any such changes or modifications.
2) The work hereunder must be done in accordance with the Exhibit A and the detailed
plans and specifications approved by BNSF.
3) Agency must require its contractor(s) to reasonably adhere to the Project's
construction schedule for all Project work. The parties hereto mutually agree that
BNSF's failure to complete the railroad work in accordance with the construction
schedule due to inclement weather or unforeseen railroad emergencies will not
constitute a breach of this Agreement by BNSF and will not subject BNSF to any
liability. Regardless of the requirements of the construction schedule, BNSF reserves
the right to reallocate the labor forces assigned to complete the railroad work in the
event of an emergency to provide for the immediate restoration of railroad operations
of either BNSF or its related railroads, or to protect persons or property on or near any
BNSF owned property. BNSF will not be liable for any additional costs or expenses
resulting from any such reallocation of its labor forces. The parties mutually agree
that any reallocation of labor forces by BNSF pursuant to this provision and any direct
or indirect consequences or costs resulting from any such reallocation will not
constitute a breach of this Agreement by BNSF.
4) BNSF will have the right to stop construction work on the Project if any of the following
events take place: (i) Agency (or any of its contractors) performs the Project work in a
manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or
any of its contractors), in BNSF's opinion, prosecutes the Project work in a manner
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Contract Number: BF-20237650
that is hazardous to BNSF property, facilities or the safe and expeditious movement
of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled
during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary
Construction License or the Easement pursuant to Article II, Section 1 of this
Agreement. The work stoppage will continue until all necessary actions are taken by
Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division
Engineer or until proof of additional insurance has been delivered to and accepted by
BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction
License, or (iii) the Easement, BNSF may immediately terminate the Temporary
Construction License or the Easement. Any such work stoppage under this provision
will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is
in addition to any other rights BNSF may have including, but not limited to, actions or
suits for damages or lost profits. In the event that BNSF desires to stop construction
work on the Project, BNSF agrees to immediately notify the following individual in
writing:
5) Agency must supervise and inspect the operations of all Agency contractors to ensure
compliance with the plans and specifications approved by BNSF, the terms of this
Agreement and all safety requirements of BNSF. If BNSF determines that proper
supervision and inspection are not being performed by Agency personnel at any time
during construction of the Project, BNSF has the right to stop construction (within or
adjacent to its operating right-of-way). Construction of the Project will not proceed
until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels
the situation is not being corrected in an expeditious manner, BNSF will immediately
notify [ j for appropriate corrective action.
6) Pursuant to this section and Article II, Section 6 herein, Agency must, out of funds
made available to it for the construction of the Project, reimburse BNSF in full for the
actual costs of all work performed by BNSF under this Agreement (including taxes,
such as applicable sales and use taxes, business and occupation taxes, and similar
taxes), less BNSF's Share as set forth in Article IV, Section 6 herein.
7) All expenses detailed in statements sent to Agency pursuant to Article II, Section 6
herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23
Code of Federal Regulations, and the Federal -Aid Policy Guide, U.S. Department of
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Transportation, as amended from time to time, which manual is hereby incorporated
into and made a part of this Agreement by reference. The parties mutually agree that
BNSF's preliminary engineering, design, and contract preparation costs described in
Article II, Section 2 herein are part of the costs of the Project even though such work
may have preceded the date of this Agreement.
8) The construction of the Project will not commence until Agency gives BNSF's Manager
Public Projects thirty (30) days prior written notice of such commencement. The
commencement notice will reference BNSF's file number and D.O.T. Crossing No.
and must state the time that construction activities will begin.
9) In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF
and the Agency agree to the following terms upon completion of construction of the
Project:
A. Agency will own and be fully responsible for repairs, maintenance, future
construction or reconstruction of the 2591", Willis, Titus, Gowe, Meeker, Smith,
James, and 212th roadway including the portion of roadway located between
the tracks.
B. will maintain the elevation of the 259t", Willis, Titus, Gowe, Meeker, Smith,
James, and 212th roadway approaches to match the elevation on the railroad
track crossing surfaces and to be no more than three (3) inches above or six
(6) inches below top -of -rail elevation at a distance measured thirty (30) feet
from the nearest rail.
C. Agency will maintain the advanced railroad crossing warning signs and
pavement markings and agrees to hold harmless and indemnify BNSF for any
claims, damages or losses, in whole or in part, caused by or due to the
Agency's failure to maintain the advanced warning signs and markings or other
requirements of the MUTCD.
D. Agency will do nothing and permit nothing to be done in the maintenance of the
259t", Willis, Titus, Gowe, Meeker, Smith, James, and 212th roadway, which
will interfere with or endanger facilities of BNSF.
E. It is expressly understood by Agency and BNSF that any right to install utilities
will be governed by a separate permit or license agreement between the parties
hereto.
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Contract Number: BF-20237650
F. BNSF will, at its sole cost and expense, operate and maintain the Crossing
Signal Equipment, Crossing Signal Control House, and the new crossing
surfaces, from end -of -tie to end -of -tie, in proper condition.
G. Notwithstanding the preceding provision, if any regulations, ordinances, acts,
rules or other laws subsequently passed or amended by the Agency or any
other governmental or legislative authority increase the Agency's portion of
maintenance cost under this Agreement, BNSF will receive the benefit of any
such regulations, ordinances, acts, rules or other laws and the Agency's
increased portion of maintenance costs will be incorporated into and made a
part of this Agreement.
H. If a railway or highway improvement project necessitates rearrangement,
relocation, or alteration of the Crossing Signal Equipment, Crossing Signal
House, installed hereunder, the costs for such rearrangement, relocation or
alteration will be the responsibility of the party requesting such changes.
If any of the Crossing Signal Equipment is partially or wholly destroyed, then
such repair and/or replacement costs must be distributed among the parties
as follows:
i) In the event the BNSF's sole negligence destroys or damages the
Crossing Signal Equipment and/or the Crossing Signal House, BNSF
must, at its sole cost and expense, replace or repair such Crossing Signal
Equipment and/or Crossing Signal House.
ii) In the event the Crossing Signal Equipment is damaged or destroyed by
any other cause, Agency must reimburse BNSF for the costs to replace
or repair such Crossing Signal Equipment and/or Crossing Signal House.
J. If the Crossing Signal Equipment and/or Crossing Signal House installed
hereunder cannot, through age, be maintained, or by virtue of its
obsolescence, requires replacement, the cost of installation of the new
crossing signal equipment and/or new crossing signal house will be
negotiated by the parties hereto on the basis of the current Federal Aid
Railroad Signal Program participation and applicable Agency.
K. BNSF will operate and maintain, at its expense, the necessary relays and
other materials required to preempt the highway traffic control signals with the
grade crossing warning devices.
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L. BNSF will operate and maintain, at its expense, the railroad crossing warning
devices up to the contact terminals in the interface box.
M. Agency will own, operate and maintain, at its expense, the highway traffic
control signals up to and including connection to the contact terminals in the
interface box including all necessary cable and conduit.
10) Agency must notify and obtain prior authorization from BNSF's Manager of Public
Projects before entering BNSF's right-of-way for Inspection and Maintenance
purposes and the BNSF Manager of Public Projects will determine if flagging is
required. If the construction work hereunder is contracted, Agency must require its
prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-
1, as the same may be revised from time to time. Agency will be responsible for its
contractor(s) compliance with such obligations.
11) Any books, papers, records and accounts of the parties hereto relating to the work
hereunder or the costs or expenses for labor and material connected with the
construction will at all reasonable times be open to inspection and audit by the agents
and authorized representatives of the parties hereto, as well as the State of
Washington and the Federal Highway Administration, for a period of one (1) year from
the date of the final BNSF invoice under this Agreement.
12) The covenants and provisions of this Agreement are binding upon and inure to the
benefit of the successors and assigns of the parties hereto. Notwithstanding the
preceding sentence, neither party hereto may assign any of its rights or obligations
hereunder without the prior written consent of the other party.
13) In the event construction of the Project does not commence within 12 months of
the Effective Date, this Agreement will become null and void.
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14) Neither termination nor expiration of this Agreement will release either party from
any liability or obligation under this Agreement, whether of indemnity or otherwise,
resulting from any acts, omissions or events happening prior to the date of termination
or expiration.
15) To the maximum extent possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law. If any
provision of this Agreement is prohibited by, or held to be invalid under, applicable
law, such provision will be ineffective solely to the extent of such prohibition or
invalidity and the remainder of the provision will be enforceable.
16) This Agreement (including exhibits and other documents, manuals, etc.
incorporated herein) is the full and complete agreement between BNSF and Agency
with respect to the subject matter herein and supersedes any and all other prior
agreements between the parties hereto.
17) Any notice provided for herein or concerning this Agreement must be in writing and
will be deemed sufficiently given when sent by certified mail, return receipt requested,
to the parties at the following addresses:
BNSF: BNSF's Manager Public Projects
Agency:
Alex Funderburg
605 Puyallup Ave
Tacoma, WA, 98403
SIGNATURE PAGE FOLLOWS
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Contract Number: BF-20237650
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and attested by its duly qualified and authorized officials as of the day and year first above
written.
WITNESS:
WITNESS:
BNSF RAILWAY COMPANY
IS
Printed Name:
Title:
AGENCY
13
'Ji =@ — 010Fr,MI M
Title:
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Exhibit A
Contract Number: BF-20237650
[Insert plan and profile layout of the crossing improvements provided by Agency]
[Insert BNSF signal sketch]
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Exhibit A-1
Contract Number: BF-20237650
[Insert cross -hatched drawing of the Temporary Construction License and Structure]
[BARTLETT AND WEST TO PREPARE EXHIBIT A-1]
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FOR
EASEMENT AGREEMENT
(C&M Agreement)
THIS EASEMENT AGREEMENT FOR
Agreement") is made and entered into
COMPANY, a
a
Contract Number: BF-20237650
("Easement
day of
20_ ("Effective Date"), by and between BNSF RAILWAY
Delaware corporation ("Grantor"), and ,
("Grantee").
as of the
A. Grantor owns or controls certain real property situated at or near the vicinity
of , County of , State of , at Mile
Post [Project # ], as described or depicted on Exhibit "A"
attached hereto and made a part hereof (the "Premises").
B. Grantor and Grantee have entered into that certain Construction and
Maintenance Agreement dated as of
concerning improvements on or near the Premises (the "C&M Agreement").
C. Grantee has requested that Grantor grant to Grantee an easement over the
Premises for the Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms
and conditions set forth in this Easement and in the C&M Agreement incorporated herein
as if fully set forth in this instrument which terms shall be in full force and effect for
purposes of this Easement even if the C&M Agreement is, for whatever reason, no longer
in effect.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are
incorporated herein, the mutual promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
Section 1 Granting of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the
C&M Agreement. Any improvements to be constructed in connection with the Easement
Purpose are referred to herein as "Improvements" and shall be constructed, located,
configured and maintained by Grantee in strict accordance with the terms of this
Easement Agreement and the C&M Agreement.
1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement
("Easement") over the
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Contract Number: BF-20237650
Premises for the Easement Purpose and for no other purpose. The Easement is granted
subject to any and all restrictions, covenants, easements, licenses, permits, leases and
other encumbrances of whatsoever nature whether or not of record, if any, relating to the
Premises and subject to all
with all applicable federal, state and local laws, regulations, ordinances, restrictions,
covenants and court or administrative decisions and orders, including Environmental
Laws (defined below) and zoning laws (collectively, "Laws"). Grantee may not make any
alterations or improvements or perform any maintenance or repair activities within the
Premises except in accordance with the terms and conditions of the C&M Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be
exercised by Grantor and any other parties who may obtain written permission or authority
from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any existing pipe, power, communication, cable, or utility lines and
appurtenances and other facilities or structures of like character (collectively, "Lines")
upon, over, under or across the Premises;
(b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any tracks or additional facilities or structures upon, over, under or across the
Premises; and
(c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate,
provided Grantor uses all commercially reasonable efforts to avoid material interference
with the use of the Premises by Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated
under provisions of this Easement Agreement, shall be perpetual. [*If this is a temporary
easement, replace the precedin_q sentence with the followin_g: The term of this
Easement, unless sooner terminated under provisions of this Easement Agreement, shall
expire on the date that is after the Effective
Date.]
Section 3 No Warranty of Any Conditions of the
Premises. Grantee acknowledges that Grantor has made no representation
whatsoever to Grantee concerning the state or condition of the Premises, or any
personal property located thereon, or the nature or extent of Grantor's ownership
interest in the Premises. Grantee has not relied on any statement or declaration of
Grantor, oral or in writing, as an inducement to entering into this Easement Agreement,
other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO
THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR
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Contract Number: BF-20237650
CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP
OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO
ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE
OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO
THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR
CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY
TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER
THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND
"WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON
GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has
inspected or will inspect the Premises, and enters upon Grantor's rail corridor and
property with knowledge of its physical condition and the danger inherent in Grantor's rail
operations on or near the Premises. Grantee acknowledges that this Easement
Agreement does not contain any implied warranties that Grantee or Grantee's
Contractors (as hereinafter defined) can successfully construct or operate the
Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT
WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE
IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming
title to or any interest in the Premises, or by the abandonment by Grantor of the affected
rail corridor, Grantor shall not be liable to ofund Grantee any compensation paid
hereunder. %
Section 5Improvements. Grantee shall take, in a timely manner, all actions necessary and
proper to the lawful establishment, construction, operation, and maintenance of the
Improvements, including such actions as may be necessary to obtain any required permits,
approvals or authorizations from applicable governmental authorities. Any and all cuts and fills,
excavations or embankments necessary in the construction, maintenance, or future alteration of
the Improvements shall be made and maintained in such manner, form and extent as will
provide adequate drainage of and from the adjoining lands and premises of the Grantor; and
wherever any such fill or embankment shall or may obstruct the natural and pre-existing
drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain
such culverts or drains as may be requisite to preserve such natural and pre-existing drainage,
and shall also wherever necessary, construct extensions of existing drains, culverts or ditches
through or along the premises of the Grantor, such extensions to be of adequate sectional
dimensions to preserve the present flowage of drainage or other waters, and of materials and
workmanship equally as good as those now existing. In the event any construction, repair,
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maintenance, work or other use of the Premises by Grantee will affect any Lines, fences,
buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be
responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other
Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of
any work that may damage these Other Improvements and/or interfere with their service and
obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must
mark all Other Improvements on the Plans and Specifications and mark such Other
Improvements in the field in order to verify their locations. Grantee must also use all reasonable
methods when working on or near Grantor property to determine if any Other Improvements
(fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the
above -described premises free and clear from combustible materials and to cut and remove or
cause to be cut and removed at its sole expense all weeds and vegetation on said premises,
said work of cutting and removal to be done at such times and with such frequency as to comply
with Grantee and local laws and regulations and abate any and all hazard of fire.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments
or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any
governmental or quasi -governmental body or any Taxes levied or assessed against Grantor or
the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and
cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and
all required transfer taxes, excise taxes and any and all fees incidental to recordation of the
Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become
obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against
Grantor, including all of Grantor's legal fees and expenses.
Section 7 Environmental.
7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all
federal, state and local environmental Laws in its use of the Premises, including, but not limited
to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the
Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act
(collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment,"
"storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are
defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or
suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and
"hazardous substances" may now or in the future be defined by any Environmental Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's
Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or
from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to Grantee's use of the
Premises. Grantee shall use its best efforts to promptly respond to any release on or from the
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Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf
of Grantee to investigate, remediate, respond to or otherwise cure such release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from Grantee or
otherwise of a release or violation of Environmental Laws which occurred or may occur during the
term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and
expense, to take timely measures to investigate, remediate, respond to or otherwise cure such
release or violation affecting the Premises. If during the construction or subsequent maintenance
of the Improvements, soils or other materials considered to be environmentally contaminated are
exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of
soils contamination and applicable disposal procedures thereof, will be made only by an agency
having the capacity and authority to make such a determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any
conditions or activities upon the Premises known to Grantee 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
Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on
it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for
information regarding said conditions or activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof
satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not
comply fully with the above -stated obligations of this Section 7, notwithstanding anything
contained in any other provision hereof, Grantor may, at its option, terminate this Easement
Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination,
Grantee shall remove the Improvements and restore the Premises as provided in Section 9.
Section 8 Default and Termination.
8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's
Contractors, fails to properly perform its obligations under this Easement Agreement,
Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed
obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work
as Grantor deems necessary for the safety of its rail operations, activities and property,
or to avoid or remove any interference with the activities or property of Grantor, or anyone
or anything present on the rail corridor or property with the authority or permission of
Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on
Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform
any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation
set forth in this Easement Agreement.
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8.2 Abandonment. Grantor may, at its option, terminate this Easement
Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should
abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor
of any default or defaults shall not constitute a waiver of the right to terminate this
Easement Agreement for any subsequent default or defaults, nor shall any such waiver
in any way affect Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will
release Grantee from any liability or obligation under this Easement, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date the Premises are restored as required by
Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be
in addition to, and not in limitation of, any other remedies that Grantor may have under
the C&M Agreement, at law or in equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this
Easement Agreement, whether by abandonment of the Easement or by the exercise of
Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense,
immediately perform the following:
(a) remove all or such portion of Grantee's Improvements and
all
(b) appurtenances thereto from the Premises, as Grantor directs
at Grantor's sole discretion;
(c) repair and restore any damage to the Premises arising from,
growing out of, or connected with Grantee's use of the
Premises;
(d) remedy any unsafe conditions on the Premises created or
aggravated by Grantee; and
(e) leave the Premises in the condition which existed as of the
Effective Date.
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9.2 Limited License for Entry. If this Easement Agreement is terminated,
Grantor may direct Grantee to undertake one or more of the actions set forth above, at
Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the
Premises to the extent necessary to undertake the actions directed by Grantor. The terms
of this limited license include all of Grantee's obligations under this Easement Agreement.
Termination will not release Grantee from any liability or obligation under this Easement
Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination, or, if later, the date when Grantee's
Improvements are removed and the Premises are restored to the condition that existed
as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any
termination of the Easement, all liabilities and obligations of Grantee hereunder shall
continue in effect until the Premises are surrendered.
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens
arising out of any construction, alterations or repairs done, suffered or permitted to be
done by Grantee on the Premises or attributable to Taxes that are the responsibility of
Grantee pursuant to Section 6. Grantor 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 any portion of the Premises; provided,
however, that failure of Grantor to take any such action shall not relieve Grantee of any
obligation or liability under this Section 10 or any other section of this Easement
Agreement.
Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations)
under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange
intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal
Revenue Code. In such event, Grantor shall provide Grantee with a Notice of
Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of
receipt of such notice.
Section 12 Notices. Any notice required or permitted to be given hereunder
by one party to the other shall be delivered in the manner set forth in the C&M
Agreement. Notices to Grantor under this Easement shall be delivered to the following
address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft.
Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time
direct by notice to Grantee.
Section 13 Recordation. It is understood and agreed that this Easement
Agreement shall not be in recordable form and shall not be placed on public record and
any such recording shall be a breach of this Easement Agreement. Grantor and Grantee
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shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B"
(the "Memorandum of Easement") subject to changes required, if any, to conform such
form to local recording requirements. [*IF LEGAL DESCRIPTION IS NOT AVAILABLE
USE THE FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As of the Effective
Date, a legal description of the Premises is not available. Grantee and Grantor shall work
together in good faith to establish the legal description for the Premises. Once Grantor
and Grantee have approved the legal description, Grantor and Grantee shall execute a
Memorandum of Easement in the form attached hereto as Exhibit "B" (the
"Memorandum of Easement').] The Memorandum of Easement shall be
recorded in the real estate records in the county where the Premises are located. If a
Memorandum of Easement is not executed by the parties and recorded as described
above within days of the Effective Date, Grantor shall have the right to terminate
this Easement Agreement upon notice to Grantee.
Section 14 Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of
this Easement Agreement shall be decided according to the substantive Laws of the State
of [Texas] without regard to conflicts of law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants
and agreements of Grantee herein contained shall be the joint and several covenants and
agreements of such parties. This instrument and all of the terms, covenants and
provisions hereof shall inure to the benefit of and be binding upon each of the parties
hereto and their respective legal representatives, successors and assigns and shall run
with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms
of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other relief to which
such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or
unenforceable under present or future Laws, such provision will be fully severable and
this Easement Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision is not a part hereof, and the remaining provisions hereof will
remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision
herein, there will be added automatically as a part of this Easement Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
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14.5 This Easement Agreement and the C&M Agreement, which is incorporated herein,
is the full and complete agreement between Grantor and Grantee with respect to all matters
relating to Grantee's use of the Premises, and supersedes any and all other agreements between
the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing
herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to
defend and hold Grantor harmless in any prior written agreement between the parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
Section 15. Administrative Fee. Grantee acknowledges that a material consideration for this
agreement, without which it would not be made, is the agreement between Grantee and Grantor,
that the Grantee shall pay upon return of this Easement Agreement signed by Grantee to
Grantor's Broker a processing fee in the amount of $ over and above the agreed
upon acquisition price. Said fee shall be made payable to BNSF Railway Company by a separate
check.
Witness the execution of this Easement Agreement as of the date first set forth above
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware
corporation
By:
Name:
Title:
GRANTEE:
N.
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By:
Name:
Title:
Easement Agreement
Contract Number: BF-20237650
Form 704CM; Rev. 03/23/2019
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EXHIBIT "A"
Premises
Easement Exhibit - A
Contract Number: BF-20237650
Form 704CM; Rev. 03/23/2019
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Contract Number: BF-20237650
EXHIBIT "B"
MEMORANDUM OF EASEMENT
THIS MEMORANDUM OF EASEMENT is hereby executed this day
of , 201_, by and between BNSF RAILWAY COMPANY, a
Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500
Lou Menk Drive, Fort Worth, Texas 76131, and
a
("Grantee"), whose address for purposes of this instrument is
, which terms "Grantor" and "Grantee" shall
include, wherever the context permits or requires, singular or plural, and the heirs, legal
representatives, successors and assigns of the respective parties:
WITNESSETH:
WHEREAS, Grantor owns or controls certain real property situated in
County, as described on Exhibit "A" attached hereto and incorporated herein
by reference (the "Premises');
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated
, 201_ (the "Easement Agreement") which set forth,
among other things, the terms of an easement granted by Grantor to Grantee over and
across the Premises (the "Easement"); and
WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions
of the Easement Agreement of record.
For valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from
Grantor the Easement over and across the Premises.
The term of the Easement, unless sooner terminated under provisions of the
Easement Agreement, shall be perpetual.
All the terms, conditions, provisions and covenants of the Easement Agreement
are incorporated herein by this reference for all purposes as though written out at length
herein, and both the Easement Agreement and this Memorandum of Easement shall be
deemed to constitute a single instrument or document. This Memorandum of Easement
is not intended to amend,
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Contract Number: BF-20237650
modify, supplement, or supersede any of the provisions of the Easement Agreement and,
to the extent there may be any conflict or inconsistency between the Easement
Agreement or this Memorandum of Easement, the Easement Agreement shall control.
Easement - Exhibit B
END OF PAGE — SIGNATURE PAGE FOLLOWS
Form 704CM; Rev. 03/23/2019
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Contract Number: BF-20237650 v
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of o
Easement to as of the date and year first above written. N
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BNSF RAILWAY COMPANY, a Delaware M
corporation
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By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged
20_, by
Delaware corporation.
before me on the day of
(name) as
,(title) of BNSF RAILWAY COMPANY, a
Notary Public
My appointment expires:
(Seal)
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STATE OF
COUNTY OF
3
GRANTEE:
By:
Name:
Title:
This instrument was acknowledged before me on the
, 20_, by
(name) as
(title) of
a
Notary Public
Contract Number: BF-20237650
day of
My appointment expires:
(Seal)
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Contract Number: BF-20237650
EXHIBIT C1
EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File: BF-20237650
Agency Project:
, a/an (hereinafter called "Contractor"), has entered into an agreement (hereinafter called
"Agreement") dated , 20_, with the City of Kent for the performance
of certain work in connection with the following project:
Performance of such work will necessarily require Contractor to enter BNSF RAILWAY
COMPANY (hereinafter called "Railway") right of way and property (hereinafter called
"Railway Property"). The Agreement provides that no work will be commenced within
Railway Property until the Contractor employed in connection with said work for City of
Kent (i) executes and delivers to Railway an Agreement in the form hereof, and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section
3 herein. If this Agreement is executed by a party who is not the Owner, General Partner,
President or Vice President of Contractor, Contractor must furnish evidence to Railway
certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date
of the Agreement, has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
A. Contractor hereby waives, releases, indemnifies, defends and holds harmless
Railway for all judgments, awards, claims, demands, and expenses (including
attorneys' fees), for injury or death to all persons, including Railway's and
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Contractor's officers and employees, and for loss and damage to property
belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or
about Railway's property or right-of-way. This obligation shall not include
such claims, costs, damages, or expenses which may be caused by the
sole negligence of Railway or its contractors, agents or employees;
Provided, that if the claims or damages are caused by or result from the
concurrent negligence or other acts or omissions of (a) Railway, its
contractors, agents or employees and (b) Contractor, its subcontractors,
agents or employees, this provision shall be valid and enforceable only to
the extent of the negligence of the Contractor, its subcontractors, agents or
employees.
B. It is mutually negotiated between the parties that the indemnification
obligation shall include all claims brought by Contractor's employees
against Railway, its agents, servants, employees or otherwise, and
Contractor expressly waives its immunity under the industrial insurance
act (RCW Title 51) and assumes potential liability for all actions brought by
its employees.
C. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR
INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST
RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT,
INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY
APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO
CLAIMED.
D. Contractor further agrees, at its expense, in the name and on behalf of Railway,
that it will adjust and settle all claims made against Railway, and will, at Railway's
discretion, appear and defend any suits or actions of law or in equity brought
against Railway on any claim or cause of action arising or growing out of or in
any manner connected with any liability assumed by Contractor under this
Agreement for which Railway is liable or is alleged to be liable. Railway will give
notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such
claims, and in the event of a suit being brought against Railway, Railway may
forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle
such suits and protect, indemnify, and save harmless Railway from and against
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all damages, judgments, decrees, attorney's fees, costs, and expenses growing
out of or resulting from or incident to any such claims or suits.
E. In addition to any other provision of this Agreement, in the event that all or any
portion of this Article shall be deemed to be inapplicable for any reason, including
without limitation as a result of a decision of an applicable court, legislative
enactment or regulatory order, the parties agree that this Article shall be
interpreted as requiring Contractor to indemnify Railway to the fullest extent
permitted by applicable law.
F. It is mutually understood and agreed that the assumption of liabilities and
indemnification provided for in this Agreement survive any termination of this
Agreement.
2) TERM
A. This Agreement is effective from the date of the Agreement until (i) the
completion of the project set forth herein, and (ii) full and complete payment to
Railway of any and all sums or other amounts owing and due hereunder.
3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
4) SALES AND OTHER TAXES
A. In the event applicable sales taxes of a state or political subdivision of a state of
the United States are levied or assessed in connection with and directly related
to any amounts invoiced by Contractor to Railway ("Sales Taxes"), Railway shall
be responsible for paying only the Sales Taxes that Contractor separately states
on the invoice or other billing documents provided to Railway; provided, however,
that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax
exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor
shall be responsible for all sales, use, excise, consumption, services and other
taxes which may accrue on all services, materials, equipment, supplies or
fixtures that Contractor and its subcontractors use or consume in the
performance of this Agreement, (iii) Contractor shall be responsible for Sales
Taxes (together with any penalties, fines or interest thereon) that Contractor fails
to separately state on the invoice or other billing documents provided to Railway
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or fails to collect at the time of payment by Railway of invoiced amounts (except
where Railway claims a Sales Tax exemption), and (iv) Contractor shall be
responsible for Sales Taxes (together with any penalties, fines or interest
thereon) if Contractor fails to issue separate invoices for each state in which
Contractor delivers goods, provides services or, if applicable, transfers intangible
rights to Railway.
B. Upon request, Contractor shall provide Railway satisfactory evidence that all
taxes (together with any penalties, fines or interest thereon) that Contractor is
responsible to pay under this Agreement have been paid. If a written claim is
made against Contractor for Sales Taxes with respect to which Railway may be
liable for under this Agreement, Contractor shall promptly notify Railway of such
claim and provide Railway copies of all correspondence received from the taxing
authority. Railway shall have the right to contest, protest, or claim a refund, in
Railway's own name, any Sales Taxes paid by Railway to Contractor or for which
Railway might otherwise be responsible for under this Agreement; provided,
however, that if Railway is not permitted by law to contest any such Sales Tax in
its own name, Contractor shall, if requested by Railway at Railway's sole cost
and expense, contest in Contractor's own name the validity, applicability or
amount of such Sales Tax and allow Railway to control and conduct such
contest.
C. Railway retains the right to withhold from payments made under this Agreement
amounts required to be withheld under tax laws of any jurisdiction. If Contractor
is claiming a withholding exemption or a reduction in the withholding rate of any
jurisdiction on any payments under this Agreement, before any payments are
made (and in each succeeding period or year as required by law), Contractor
agrees to furnish to Railway a properly completed exemption form prescribed by
such jurisdiction. Contractor shall be responsible for any taxes, interest or
penalties assessed against Railway with respect to withholding taxes that
Railway does not withhold from payments to Contractor.
5) EXHIBIT "C" CONTRACTOR REQUIREMENTS
A. The Contractor must observe and comply with all provisions, obligations,
requirements and limitations contained in the Agreement, and the Contractor
Requirements set forth on Exhibit "C" attached to the Agreement and this
Agreement, including, but not be limited to, payment of all costs incurred for any
damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting
from use, occupancy, or presence of its employees, representatives, or agents or
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subcontractors on or about the construction site. Contractor shall execute a
Temporary Construction Crossing Agreement or Private Crossing Agreement
(http://www.bnsf.com/communities/fags/permits-real-estate/), for any temporary
crossing requested to aid in the construction of this Project, if approved by BNSF
6) TRAIN DELAY
A. Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and against
all damages arising from any unscheduled delay to a freight or passenger train
which affects Railway's ability to fully utilize its equipment and to meet customer
service and contract obligations. Contractor will be billed, as further provided
below, for the economic losses arising from loss of use of equipment, contractual
loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway
performing work under this Agreement. Railway agrees that it will not perform
any act to unnecessarily cause train delay.
B. For loss of use of equipment, Contractor will be billed the current freight train
hour rate per train as determined from Railway's records. Any disruption to train
traffic may cause delays to multiple trains at the same time for the same period.
C. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain
other grain, intermodal, coal and freight trains operate under incentive/penalty
contracts between Railway and its customer(s). Under these arrangements, if
Railway does not meet its contract service commitments, Railway may suffer loss
of performance or incentive pay and/or be subject to penalty payments.
Contractor is responsible for any train performance and incentive penalties or
other contractual economic losses actually incurred by Railway which are
attributable to a train delay caused by Contractor or its subcontractors.
D. The contractual relationship between Railway and its customers is proprietary
and confidential. In the event of a train delay covered by this Agreement,
Railway will share information relevant to any train delay to the extent consistent
with Railway confidentiality obligations. The rate then in effect at the time of
performance by the Contractor hereunder will be used to calculate the actual
costs of train delay pursuant to this agreement.
E. Contractor and its subcontractors must give Railway's representative
( ) (2) weeks advance notice of the times and dates for
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proposed work windows. Railway and Contractor will establish mutually
agreeable work windows for the project. Railway has the right at any time to
revise or change the work windows due to train operations or service obligations
Railway will not be responsible for any additional costs or expenses resulting
from a change in work windows. Additional costs or expenses resulting from a
change in work windows shall be accounted for in Contractor's expenses for the
project.
F. Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
SIGNATURE PAGE FOLLOWS
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Contract Number: BF-20237650
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer the day and year first above written.
BNSF RAILWAY COMPANY
Signature:
Printed Name:
Title: Manager Public Projects
Date:
Accepted and effective this day of 20
Contact Person:
Address:
City:
State:
Fax:
Phone:
E-mail:
Signature:
Printed Name:
Title:
Date:
Zip:
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EXHIBIT D
Contract Number: BF-20237650
[Insert Cost Estimate(s) for Railroad Work here]
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INDEFINITE TERM LEASE
LAND
THIS INDEFINITE TERM LEASE FOR LAND ("Lease") is made and entered into to be effective as of the
day of ("Effective Date"), by and between BNSF RAILWAY
COMPANY, a Delaware corporation ("Lessor") and , a(n) corporation ("Lessee").
RECITALS
A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks
("Lessor's Track(s)") 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
County of , State of , along Line Segment , Mile
Post and constituting the shaded area shown upon Print No. dated a copy of
which is attached hereto as Exhibit "A" and made a part hereof ("Premises").
B. Lessee leases the Premises from Lessor beginning ("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. Upon termination, either (i) Lessor may retain from prepaid rent, as an additional charge for use
of the Premises, a sum equal to three (3) months Base Rent (as defined below), and any unearned portion of
the annual Base Rent, in excess of such retainage, paid in advance shall be refunded to Lessee or (ii) if Lessor
has not been paid sufficient Base Rent to satisfy the above retainage, then Lessee shall pay Lessor a sufficient
sum so that, together with sums already held by Lessor, Lessor shall hold a sum equal to three (3) months Base
Rent which Lessor shall retain as an additional charge for use of the Premises, and such additional sum shall
be paid by Lessee within thirty (30) days of termination of the Lease.
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, (ii) 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
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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
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 and obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associated
with such compliance. As used herein, the term "Laws" shall mean any and all statutes, laws, ordinances, codes,
rules or 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
($) annually during the term of the Lease, ("Base Rent"). Base Rent shall increase 3% annually during
the term of the Lease. Lessor reserves the right to change rental rates as conditions warrant. Billing or
acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either party from canceling
this Lease as provided herein. Either party hereto may assign any receivables due it under this Lease; provided,
however, such assignments shall not relieve the assignor of any of its rights or obligations under this Lease. All
rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the
following address:
[[OPTIONAL (USE IF MONTHLY, QUARTERLY OR BI-ANNUAL RENTAL)]]
A. Lessee shall pay as rental for the Premises, in advance, an amount equal to
($ ) annually during the term of the Lease, which may be paid in equal [month ly/quarterly/bi-annual]
installments of ($ ) ("Base Rent") each and . Such Base Rent 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:
BNSF Railway Company
PO Box 676160
Dallas TX 75267-6160
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
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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.
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
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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 Lessor'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:
, and to store on the Premises the following Hazardous Materials (as defined in Section
4(F) below): ; provided, however, that Lessee may
only use and store the listed Hazardous Materials in such amounts as are necessary and customary in Lessee's
industry for the permitted uses hereunder ("Permitted Substances"). All such Permitted Substances shall be
placed, used, and stored in strict accordance with all Environmental Laws. 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. 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 used. Lessee understands and agrees that all of the terms and obligations under this
Lease applicable to Lessee shall also 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 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 designated 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, (i) 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, (ii) 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
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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.
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.
A. Lessee represents that the Premises, the Lessee owned fence, building, (or other improvement),
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; (ii) 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, which Lessee may have in
connection with this intended use; and (iii) Lessee has undertaken and has reasonably and diligently 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 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
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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 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 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 the 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.
C. Lessee agrees to reimburse Lessor for all costs and expenses incurred by Lessor in connection
with Lessee's use of the Premises, including but not limited to the furnishing of Lessor's flaggers and any
vehicle rental costs incurred. Lessee shall bear the cost of flagger services and other safety measures
provided by Lessor, when deemed necessary by Lessor's representative. Flagging costs shall include, but not
be limited to the following: pay for at least an eight (8) hour basic day with time and one-half or double time for
overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and
unemployment insurance; public liability and property damage insurance; health and welfare benefits;
transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates.
Flagging rates in effect at the time of performance by the flaggers will be used to calculate the flagging costs.
To arrange flagger services, contact BNSF's Scheduling Agent at wilsoncompany.utility.ic@wilsonco.com or
(816) 556-3624 at least fifteen (15) days in advance of entry and BEFORE YOU DIG, CALL (800) 533-2891
(option 7).
Section 9. Taxes and Utilities.
A. In addition to Base Rent, Lessee shall pay all taxes, utilities, and other charges of every kind and
character, whether foreseen or unforeseen, ordinary or extraordinary, which are attributable to the term of this
Lease and may become due or levied against the Premises, against Lessee, against the business conducted on
the Premises or against the Lessee Improvements placed thereon during the term hereof, even though such
taxes, utilities or other charges may not become due and payable until after termination of this Lease provided;
however, that Lessee shall only be responsible for the payment of property taxes levied against the Premises to
the extent such taxes are separately assessed by the applicable taxing authority as a result of this Lease. Lessee
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agrees that Lessor shall not be required to furnish to Lessee any utility or other services. 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) 8'/2 feet laterally from the centerline of any of Lessor's
Tracks on or about the Premises (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) 24 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 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 less
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 with knowledge of an
unauthorized 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 all 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. 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.
Optional if adding fencing, add Section C below:
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C. Within thirty (30) days of the effective date of the agreement, Lessee shall, at its sole cost and
expense, construct a protective chain link fence minimum of six (6) feet in height along the north and west sides
of the parking area of the Premises as shown by a solid line with X's on Exhibit "A" of this agreement. Lessee
shall thereafter repair, maintain, and renew said fence, so as to keep in good repair at the sole cost to the Lessee.
If fence is not constructed within this time frame, Lessor may construct said fence at the sole cost of Lessee and
Lessee shall pay Lessor all associated costs within 10 days of receipt of bills.
Section 12. Safety; Dangerous and Hazardous Conditions.
A. 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.
B. Prior to entering the Premises, Lessee shall and shall cause its contractor(s) to comply with all of
Lessor's applicable safety rules and regulations. Lessee must ensure that each of its employees, contractors,
agents or invitees entering upon the Premises completes the safety orientation program at the website
"www.BNSFcontractor.com" (the "Safety Orientation") within one (1) year prior to entering upon the
Premises. Additionally, Lessee must ensure that each and every employee of Lessee, its contractors, agents
and invitees possess a card certifying completion of the Safety Orientation prior to entering upon the
Premises. Lessee must renew the Safety Orientation annually.
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;
(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,
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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. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE
LIMITATION IN SECTION 13(A), LESSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS,
REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON STRICT LIABILITY, NEGLIGENCE OR
OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER"
WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL
LAWS. LESSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND
ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LESSEE FURTHER
AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LEASE SHALL NOT IN ANY
WAY SUBJECT LESSOR TO CLAIMS THAT LESSOR IS OTHER THAN A COMMON CARRIER FOR
PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND
HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LESSOR
BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
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
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
In
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.
It is agreed that the provisions of Sections 10, 12, and 13 are for the equal protection of other railroad
companies, 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
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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 obligations and performance of this Lease and agrees to be personally bound by and
upon all of the covenants, agreements, 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 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 Railroad'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 Railroad the insurance shall not be
invalidated by any action or inaction of Lessee or any other person and shall insure the
respective interests of Railroad 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 Railroad as the loss payee as its
interests may appear.
♦ Include a waiver of subrogation in favor of Railroad.
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 but in no event less than the amount otherwise carried by
Lessee. Coverage must be purchased on a post 2004 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:
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• 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.
• Waiver of subrogation in favor of and acceptable to Railroad.
• Additional insured endorsement in favor of and acceptable to Railroad and Jones Lang
LaSalle Brokerage, Inc.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by
Railroad.
It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial
General Liability insurance policy(s) required herein are intended to apply to employees of the policy
holder and shall not apply to Railroad employees.
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:
to
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railroad.
♦ Additional insured endorsement in favor or and acceptable to Railroad.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
D. Workers Compensation and Employers Liability insurance including coverage for, but not limited
♦ 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, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railroad.
E. If construction is to be performed on the Premises by Lessee, Lessee or Lessee's contractor shall
procure Railroad Protective Liability insurance naming only the Railroad 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 Railroad prior to performing any work or services
under this Lease.
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In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket
Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of
coverage are the same as above. The cost is $ -
❑ I elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy.
[[**OPTIONAL: ADD SECTION F. IF PLL IS REQUIRED AND ADD "P" TO THE FORM NAME AT THE BOTTOM OF
THE PAGE**]]
F. Contractor's Pollution Legal Liability (CPL) Insurance. This insurance shall be in an amount of at
least FIVE MILLION DOLLARS ($5,000,000) per occurrence and TEN MILLION DOLLARS ($10,000,000) in the
aggregate including but not limited to coverage for the following:
♦ bodily injury, sickness, disease, mental anguish, or shock sustained by any person, including
death;
♦ property damage including physical injury to or destruction of tangible property including the
resulting loss of use thereof, cleanup costs, and the loss of use of tangible property that has
not been physically injured or destroyed;
♦ defense costs including costs, charges and expenses incurred in the investigation, adjustment
or defense of claims for such compensatory damages.
♦ Coverage shall apply to sudden and non -sudden pollution conditions including the discharge,
dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals,
liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon
land, the atmosphere or any watercourse or body of water, which results in BODILY INJURY,
PROPERTY DAMAGE, or Remediation Expense.
♦ If coverage is purchased on a "claims made" basis, lessee hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation, or termination of
this contract. Annually contractor agrees to provide evidence of such coverage as required
hereunder.
♦ Delete any bodily injury exclusions resulting from lead or asbestos.
♦ Amend the Contractual Liability exclusions and employers' liability exclusion to provide
coverage for liability assumed under contract.
♦ Amend the definition of Property Damage to provide coverage for natural resource damage.
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 the terms of the policy or 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 under Lessee's care, custody,
or control.
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
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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.
Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments.. 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.
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 VI or better, and authorized to do business in the state(s) in which
the Premises is located.
Lessee represents that this Lease has been thoroughly reviewed by Lessee's insurance
agent(s)/broker(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, LLC", "BNSF
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:
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0) 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;
(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.
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, (iii) 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 reletting.
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 Lessee 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
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(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. Holdinq 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.
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.
Section 25. Eminent Domain.
If any part of the Premises is 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 content thereof.
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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.
It is understood and agreed that this Lease shall not be placed of public record.
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.
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 Maieure.
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 written agreement signed by Lessor and Lessee.
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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 (i) 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 (iii) 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:
If to Lessor:
BNSF Railway Company
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2828
Attn: Director Real Estate
With a copy to:
Jones Lang LaSalle Global Services - RR, Inc.
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2828
Attn: Director Leases
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
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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 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.
Executed by the parties to be effective as of the Effective Date above.
LESSOR
BNSF Railway Company
By:
Name:
Title:
LESSEE
By:
Name:
Title:
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EXHIBIT "A"
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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 BNSF 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
the 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:
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
0
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.
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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 workmanship.
12. If any materialman'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.
LESSOR:
BNSF Railway Company
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•
KENT
WASHINGTON
DATE: January 9, 2023
TO: Public Works Committee
PUBLIC WORKS COMMITTEE
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5500
SUBJECT: Meeker Street Bridge Consultant Agreement with TranTech
Engineering, LLC - Authorize
MOTION: I move to approve the Consultant Services Agreement with
TranTech Engineering, LLC, in an amount not to exceed $352,519, for the
Green River Bridge Repaint and Deck Resurfacing Project, and authorize
the Mayor to sign the agreement subject to final terms and conditions
acceptable to the Public Works Director and City Attorney.
SUMMARY: The Meeker Street Bridge, originally constructed in 1958, requires
repainting, deck resurfacing, and related repairs. The City has been authorized to
receive up to $4,484,300 via two Federal grants to plan and execute this work.
Following a request for qualifications and an interview process conducted in October
and November of 2022, TranTech Engineering was selected to provide consultant
services to the City for analysis and design of the projects.
TranTech will develop design plans, specifications, and cost estimates for the bridge
repainting and deck resurfacing work. These services will include structural and
loading analyses, design of paint containment and work platforms for the bridge,
lead paint analysis and remediation design, design of structural steel spot repairs,
and deck pavement design. Once the plans are finalized and the project is
advertised for bids, TranTech will also provide bid support services.
BUDGET IMPACT: This project will be funded by federal grants administered by
WSDOT and managed by City staff.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
ATTACHMENTS:
1. Agreement (PDF)
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Local Agency A&E Professional Services
Negotiated Hourly Rate Consultant Agreemen
Agreement Number:
Firm/Organization Legal Name (do not use dba's):
TranTech Engineering, LLC
Address
Federal Aid Number
365 118th Avenue SE, Suite 100, Bellevue, WA 98005-3557
BHM-1068(004) & BHM-1068(005)
UBI Number
Federal TIN
602507862
68-0607809
Execution Date
Completion Date
12/31 /2024
1099 Form Required
Federal Participation
❑ Yes ❑■ No
■❑ Yes ❑ No
Project Title
Green River Meeker Street Bridge Deck Repair and Repainting
Description of Work
The Consultant shall prepare Plans, Specifications, and Estimate (PS&E) and perform Environmental
Permitting Services for the project. For a description see the Consultant's Scope of Services which is
attached as Exhibit A and incorporated by this reference.
❑ Yes ❑■ No DBE Participation
Maximum Amount Payable:352,519.00
❑ Yes ❑■ No MBE Participation
❑ Yes ❑■ No WBE Participation
❑ Yes ❑■ No SBE Participation
Index of Exhibits
Exhibit A
Scope of Work
Exhibit B
DBE Participation
Exhibit C
Preparation and Delivery of Electronic Engineering and Other Data
Exhibit D
Prime Consultant Cost Computations
Exhibit E
Sub -consultant Cost Computations
Exhibit F
Title VI Assurances
Exhibit G
Certification Documents
Exhibit H
Liability Insurance Increase
Exhibit I
Alleged Consultant Design Error Procedures
Exhibit J
Consultant Claim Procedures
Q
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Negotiated Hourly Rate Consultant Agreement Revised 0713012022 Packet Pg. 72
4.C.a
THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (1) of this
AGREEMENT, between the City of Kent
hereinafter called the "AGENCY," and the "Firm / Organization Name" referenced on page one (1) of this
AGREEMENT, hereinafter called the "CONSULTANT."
WHEREAS, the AGENCY desires to accomplish the work referenced in "Description of Work" on page one (1)
of this AGREEMENT and hereafter called the "SERVICES;" and does not have sufficient staff to meet the
required commitment and therefore deems it advisable and desirable to engage the assistance of a
CONSULTANT to provide the necessary SERVICES; and
WHEREAS, the CONSULTANT represents that they comply with the Washington State Statutes relating to
professional registration, if applicable, and has signified a willingness to furnish consulting services to the
AGENCY.
NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein, or
attached and incorporated and made a part hereof, the parties hereto agree as follows:
I. General Description of Work
The work under this AGREEMENT shall consist of the above -described SERVICES as herein defined, and
necessary to accomplish the completed work for this project. The CONSULTANT shall furnish all services,
labor, and related equipment and, if applicable, sub -consultants and subcontractors necessary to conduct and
complete the SERVICES as designated elsewhere in this AGREEMENT.
II. General Scope of Work
The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit "A"
attached hereto and by this reference made a part of this AGREEMENT. The General Scope of Work was
developed utilizing performance based contracting methodologies.
III. General Requirements M
All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall a
receive advance approval by the AGENCY. Necessary contacts and meetings with agencies, groups, and/or E
individuals shall be coordinated through the AGENCY. The CONSULTANT shall attend coordination, progress, 2
and presentation meetings with the AGENCY and/or such State, Federal, Community, City, or County officials, a
groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULTANT
sufficient notice prior to meetings requiring CONSULTANT participation. The minimum required hours or
days' notice shall be agreed to between the AGENCY and the CONSULTANT and shown in Exhibit "A."
The CONSULTANT shall prepare a monthly progress report, in a form approved by the AGENCY, which will a
outline in written and graphical form the various phases and the order of performance of the SERVICES in
sufficient detail so that the progress of the SERVICES can easily be evaluated.
The CONSULTANT, any sub -consultants, and the AGENCY shall comply with all Federal, State, and local laws,
rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under
this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the
State of Washington.
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4.C.a
Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required,
per 49 CFR Part 26, shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the
commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will
be shown on Exhibit `B" attached hereto and by this reference made part of this AGREEMENT. If the Prime
CONSULTANT is, a DBE certified firm they must comply with the Commercial Useful Function (CUF)
regulation outlined in the AGENCY's "DBE Program Participation Plan" and perform a minimum of 30% of the
total amount of this AGREEMENT. It is recommended, but not required, that non -DBE Prime CONSULTANTS
perform a minimum of 30% of the total amount of this AGREEMENT.
In the absence of a mandatory DBE goal, a voluntary SBE goal amount of ten percent of the Consultant
Agreement is established. The Consultant shall develop a SBE Participation Plan prior to commencing work.
Although the goal is voluntary, the outreach efforts to provide SBE maximum practicable opportunities are not.
The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms (including Prime) involved
with this AGREEMENT into the wsdot.diversitycompliance.com program. Payment information shall
identify any DBE Participation.
All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned.
All electronic files, prepared by the CONSULTANT, must meet the requirements as outlined in Exhibit "C
— Preparation and Delivery of Electronic Engineering and other Data."
All designs, drawings, specifications, documents, and other work products, including all electronic files,
prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of
service for these SERVICES, and are the property of the AGENCY. Reuse by the AGENCY or by others,
acting through or on behalf of the AGENCY of any such instruments of service, not occurring, as a part of this
SERVICE, shall be without liability or legal exposure to the CONSULTANT.
Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the
other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth
below: Y
If to AGENCY: If to CONSULTANT: a
Name: Stephen Lincoln, P.E. Name: Khashayar Nikzad
Agency: City of Kent Agency: TranTech Engineering, LLC Q
Address: 220 4th Avenue S. Address:365 118th Avenue SE, Suite 100
City: Kent State: WA Zip:98032 City: Bellevue State:WA Zip:98005-3557 c
Email: SLincoln@kentwa.gov Email: knikzad@trantecheng.com E
Phone: (253) 856-5552 Phone: (425) 894-8937 i
Facsimile: (253) 856-6500 Facsimile: (425) 453-6779 a
c
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IV. Time for Beginning and Completion
The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing a
by the AGENCY. All work under this AGREEMENT shall conform to the criteria agreed upon detailed in the
AGREEMENT documents. These SERVICES must be completed by the date shown in the heading of this
AGREEMENT titled "Completion Date."
The established completion time shall not be extended because of any delays attributable to the CONSULTANT,
but may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of
unavoidable delays caused by an act of GOD, governmental actions, or other conditions beyond the control of the
CONSULTANT. A prior supplemental AGREEMENT issued by the AGENCY is required to extend the
established completion time.
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4.C.a
V. Payment Provisions
The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this
AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or
SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete
SERVICES. The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov).
A. Hourly Rates: Hourly rates are comprised of the following elements - Direct (Raw) Labor, Indirect Cost Rate,
and Fee (Profit). The CONSULTANT shall be paid by the AGENCY for work done, based upon the
negotiated hourly rates shown in Exhibits "D" and "E" attached hereto and by reference made part of this
AGREEMENT. These negotiated hourly rates will be accepted based on a review of the CONSULTANT's
direct labor rates and indirect cost rate computations and agreed upon fee. The accepted negotiated rates
shall be memorialized in a final written acknowledgment between the parties. Such final written
acknowledgment shall be incorporated into, and become a part of, this AGREEMENT. The initially accepted
negotiated rates shall be applicable from the approval date, as memorialized in a final written
acknowledgment, to 180 days following the CONSULTANT's fiscal year end (FYE) date.
The direct (raw) labor rates and classifications, as shown on Exhibits "D" and "E" shall be subject to
renegotiations for each subsequent twelve (12) month period (180 days following FYE date to 180 days
following FYE date) upon written request of the CONSULTANT or the AGENCY. The written request must
be made to the other party within ninety (90) days following the CONSULTANT's FYE date. If no such
written request is made, the current direct (raw) labor rates and classifications as shown on Exhibits "D" and
"E" will remain in effect for the twelve (12) month period.
Conversely, if a timely request is made in the manner set forth above, the parties will commence negotiations
to determine the new direct (raw) labor rates and classifications that will be applicable for the twelve (12
month period. Any agreed to renegotiated rates shall be memorialized in a final written acknowledgment
between the parties. Such final written acknowledgment shall be incorporated into, and become a part of, this
AGREEMENT. If requested, the CONSULTANT shall provide current payroll register and classifications to
aid in negotiations. If the parties cannot reach an agreement on the direct (raw) labor rates and classifications,
the AGENCY shall perform an audit of the CONSULTANT's books and records to determine the
CONSULTANT's actual costs. The audit findings will establish the direct (raw) labor rates and
classifications that will applicable for the twelve (12) month period.
The fee as identified in Exhibits "D" and "E" shall represent a value to be applied throughout the life of the a
AGREEMENT.
E
as
The CONSULTANT shall submit annually to the AGENCY an updated indirect cost rate within 180 days of
as
a
the close of its fiscal year. An approved updated indirect cost rate shall be included in the current fiscal year
rate under this AGREEMENT, even if/when other components of the hourly rate are not renegotiated. These
rates will be applicable for the twelve (12) month period. At the AGENCY's option, a provisional and/or
conditional indirect cost rate may be negotiated. This provisional or conditional indirect rate shall remain in
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effect until the updated indirect cost rate is completed and approved. Indirect cost rate costs incurred during
a
the provisional or conditional period will not be adjusted. The CONSULTANT may request an extension of
the last approved indirect cost rate for the twelve (12) month period. These requests for provisional indirect
cost rate and/or extension will be considered on a case -by -case basis, and if granted, will be memorialized in
a final written acknowledgment.
The CONSULTANT shall maintain and have accessible support data for verification of the components of
the hourly rates, i.e., direct (raw) labor, indirect cost rate, and fee (profit) percentage. The
CONSULTANT shall bill each employee's actual classification, and actual salary plus indirect cost rate plus
fee.
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4.C.a
A. Direct Non -Salary Costs: Direct Non -Salary Costs will be reimbursed at the actual cost to the
CONSULTANT. These charges may include, but are not limited to, the following items: travel, printing, long
distance telephone, supplies, computer charges, and fees of sub -consultants. Air or train travel will be
reimbursed only to lowest price available, unless otherwise approved by the AGENCY. The CONSULTANT
shall comply with the rules and regulations regarding travel costs (excluding air, train, and rental car costs) in
accordance with the WSDOT's Accounting Manual M 13-82, Chapter 10 — Travel Rules and Procedures, and
all revisions thereto. Air, train, and rental card costs shall be reimbursed in accordance with 48 Code of
Federal Regulations (CFR) Part 31.205-46 "Travel Costs." The billing for Direct Non -salary Costs shall
include an itemized listing of the charges directly identifiable with these SERVICES. The CONSULTANT
shall maintain the original supporting documents in their office. Copies of the original supporting documents
shall be supplied to the STATE upon request. All above charges must be necessary for the SERVICES
provided under this AGREEMENT.
B. Maximum Amount Payable: The Maximum Amount Payable by the AGENCY to the CONSULTANT under
this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT on page one c
(I.) The Maximum Amount Payable does not include payment for extra work as stipulated in section XIII, E
"Extra Work." No minimum amount payable is guaranteed under this AGREEMENT. 0
C. Monthly Progress Payments: Progress payments may be claimed on a monthly basis for all costs authorized
in A and B above. Detailed statements shall support the monthly billings for hours expended at the rates
established in Exhibit "D," including names and classifications of all employees, and billings for all direct
non -salary expenses. To provide a means of verifying the billed salary costs for the CONSULTANT's
employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the
names, titles, salary rates, and present duties of those employees performing work on the SERVICES at the
time of the interview.
D. Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be al
made promptly upon its verification by the AGENCY after the completion of the SERVICES under this C'n
AGREEMENT, contingent upon receipt of all PS&E, plans, maps, notes, reports, electronic data, and other Y
related documents, which are required to be furnished under this AGREEMENT. Acceptance of such Final
Payment by the CONSULTANT shall constitute a release of all claims for payment, which the
CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and S
transmitted to the AGENCY by the CONSULTANT prior to its acceptance. Said Final Payment shall not,
however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies
the AGENCY may pursue with respect to such claims. E
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The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time a,
of final audit all required adjustments will be made and reflected in a final payment. In the event that such a
final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such
overpayment to the AGENCY within thirty (30) calendar days of notice of the overpayment. Such refund E
shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of a finding by the
AGENCY of overpayment. Per WSDOT's "Audit Guide for Consultants," Chapter 23 "Resolution a
Procedures," the CONSULTANT has twenty (20) working days after receipt of the final Post Audit to begin
the appeal process to the AGENCY for audit findings
E. inspection of Cost Records: The CONSULTANT and their sub -consultants shall keep available for
inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt
of final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or
bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in
connection with, or related to this AGREEMENT is initiated before the expiration of the six (6) year period,
the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is
completed. An interim or post audit may be performed on this AGREEMENT. The audit, if any, will be
performed by the State Auditor, WSDOT's Internal Audit Office and /or at the request of the AGENCY's
Project Manager. LA10339 & LA10341
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4.C.a
VI. Sub -Contracting
The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit "A" attached hereto and
by this reference made part of this AGREEMENT.
The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT
without prior written permission of the AGENCY. No permission for subcontracting shall create, between the
AGENCY and sub -consultant, any contract or any other relationship.
Compensation for this sub -consultant SERVICES shall be based on the cost factors shown on Exhibit "E"
attached hereto and by this reference made part of this AGREEMENT.
The SERVICES of the sub -consultant shall not exceed its maximum amount payable identified in each sub
consultant cost estimate unless a prior written approval has been issued by the AGENCY.
All reimbursable direct labor, indirect cost rate, direct non -salary costs and fee costs for the sub -consultant shall
be negotiated and substantiated in accordance with section V "Payment Provisions" herein and shall be
memorialized in a final written acknowledgment between the parties
All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall
require each sub -consultant or subcontractor, of any tier, to abide by the terms and conditions of this
AGREEMENT. With respect to sub -consultant payment, the CONSULTANT shall comply with all applicable
sections of the STATE's Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011.
The CONSULTANT, sub -recipient, or sub -consultant shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this AGREEMENT. The CONSULTANT shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the
CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may result in
the termination of this AGREEMENT or such other remedy as the recipient deems appropriate.
VII. Employment and Organizational Conflict of Interest
The CONSULTANT warrants that they have not employed or retained any company or person, other than a
bona fide employee working solely for the CONSULTANT, to solicit or secure this contract, and that it has not M
paid or agreed to pay any company or person, other than a bona fide employee working solely for the
CONSULTANT, any fee, commission, percentage, brokerage fee, gift, or any other consideration, a
contingent upon or resulting from the award or making of this agreement. For breach or violation of E
this warrant, the AGENCY shall have the right to annul this AGREEMENT without liability or, in its a,
discretion, to deduct from this AGREEMENT price or consideration or otherwise recover the full amount a
of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
Any and all employees of the CONSULTANT or other persons while engaged in the performance of any work or
services required of the CONSULTANT under this AGREEMENT, shall be considered employees of the
CONSULTANT only and not of the AGENCY, and any and all claims that may arise under any Workmen's a
Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made
by a third party as a consequence of any act or omission on the part of the CONSULTANT's employees or other
persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole
obligation and responsibility of the CONSULTANT.
The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of this
AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of
this AGREEMENT, in the employ of the United States Department of Transportation or the AGENCY, except
regularly retired employees, without written consent of the public employer of such person if he/she will be
working on this AGREEMENT for the CONSULTANT.
Agreement Number:
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4.C.a
VIII. Nondiscrimination
During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, sub -consultants,
subcontractors and successors in interest, agrees to comply with the following laws and regulations:
• Title VI of the Civil Rights Act of 1964
(42 U.S.C. Chapter 21 Subchapter V §
2000d through 2000d-4a)
• Federal -aid Highway Act of 1973 (23
U.S.C. Chapter 3 § 324)
• Rehabilitation Act of 1973
(29 U.S.C. Chapter 16 Subchapter V §
794)
• Age Discrimination Act of 1975 (42
U.S.C. Chapter 76 § 6101 et. seq.)
• Civil Rights Restoration Act of 1987 (Public Law
100-259)
• American with Disabilities Act of 1990 (42
U.S.C. Chapter 126 § 12101 et. seq.)
• 23 CFR Part 200
• 49 CFR Part 21
• 49 CFR Part 26
• RCW 49.60.180
In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit
"F" attached hereto and by this reference made part of this AGREEMENT, and shall include the attached
Exhibit "F" in every sub -contract, including procurement of materials and leases of equipment, unless exempt
by the Regulations or directives issued pursuant thereto.
IX. Termination of Agreement
The right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon
ten (10) days written notice to the CONSULTANT.
In the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the
CONSULTANT, a final payment shall be made to the CONSULTANT for actual hours charged at the time of
termination of this AGREEMENT, plus any direct non -salary costs incurred up to the time of termination of this
AGREEMENT.
No payment shall be made for any SERVICES completed after ten (10) days following receipt by the
CONSULTANT of the notice to terminate. If the accumulated payment made to the CONSULTANT prior to
Notice of Termination exceeds the total amount that would be due when computed as set forth in paragraph two
(2) of this section, then no final payment shall be due and the CONSULTANT shall immediately reimburse the
AGENCY for any excess paid.
If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the
CONSULTANT, the above formula for payment shall not apply.
In the event of a termination for default, the amount to be paid to the CONSULTANT shall be determined by the
AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing
SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily
completed to date of termination, whether that SERVICE is in a form or a type which is usable to the AGENCY
at the time of termination, the cost to the AGENCY of employing another firm to complete the SERVICES
required and the time which may be required to do so, and other factors which affect the value to the AGENCY
of the SERVICES performed at the time of termination. Under no circumstances shall payment made under this
subsection exceed the amount, which would have been made using the formula set forth in paragraph two (2) of
this section.
If it is determined for any reason, that the CONSULTANT was not in default or that the CONSULTANT's failure
to perform is without the CONSULTANT's or its employee's fault or negligence, the termination shall be
deemed to be a termination for the convenience of the AGENCY. In such an event, the CONSULTANT would be
reimbursed for actual costs in accordance with the termination for other than default clauses listed previously.
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a
4.C.a
The CONSULTANT shall, within 15 days, notify the AGENCY in writing, in the event of the death of any
member, partner, or officer of the CONSULTANT or the death or change of any of the CONSULTANT's
supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved
CONSULTANT employee.
The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50% or
more of the beneficial ownership of the CONSULTANT within 15 days of such sale or transfer occurring. The
CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this
AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to
renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be
made to the CONSULTANT as set forth in the second and third paragraphs of this section.
Payment for any part of the SERVICES by the AGENCY shall not constitute a waiver by the AGENCY of any
remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the
CONSULTANT, or for failure of the CONSULTANT to perform SERVICES required of it by the AGENCY.
Forbearance of any rights under the AGREEMENT will not constitute waiver of entitlement to exercise those
rights with respect to any future act or omission by the CONSULTANT.
X. Changes of Work
The CONSULTANT shall make such changes and revisions in the completed work of this AGREEMENT as
necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY
find it desirable for its own purposes to have previously satisfactorily completed SERVICES or parts thereof
changed or revised, the CONSULTANT shall make such revisions as directed by the AGENCY. This work shall
be considered as Extra Work and will be paid for as herein provided under section XIII "Extra Work."
XI. Disputes
Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within
L
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10 days to the Director of Public Works or AGENCY Engineer, whose decision in the matter shall be final and
binding on the parties of this AGREEMENT; provided however, that if an action is brought challenging the
Director of Public Works or AGENCY Engineer's decision, that decision shall be subject to judicial review. If
v
the parties to this AGREEMENT mutually agree, disputes concerning alleged design errors will be conducted
under the procedures found in Exhibit "J". In the event that either party deem it necessary to institute legal
action or proceeding to enforce any right or obligation under this AGREEMENT, this action shall be initiated in
E
the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. The
parties hereto agree that all questions shall be resolved by application of Washington law and that the parties
a
have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of
Washington. The CONSULTANT hereby consents to the personal jurisdiction of the Superior Court of the State E
of Washington, situated in the county in which the AGENCY is located.
XII. Legal Relations a
The CONSULTANT, any sub -consultants, and the AGENCY shall comply with all Federal, State, and local
laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed
under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws
of the State of Washington.
The CONSULTANT shall defend, indemnify, and hold the State of Washington (STATE) and the AGENCY
and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or
in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the
CONSULTANT or the CONSULTANT's agents, employees, sub consultants, subcontractors or vendors, of any
tier, or any other persons for whom the CONSULTANT may be legally liable; provided that nothing herein shall
require a CONSULTANT
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4.C.a
to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold
harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based
solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the
AGENCY, their agents, officers, employees, sub -consultants, subcontractors or vendors, of any tie , or any other
persons for whom the STATE and /or the AGENCY may be legally liable; and provided further that if the claims
or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT or the
CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other
persons for whom the CONSULTANT is legally liable, and (b) the STATE and/or AGENCY, their agents,
officers, employees, sub -consultants, subcontractors and or vendors, of any tier, or any other persons for whom
the STATE and/or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and
enforceable only to the extent of the CONSULTANT's negligence or the negligence of the CONSULTANT's
agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the
CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between
CONSULTANT and any sub -consultant, subcontractor and vendor, of any tier.
The CONSULTANT shall also defend, indemnify, and hold the STATE and the AGENCY and their officers
and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the
alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets,
patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the
CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other
persons for whom the CONSULTANT may be legally liable, in performance of the Work under this
AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs,
information or other items furnished or communicated to STATE and/or the AGENCY, their agents, officers and
employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or
copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary
information, know-how, copyright rights or inventions resulting from STATE and/or AGENCY's, their agents',
officers and employees' failure to comply with specific written instructions regarding use provided to STATE
and/or AGENCY, their agents, officers and employees by the CONSULTANT, its agents, employees, sub -
consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be
legally liable.
The CONSULTANT's relation to the AGENCY shall be at all times as an independent contractor.
Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its
sole discretion, by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due E
notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter ai
42.52 RCW; or any similar statute involving the CONSULTANT in the procurement of, or performance under, a
this AGREEMENT. c
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The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT's own E
employees or its agents against the STATE and/or the AGENCY and, solely for the purpose of this 2
indemnification and defense, the CONSULTANT specifically waives any immunity under the state industrial a
insurance law, Title 51 RCW. The Parties have mutually negotiated this waiver.
Unless otherwise specified in this AGREEMENT, the AGENCY shall be responsible for administration of
construction contracts, if any, on the project. Subject to the processing of a new sole source, or an acceptable
supplemental AGREEMENT, the CONSULTANT shall provide On -Call assistance to the AGENCY during
contract administration. By providing such assistance, the CONSULTANT shall assume no responsibility for
proper construction techniques, job site safety, or any construction contractor's failure to perform its work in
accordance with the contract documents.
The CONSULTANT shall obtain and keep in force during the terms of this AGREEMENT, or as otherwise
required, the following insurance with companies or through sources approved by the State Insurance
Commissioner pursuant to Title 48 RCW.
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4.C.a
Insurance Coverage
A. Worker's compensation and employer's liability insurance as required by the STATE.
B. Commercial general liability insurance written under ISO Form CG 00 01 12 04 or its equivalent with
minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars
($2,000,000.00) in the aggregate for each policy period.
C. Business auto liability insurance written under ISO Form CG 00 01 10 01 or equivalent providing coverage
for any "Auto" (Symbol 1) used in an amount not less than a one million dollar ($1,000,000.00) combined
single limit for each occurrence.
Excepting the Worker's Compensation Insurance and any Professional Liability Insurance, the STATE and
AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub -
consultant and/or subcontractor as an additional insured (the "AIs"), with no restrictions or limitations
concerning products and completed operations coverage. This coverage shall be primary coverage and non-
contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the
additional insured coverage required hereunder. The CONSULTANT's and the sub -consultant's and/or
subcontractor's insurer shall waive any and all rights of subrogation against the AIs. The CONSULTANT shall
furnish the AGENCY with verification of insurance and endorsements required by this AGREEMENT. The
AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time.
All insurance shall be obtained from an insurance company authorized to do business in the State of c
Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) ci
days of the execution of this AGREEMENT to:
Name: Stephen Lincoln, P.E. L
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Agency: City of Kent
Address: 220 4th Avenue S.
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City: Kent State: WA Zip: 98032
Email: SLincoln@kentwa.gov
Phone: (253) 856-5552 M
Facsimile: (253) 856-6500
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No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the 4)
AGENCY. a,
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The CONSULTANT's professional liability to the AGENCY, including that which may arise in reference to
section IX "Termination of Agreement" of this AGREEMENT, shall be limited to the accumulative amount of
the authorized AGREEMENT or one million dollars ($1,000,000.00), whichever is greater, unless the limit of 0
liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional
liability to third parties be limited in any way. a
The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third
parry, and no third party beneficiary is intended or created by the execution of this AGREEMENT.
The AGENCY will pay no progress payments under section V "Payment Provisions" until the CONSULTANT
has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action
as is available to it under other provisions of this AGREEMENT, or otherwise in law.
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4.C.a
XIII. Extra Work
A. The AGENCY may at any time, by written order, make changes within the general scope of this
AGREEMENT in the SERVICES to be performed.
B. If any such change causes an increase or decrease in the estimated cost of, or the time required for,
performance of any part of the SERVICES under this AGREEMENT, whether or not changed by the order,
or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an
equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and
(3) other affected terms and shall modify this AGREEMENT accordingly.
C. The CONSULTANT must submit any "request for equitable adjustment," hereafter referred to as "CLAIM,"
under this clause within thirty (30) days from the date of receipt of the written order. However, if the
AGENCY decides that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted
before final payment of this AGREEMENT.
D. Failure to agree to any adjustment shall be a dispute under the section XI "Disputes" clause. However,
nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed.
E. Notwithstanding the terms and conditions of paragraphs (A.) and (B.) above, the maximum amount payable
for this AGREEMENT, shall not be increased or considered to be increased except by specific written
supplement to this AGREEMENT.
XIV. Endorsement of Plans
If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering
data furnished by them.
XV. Federal Review
The Federal Highway Administration shall have the right to participate in the review or examination of the
SERVICES in progress.
XVI. Certification of the Consultant and the Agency
Attached hereto as Exhibit "G-1(a and b)" are the Certifications of the CONSULTANT and the AGENCY,
Exhibit "G-2" Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary
Covered Transactions, Exhibit "G-3" Certification Regarding the Restrictions of the Use of Federal Funds for
Lobbying and Exhibit "G-4" Certificate of Current Cost or Pricing Data. Exhibit "G-3" is required only
in AGREEMENTS over one hundred thousand dollars ($100,000.00) and Exhibit "G-4" is required only
in AGREEMENTS over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by
the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the
address listed in section III "General Requirements" prior to its performance of any SERVICES
under this AGREEMENT.
XVII. Complete Agreement
This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by
the parties. No agent, or representative of either party has authority to make, and the parties shall not be bound
by or be liable for, any statement, representation, promise or agreement not set forth herein. No changes,
amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the
parties as a supplement to this AGREEMENT.
XVIII. Execution and Acceptance
This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to
be an original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements,
representations, warranties, covenants, and AGREEMENT's contained in the proposal, and the supporting
material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the
terms and conditions thereof.
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4.C.a
XIX. Protection of Confidential Information
The CONSULTANT acknowledges that some of the material and information that may come into its possession
or knowledge in connection with this AGREEMENT or its performance may consist of information that is
exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other
local, state, or federal statutes ("State's Confidential Information"). The "State's Confidential Information"
includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers,
financial profiles credit card information, driver's license numbers, medical data, law enforcement records (or
any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE
and AGENCY security data, non-public Specifications, STATE and AGENCY non -publicly available data,
proprietary software, STATE and AGENCY security data, or information which may jeopardize any part of the
project that relates to any of these types of information. The CONSULTANT agrees to hold the State's
Confidential Information in strictest confidence and not to make use of the State's Confidential Information for
any purpose other than the performance of this AGREEMENT, to release it only to authorized employees, sub -
consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT,
and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party
without the AGENCY's express written consent or as provided by law. The CONSULTANT agrees to release
such information or material only to employees, sub -consultants or subcontractors who have signed a
nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The
CONSULTANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized
access to the State's Confidential Information.
Immediately upon expiration or termination of this AGREEMENT, the CONSULTANT shall, at the
AGENCY's option: (i) certify to the AGENCY that the CONSULTANT has destroyed all of the State's
Confidential Information; or (ii) returned all of the State's Confidential Information to the AGENCY; or (iii)
take whatever other steps the AGENCY requires of the CONSULTANT to protect the State's Confidential
Information.
As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following:
the State's Confidential Information received in the performance of this AGREEMENT; the purpose(s) for
which the State's Confidential Information was received; who received, maintained, and used the State's
Confidential Information; and the final disposition of the State's Confidential Information. The
CONSULTANT's records shall be subject to inspection, review, or audit upon reasonable notice from the
AGENCY.
The AGENCY reserves the right to monitor, audit, or investigate the use of the State's Confidential Information
collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or
investigating may include, but is not limited to, salting databases.
Violation of this section by the CONSULTANT or its sub -consultants or subcontractors may result in
termination of this AGREEMENT and demand for return of all State's Confidential Information, monetary
damages, or penalties
It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information, which
is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the
confidentiality of such information during the term of this AGREEMENT and afterwards. All materials
containing such proprietary and/or confidential information shall be clearly identified and marked as
"Confidential" and shall be returned to the disclosing party at the conclusion of the SERVICES under this
AGREEMENT.
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4.C.a
The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers
confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT, or (b) as
soon as such confidential or proprietary material is developed. "Proprietary and/or confidential information" is
not meant to include any information which, at the time of its disclosure: (i) is already known to the other party;
(ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for
the other party; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is
generally utilized by unaffiliated third parties engaged in the same business or businesses as the
CONSULTANT.
The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure
laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and
or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a
public disclosure request is made to view materials identified as "Proprietary and/or confidential information" or
otherwise exempt information, the AGENCY will notify the CONSULTANT of the request and of the date that
such records will be released to the requester unless the CONSULTANT obtains a court order from a court of
competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining
disclosure, the AGENCY will release the requested information on the date specified.
The CONSULTANT agrees to notify the sub -consultant of any AGENCY communication regarding disclosure
that may include a sub -consultant's proprietary and/or confidential information. The CONSULTANT
notification to the sub -consultant will include the date that such records will be released by the AGENCY to the
requester and state that unless the sub -consultant obtains a court order from a court of competent jurisdiction
enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or
sub -consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date, the
CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of
actual or alleged damages, liabilities, or costs associated with the AGENCY's said disclosure of sub -
consultants' information.
XX. Records Maintenance
During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6)
years from the date of final payment to the CONSULTANT, the CONSULTANT shall keep, retain, and
maintain all "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all
"documents" pertaining to the SERVICES provided hereunder shall be made available for review at the
CONSULTANT's place of business during normal working hours. If any litigation, claim, or audit is
commenced, the CONSULTANT shall cooperate with AGENCY and assist in the production of all such
documents. "Documents" shall be retained until all litigation, claims or audit findings have been resolved even
though such litigation, claim, or audit continues past the six (6) year retention period.
For purposes of this AGREEMENT, "documents" means every writing or record of every type and description,
including electronically stored information ("ESI"), that is in the possession, control, or custody of the
CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENTS,
appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes,
reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets,
charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, tabulations,
computations, summaries, inventories, and writings regarding conferences, conversations or telephone
conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description;
every copy of the foregoing whether or not the original is in the possession, custody, or control of the
CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an
original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on
the original.
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4.C.a
For purposes of this AGREEMENT, "ESI" means any and all computer data or electronic recorded media of any
kind, including "Native Files", that are stored in any medium from which it can be retrieved and examined,
either directly or after translation into a reasonably useable form. ESI may include information and/or
documentation stored in various software programs such as Email, Outlook, Word, Excel, Access, Publisher,
PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or
databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network
servers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones,
laptops, or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES
hereunder, including any personal devices used by the CONSULTANT or any sub -consultant at home.
"Native files" are a subset of ESI and refer to the electronic format of the application in which such ESI is
normally created, viewed, and /or modified
The CONSULTANT shall include this section XX "Records Maintenance" in every subcontract it enters into in
relation to this AGREEMENT and bind the sub -consultant to its terms, unless expressly agreed to otherwise in
writing by the AGENCY prior to the execution of such subcontract.
In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the
"Execution Date" box on page one (1) of this AGREEMENT.
Signature TranTech Engineering, LLC
I
Signature City of Kent Date
Dana Ralph, Mayor
Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office
of the Attorney General.
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4.C.a
Exhibit A
Scope of Worl
Project No. BHM-1068(004) & BHM-1068(00.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
4.C.a
EXHIBIT A
CITY OF KENT
Green River Bridge Repainting and Structural Deck Overlay
SCOPE OF WORK
Project Background:
The existing Green River Bridge is a steel truss, two-lane, 245-foot bridge constructed in 1958.
The facility is critical transportation infrastructure for the City of Kent, connecting SR 167 to Kent
Des Moines Road and ultimately to 1-5. The bridge deck has deteriorated and shows potholes and
delamination at multiple locations. The bridge was last painted over 30 years ago, and it is
showing paint failure throughout the structure and, in some places, pack rust and minor section
loss. The bridge has a high vehicular volume, it averaging 25,000 vehicles per day per the most
recent inspection report. With projected growth in the area, that number is expected to swell to
35,000 by 2038. The City of Kent has applied for federal funding and has been successful in
securing grants to repair and repaint the Green River Bridge to support its intended life
expectancy.
Project Objectives:
City of Kent (AGENCY) has tasked the TranTech Engineering, LLC team (CONSULTANT) to prepare
Plans, Specifications, and Estimate (PS&E) and perform Environmental Permitting Services for the
Green River Bridge Repainting and Structural Deck Overlay (PROJECT).
In addition, the AGENCY reserves the right to retain the services of the CONSULTANT and its team
for the PROJECT's construction phase engineering services inclusive of construction inspection
and management, if desired.
All work performed by the CONSULTANT's team shall be per the WSDOT and AASHTO guidelines
for federally funded projects.
The following work elements present a summary of the services associated with the PROJECT
Scope Summary:
1. Project Management
2. Environmental Permitting
3. Traffic Engineering
4. Civil/ Roadway/ Drainage Design
5. Load Rating Analysis and Reports
6. Structural Design
7. Assistance During Bid Period
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4.C.a
City of Kent - Green River Bridge Repainting and Structural Deck Overlay
General Assumptions:
The following items are assumed to be provided to the CONSULTANT by the AGENCY or
prepared by AGENCY staff:
1. All available existing as -built plans, right-of-way plans, horizontal and vertical monument
information, GIS maps, and other mapping information as available.
2. The AGENCY shall secure all necessary right -of -entry from adjacent property owners
where requested by the CONSULTANT.
3. All relevant recent project area survey/topographic data collected by the AGENCY or
provided to the AGENCY by third parties will be provided in AutoCAD 2020 format with
supporting survey field notes as available.
Project Standards:
Reports and plans, to the extent feasible, shall be developed in accordance with the latest edition
and amendments of the following guidelines and documents:
• AASHTO LRFD Bridge Design Specifications — Ninth Edition
• AASHTO 2018, "A Policy of Geometric Design of Highways and Streets", 7th Edition
• Washington State Department of Transportation, "Bridge Design Manual"
• Washington State Department of Transportation, "Design Manual"
• Washington State Department of Transportation, "Highway Runoff Manual"
• Washington State Department of Transportation, "Materials Laboratory Outline"
• Washington State Department of Transportation, "Construction Manual"
• Washington State Department of Transportation, "Local Agency Guidelines"
• Washington State Department of Transportation, "Standard Specifications for Road and 06
Bridge Construction" c
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• Highway Research Board's Manual entitled "Highway Capacity" E
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• United State Department of Transportation and Federal Highway Administration (FHWA)
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"Manual on Uniform Traffic Control Devices for Streets and Highways" Q
• Agency, "Public Works Development Guidelines and Improvements Standards"
• Agency "CAD Standards" E
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Project Team: Q
The project team is composed of the following:
A. Owner: City of Kent (AGENCY)
B. Owner Point -of -Contact (POQ Stephen Lincoln, PE
C. Prime Consultant — TranTech Engineering, LLC (CONSULTANT) (POC: Kash Nikzad)
D. Subconsultant — Landau Associates, Inc. (LAI) (POC: Steve Quarterman)
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4.C.a
City of Kent - Green River Bridge Repainting and Structural Deck Overlay
WORK ELEMENT 1 PROJECT MANAGEMENT
This work element includes administration of the contract between the CONSULTANT and the
AGENCY. The Task includes administrative services needed to coordinate with the sub-
consultant/s and to complete the PROJECT on time and within budget. The following are the
activities associated with this work element:
1.1 Monthly Progress Reports and Invoicing
Progress reports will contain a narrative that identifies and describes significant activities
performed in the previous month and the significant planned activities for the upcoming month.
1.2 Project Kick-off Meeting and Progress Meetings
After receiving notice to proceed from the AGENCY, the CONSULTANT will conduct a project team
kick-off meeting with staff expected to be involved in the project and key AGENCY staff. The
meeting will be used to discuss key elements of the Scope of Work, the project schedule,
document control, and QA/QC procedures; and to clearly define the roles and responsibilities of
the project team members.
This work element provides for the preparation, attendance, follow-up, and documentation of
meetings during the length of the project. These meetings will be the forums to provide input
and guidance for the direction of the project. They will also be used to discuss project issues,
approve submittals, and develop potential solutions.
The CONSULTANT shall attend up to twelve (12) meetings with AGENCY staff.
1.3 Design Team Management
Tasks associated with management of the design team:
• General team coordination
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• Preparing sub -consultant agreements E
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• Preparing, monitoring, and updating PROJECT schedule
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• Monitoring the PROJECT budget and task progress
• Preparing and maintaining a project Risk Matrix E
• Maintaining regular informal contact telephone discussions and electronic mail
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• Obtain, with assistance from the AGENCY, rights of entry necessary for geotechnical Q
studies, etc.
rlpimorn hoc-
• Progress Reports
• Monthly Invoicing
• Project Schedule w/updates
• Risk Matrix
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4.C.a
City of Kent - Green River Bridge Repainting and Structural Deck Overlay
WORK ELEMENT 2 ENVIRONMENTAL PERMITTING AND WETLAND DELINEATION
This Work Element will be performed by Landau Associates, Inc. (LAI) to provide wetland /
waterway delineation and environmental permitting support for the PROJECT.
2.1 Wetland/Waterway Delineation
LAI will conduct wetland delineations in accordance with the US Army Corps of Engineers
(USACE) 1987 Wetlands Delineation Manual and the 2010 USACE Regional Supplement to the
Wetland Delineation Manual. The ordinary high-water mark (OHWM) of waterways will be
delineated using guidance provided in Washington State Department of Ecology's (Ecology's)
Determining the Ordinary High -Water Mark on Streams in Washington State.
LAI will compile and review environmental information from readily available public domain
resources to gain a general understanding of potential wetlands at the site. Public domain
resources include, but are not limited to:
• Natural Resources Conservation Service Soil Survey data
• National Wetlands Inventory mapping
• Local Critical Areas mapping
• US Geological Survey topographic mapping
• Recent aerial photography.
The field investigation will include an examination of vegetation, soils, and hydrology within c
the project area. Flagging will be placed along the wetland/waterway boundaries and will be Q
confined to the project area. Any wetland/waterway habitat that extends beyond the project
area, and within 275 feet (ft) (referred to as "the study area"), will be estimated both visually
and using public domain resources to assess extent. We will document the flag locations using E
global positioning system (GPS) equipment capable of sub -meter accuracy. ;v
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Wetlands within the study area will be rated in accordance with Ecology's Washington State
Wetland Rating System for Western Washington, and buffer widths will be determined in E
compliance with applicable Critical Areas regulations. Stream typing and buffer widths will be
based on Chapter 11.06 of the Kent City Code (KCC), and the water -typing system Q
promulgated in Washington Administrative Code (WAC) 222-15-131.
LAI will prepare a draft Wetland and Waterway Delineation Technical Memorandum for the
project with the information obtained from field delineation and ratings. The memorandum,
which will be submitted to the AGENCY for shoreline critical areas compliance and to other
regulatory agencies, will include:
• A summary of the methodology used
• The size and rating of each wetland and waterway; a characterization of wetland
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
4.C.a
vegetation, soils, and hydrology; and field data sheets
• A scaled site map showing the locations of wetland/waterway boundaries and buffers,
locations of wetland data plots, and site topography
• Supporting photographs
• A summary of regulatory jurisdiction and applicable exemptions.
The draft memorandum will be provided to the AGENCY for review. Comments will be
reviewed and incorporated, as appropriate, into a final Wetland and Waterway Delineation
Technical Memorandum.
Assumptions:
• The AGENCY will provide site access and permissions, which will include clearing the site
of homeless encampments as needed to provide safe access to the project area.
• Wetland/waterway boundary flagging will be placed only in accessible parts of the project
area.
o Tree cover and/or topography onsite will not provide an obstruction to the GPS
signal. If GPS connectivity is not available, LAI will request an amendment to
this scope and budget for surveying the wetland flag locations.
Deliverables
• An electronic (Adobe PDF) copy of the draft and final Wetland and Waterway Delineation
Technical Memorandum.
2.2 WSDOT Local Program National Environmental Policy Act Categorical Exclusion Form
LAI will prepare a preliminary version of the WSDOT Local Programs NEPA Categorical
Exclusion (CE) Form (formerly the Local Agency Environmental Classification Summary). The
purpose of the preliminary NEPA CE form is to facilitate discussion with WSDOT Local
Programs to determine subsequent NEPA compliance needs.
To complete the preliminary version of the CE form, LAI will compile and review
environmental information from readily available public domain resources to gain a general
understanding of relevant environmental resources along the project corridor.
As part of this task, LAI will identify the Area of Potential Effects (APE) in accordance with 36
Code of Federal Regulations (CFR) 800.16(d) and coordinate, through the AGENCY, with the
WSDOT Local Program Engineer and WSDOT archeologist on the APE and Section 106
National Historic Preservation Act exemption.
A final version of the NEPA CE Form will be prepared following completion of preliminary
design plans.
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4.C.a
City of Kent - Green River Bridge Repainting and Structural Deck Overlay
Assumptions:
• Costs for professional archaeological investigation and/or historic property inventory
are not included in this scope of services.
• The project will qualify for a SEPA exemption. This scope of services does not include
preparation of a SEPA Checklist or Environmental Impact Statement.
• The proposed project will receive funding from the Federal Highway Administration
(FHWA) administered through WSDOT Highways and Local Programs and will satisfy
the criteria as a NEPA Categorical Exclusion.
• The project will have a no effect determination on listed species and/or their
designated critical habitat and a formal Biological Opinion will not be required. The
project will have no adverse impact to EFH. The No Effect determination will be
presented in the NEPA CE form. Preparation of a technical memorandum
documenting determination of No Effect will not be required and is not included in
this scope of services.
Deliverables:
• An electronic (MS Word) copy of the preliminary and final NEPA CE forms.
• An electronic (MS Word) copy of the draft and final APES.
2.3 Agency Preapplication Meetings
LAI will participate in up to two pre -application meetings and three conference calls, as
needed, with the AGENCY, WSDOT Local Programs, Washington Department of Fish & Wildlife
(WDFW), USACE, and the US Coast Guard (USCG) to coordinate jurisdictional limits and permit
conditions for the project.
This task includes participation in at least two onsite meetings, three conference calls, and M
associated correspondence to support preapplication inquiries.
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Deliverables:
L
• Meeting summaries in email format.
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2.4 Hazardous Materials Good -Faith Field Survey E
LAI will provide a good -faith survey (GFS) focused on those painted steel surfaces on the .2
Green River Bridge that will be repainted as a portion of the structural rehabilitation efforts Q
(Project Area). More specifically, the GFS will include the following activities:
• LAI will identify and sample suspect lead containing paint (LCP) and document the
locations of the suspect LCP within the Project Area.
• Suspect LCP samples will be submitted to NVL Laboratories (NVL) to be analyzed for
the presence of total lead by Environmental Protection Agency (EPA) Method SW 846-
3051/7000B, using flame atomic absorption spectrometry. With a sufficient size
sample (0.2 gram or greater), this methodology has a minimum detection limit of 25
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4.C.a
parts per million. This detection limit is sufficiently low to identify lead concentrations
in paint that will allow an employer to comply with the State's worker protection
statute, and to identify materials that may need to be segregated from the waste
stream during the rehabilitation and repainting efforts. NVL is certified by Ecology's
Environmental Laboratory Accreditation Program and the American Industrial Hygiene
Association for analysis of lead in paint and other media.
• A request will be made that LCP samples submitted to NVL be archived and held for a
potential toxicity characteristic leaching procedure (TCLP) for lead using EPA Method
1311/6010. Upon the request of the Project team, LCP samples will be analyzed using
TCLP to determine applicable regulatory disposal requirements for the material, but
only if the results of analysis by flame atomic absorption spectrometry show lead
concentrations greater than or equal to 100 milligrams per kilogram (mg/kg) for
individual LCP samples.
Prior to any field activities, LAI will prepare a Project -specific health and safety plan (HASP)
that will be reviewed and approved by LAI's corporate Health and Safety Officer.
LAI will prepare a brief Technical Memorandum summarizing the GFS, sampling activities, and
results. This report will include descriptions of the survey and sampling activities; tabulated
analytical results; identification, approximate locations, and estimated quantities of LCP;
photographs of confirmed LCP sampling locations; and a summary of results. The report will
also outline field limitations and discuss suspect materials that were inaccessible for sampling
during the survey.
A draft GFS report will be submitted to CONSULTANT and the AGENCY for review and
comment. Upon receipt, comments will be addressed, as appropriate, and LAI will issue a final
report.
LAI will assist with identifying applicable standard and/or general special provisions related to
LCP mitigation to be included in the project specifications.
Assumptions:
• The AGENCY will provide site access and permissions, which include clearing the site of
homeless encampments as needed to provide safe access to the project area.
• A Hazardous Materials Discipline Report to address hazardous and problem waste may
be required by WSDOT based on its review of the preliminary NEPA CE form. Preparation
of a Hazardous Materials Discipline Report is not included in this scope of services. The
level of detail and report format for a Hazardous Materials Discipline Report is dependent
on the project activities and type and number of potential hazardous material impacts
identified. A scope and cost estimate to complete a Hazardous Materials Discipline
Report, if required by WSDOT, will be provided following receipt of review comments
from WSDOT regarding the preliminary NEPA CE form.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
• LAI will not enter or survey portions of the Project Area that:
o are within high vehicular traffic areas without proper and appropriate traffic
control;
o are deemed by the inspector to be permit -required, confined spaces;
o would require fall protection or are otherwise elevated and cannot be safely
accessed from the ground surface; or
o are otherwise judged to be unsafe to enter (e.g., dilapidated structures,
electrical or mechanical vaults, excessively high or steep surfaces, inaccessible
or overly constricted spaces, homeless encampments, or other areas not safe
for entry by LAI staff).
If such areas are identified, the inspector will attempt to identify suspect building
materials from a safe location or from a distance outside these areas, to the extent
practicable.
• GFS fieldwork, including mobilization and sample collection, can be completed by one
team of two inspectors. The GFS will be completed during daylight hours.
• Given the presence of elevated shoulder/walkway areas on the outer margins of the
bridge, and various pedestrian pathways beneath the bridge, the field team will be able
to safely collect samples from areas outside of the travel lanes and traffic control will not
be required. If, however, traffic control is required to allow for the field team to safely
collect samples, such work would either be provided by the AGENCY or by LAI under a
supplemental agreement.
• Up to 15 samples of suspect LCP will be collected during this GFS, all of which would be
analyzed for total lead; up to five samples may then be reanalyzed using the TCLP
methodology.
• Samples will be submitted to NVL and analyzed with a 5-business-day turnaround time.
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• No lighting or other electrical equipment will be needed to complete the sampling.
• The LCP survey will include targeted destructive sampling. This scope does not include a
time or material costs for LAI to repair sampling locations. Destructive methods will be a
limited. LAI will not attempt to locate or identify hazardous materials that are not readily
accessible (e.g., areas concealed beneath road decking, behind concrete or metal
retaining walls, or otherwise concealed by solid materials).
• As -built drawings that include features within the PROJECT Area will be provided to LAI at a
least 5 business days prior to the sampling event. LAI will review these drawings prior to
the sampling efforts to better understand the surveyed features' construction process
and potential material homogeneity. If such drawings are not available prior to the
fieldwork, this may be identified as a limitation in the GFS report.
• The draft GFS report will need only minor revisions, requiring no more than 2 hours to
produce the final document.
• This task does not include the development of specifications for use during construction.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
nP1h1Prnh1Pc-
• An electronic (Adobe PDF) copy of the draft and final GFS Report.
2.5 Section 4(f) Documentation
LAI will prepare the WSDOT Section 4(f) Temporary Occupancy form(s) to address
use/impacts of the project on the Green River Trail and/or associated parking area that may
be used for construction access and/or staging. The form(s) will provide:
• A project description
• A description of Section 4(f) resources (i.e., park and/or historic sites) affected by
the project and proposed impacts (including figure)
• A summary of public outreach efforts.
LAI will prepare a draft form(s) for review and comment by CONSULTANT and the AGENCY,
and then prepare a final document.
Assumptions:
• A concurrence letter from the agency with jurisdiction over the Section 4(f) resource will
be provided to LAI by the AGENCY.
Deliverables:
• An electronic (Adobe PDF) copy of the draft and final Section 4(f) Temporary Occupancy
form(s).
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2.6 Permit Applications
E
LAI will support the AGENCY, as requested, with application for Hydraulic Project Approval L
(HPA) from WDFW. An application for HPA will be submitted by the AGENCY through the Q
online Automated Package Processing System (APPS) website. LAI will also support, as
requested, preparation of the AGENCY's Shoreline Exemption application form and the USCG
Bridge Work Plan Concurrence and Maritime Stakeholder Notification.
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Assumptions: Q
• The AGENCY will initiate compilation of application materials and LAI will provide review
and/or additional information in support of the application(s).
• The AGENCY will pay all the applicable permit application fees.
• USCG bridge permit and associated navigation study will not be required.
• No work will occur below the ordinary high water line of the Green River and a permit
from the USACE will not be required.
• Plan view of the bridge and navigation clearances will be provided to LAI.
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flvli�iornhlvc•
• An electronic (Adobe PDF) copy of the draft and final Shoreline Exemption forms.
• An electronic (Adobe PDF) copy of the draft and final Section 4(f) Temporary Occupancy
form(s)
• An electronic (Adobe PDF) copy of the draft and final USCG Bridge Work Plan Concurrence
and Maritime Stakeholder Notifications.
2.7 Agency Coordination
LAI will assist CONSULTANT and the AGENCY to respond to agency comments on application
submittals and provide support with inquiries on agency status of reviews.
The agencies may require additional data regarding potential environmental impacts and
their mitigation to avoid/minimize impacts. Support will be provided via teleconference and
email.
Assumptions:
• Onsite meetings are not included in this task.
Ilnli�inrivhlne•
• Email and/or telephone correspondence.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
WORK ELEMENT 3 TRAFFIC ENGINEERING
This Work Element is performed by CONSULTANT to provide Traffic Engineering assistance to
the City required for the PROJECT. This work element includes the following subtasks:
3.1 Mobility of Traffic (MOT) Plans
CONSULTANT will act in an advisory role to provide any desired Mobility of Traffic (MOT)
plans for the construction phase of the Green River Bridge Repainting and Structural Deck
Overlay to the City. This subtask involves the following activities:
• Initial coordination with project team, AGENCY, and other stakeholders on traffic
control strategies and options based on design alternatives, including full closure
and partial closure options
• Any desired input in development of traffic control plans and review with project
team and agency stakeholders
• Attendance of one project public meeting to discuss traffic control strategies and
get input from public
• Meeting with project team and the AGENCY to select preferred traffic control
strategy
WORK ELEMENT 4 CIVIL/ ROADWAY/ DRAINAGE DESIGN AND UTILITY COORDINATION
This work element is performed by CONSULTANT to provide civil design services for the erosion
repairs at the abutments of the PROJECT. This task will include the following subtasks:
1. A grading plan at abutments to stabilize the sloughing that has occurred due to storm A
water penetration throught the failed expansion joints. This subtask will be performed
based on the available topo underneath the bridge at the abutment locations E
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2. A plan for surface drainage at the structure's superstructure deck level ;v
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Assumptions:
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• All civil work will be performed per existing topo information.
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Deliverables:
• Bridge abutment grading, and surface drainage plans.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
WORK ELEMENT 5 STRUCTURAL LOAD RATING AND ANALYSIS
This work element is performed by CONSULTANT to provide structural load rating and
analysis. This task includes the following activities:
• Review of existing load ratings and inspection reports
• Load rating and analysis for painting and repair activities:
o Load rating for dead and live loads anticipated for the work platform
o Load rating for post -repair conditions that includes overlay dead load and
analysis and rating for King County Rapid Route vehicles
All load rating activities will be performed per the Chapter 12 of 2022 WSDOT Bridge Design
Manual and the current AASHTO Manual for Bridge Evaluation (MBE).
The post rehabilitation load rating will be performed per WSDOT and AASHTO Load Factor
Rating (LFR) methodology.
The load rating will include the following elements:
• Main girders
• Stringers
• Truss rating
Assumptions:
• AGENCY will provide the information for King County's vehicles for Rapid Ride Route All
existing structural load rating information
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Deliverables:
• Load Rating Report for painting and repair activities L
• Post Rehabilitation Load Rating Report including analysis for KC Rapid Ride Route vehicles Q
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
WORK ELEMENT 6 STRUCTURAL DESIGN
This work element is performed by CONSULTANT to prepare 50%, and 100% Ad -Ready
structural and overlay design for the PROJECT. This task will include the following:
• Review of existing information and inspection reports to determine extent of steel
member repairs needed
• Deck overlay design
• Full Plans, Specifications, and Estimates for the following:
o Painting plan
o Paint containment system and work platform
o Deck overlay
o Expansion joint repair
6.1 50% Design
The activities associated with this task include the following:
• Data Collection and Review: CONSULTANT will further evaluate inspection reports, 12
recommendations by the inspector, load ratings, and documents available in BridgeWorks 00
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and provided by the AGENCY. L
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• Field Evaluation: CONSULTANT will perform a field evaluation of the existing condition of
the bridge deck and steel members that require repair, which may include:
o Bridge deck acoustic response (chain dragging)
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o Additional core samples for evaluation of chloride content
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o Evaluation of expansion joints for most durable replacement options
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o Condition of deck rebar in terms of corrosion build up and location from deck
surface
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o Inspection of steel elements to determine extent of repair needed in Q
preparation for painting c
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• Overlay Design: in coordination with the AGENCY, CONSULTANT will prepare a memo that E
describes different bridge deck overlay systems with a recommendation for system to be
advanced to full design. The memo will describe investigations on the following overlay Q
systems:
o Modified Concrete Overlay
o Polyester Overlay
o Methyl Methacrylate Overlay
Pros and cons of each system will be studied and the CONSULTANT will recommend the
system that is optimized for the PROJECT site. The AGENCY will be an inherent part of
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
this selection and upon the AGENCY's approval of the selected overlay system, the
CONSULTANT will advance design to full construction documents.
• Containment/ Work Platform System Design: CONSULTANT will prepare a 50%
containment system concept.
• Abutment Erosion Repair: CONSULTANT will prepare 50% design to mitigate and repair
abutment erosion at locations above Ordinary High Water Marks (OHWM).
• Joint Repairs: CONSULTANT will prepare 50% design for repair of static and expansion
joints of the bridge. Expansion Joints are only utilized at the bridge abutments.
• Specifications: CONSULTANT will prepare 50% preliminary specifications.
• Engineer's Estimate of Construction Cost (EECC): CONSULTANT will prepare preliminary
(50%) Engineer's Estimate of Construction Cost.
All activities will be performed in coordination with the AGENCY. Throughout the
structural design activities, special care will be given toward a low impact design approach
for many reasons including noise reduction, protection of the bridge structure and
protection of the waterway.
QA/QC activities are an inherent part of this task.
Assumptions:
• It is assumed that an in-depth inspection of the steel components of the bridge is not
necessary. If it is determined that there is a need following the site foot -inspection of the
bridge, a management reserve release will be requested by CONSULTANT for additional
funds to perform an in-depth inspection.
Deliverables:
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• One electronic copy in Adobe pdf of the 50% Plans Set, 11x17 (half-size).
• One electronic copy in Adobe pdf of the Preliminary (50%) Engineer's Opinion of
L
Construction Cost.
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• One electronic copy in MS Word of the Preliminary (50%) Specifications and the Runlist
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6.2 Draft 100% Design
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The activities associated with this task include the following:
• Overlay Design: CONSULTANT will advance the 50% design to draft 100% completion for
the bridge deck overlay.
• Containment/ Work Platform System Design: CONSULTANT will advance the 50% design
to 95% completion for the containment system design.
• Abutment Erosion Repair: CONSULTANT will advance the 50% design to draft 100%
design.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
• Joint Repairs: CONSULTANT will advance the 50% design to draft 100% design for repair
of static and expansion joints of the bridge.
• Specifications: In coordination with the AGENCY, CONSULTANT will advance the 50%
specifications to draft 100% completion.
• Engineer's Estimate of Construction Cost: CONSULTANT will advance the 50% EECC to
draft 100% completion.
QA/QC activities are an inherent part of this task.
Deliverables:
• One electronic copy in Adobe pdf of the draft 100% Plans Set, 11x17 (half-size)
• One electronic copy in Adobe pdf of the draft 100% Engineer's Opinion of Construction
Cost
• One electronic copy in MS Word of the draft 100% Specifications and the Runlist
6.3 Ad -Ready PS&E (100%) Design
The activities associated with this task include the following:
• Overlay Design: CONSULTANT will advance the draft 100% to Ad -Ready completion for
the bridge deck overlay. cn2
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• Containment System Design: CONSULTANT will advance the draft 100% to Ad -Ready
completion for the containment system design.
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• Work Platform Design: CONSULTANT will advance the draft 100% to Ad -Ready
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completion.
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• Abutment Erosion Repair: CONSULTANT advance the draft 100% to Ad -Ready completion. E
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• Joint Repairs: CONSULTANT will advance the draft 100% to Ad -Ready completion for
repair of static and expansion joints of the bridge. Q
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• Specifications: In coordination with the AGENCY, CONSULTANT will advance the draft E
100% to Ad -Ready completion.
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• Engineer's Estimate of Construction Cost: CONSULTANT will advance the draft 100% EECC Q
to Ad -ready completion.
QA/QC activities are an inherent part of this task.
Assumptions:
• AGENCY to provide Specification Manual template to CONSULTANT
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
Deliverables:
• One electronic copy in Adobe pdf of the Ad -Ready 100% Plans Set, 11x17 (half-size)
• One electronic copy in Adobe pdf of the Ad -Ready 100% Engineer's Estimate of
Construction Cost
• One electronic copy in MS Word of the Ad -Ready 100% Specifications and the Runlist in
the AGENCY's format
Sheet Set
Sheet Name
# of Sheets
PS&E Submittal Phase
50%
Draft
100%
100%
Cover Sheet & Sheet Index
1
X
X
X
Legend, Abbreviations & Notes
1
X
X
X
Structural General Notes
1
X
X
Bridge Plan, Elevation, and Section
1
X
X
X
Construction sequence
2
X
X
X
Bridge Overlay Plans & Details
3
X
X
X
Steel repairs and details
2
X
X
Expansion Joint Details
1
X
X
Bridge Drainage Details
1
X
X
Utility Support Details
2
X
X
Abutment Erosion Repair
3
X
X
X
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WORK ELEMENT 7 ASSISTANCE DURING BID PERIOD a,
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CONSULTANT shall provide bid support and assist AGENCY in answering questions from
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prospective bidders during the bid process. After the construction contract has been
awarded, CONSULTANT shall attend one prebid conference with potential bidders to assist
AGENCY in responding to questions.
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CONSULTANT shall provide responses to up to ten contractor Request for Information (RFIs)
and prepapre up to two contract addendums, if required.
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City of Kent - Green River Bridge Repainting and Structural Deck Overlay
Project Deliverable Anticipated Schedule
Deliverable
Anticipated Delivery
Date
Invoices and Progress Reports
Monthly
Project Schedule
Two weeks after NTP
Risk Matrix
Ongoing
Load Rating Report for painting and repair activities
4/30/ 2023
Post Rehabilitation Load Rating Report
After construction
Draft Wetland and Waterway Delineation Technical Memorandum
2/10/2023
Final Wetland and Waterway Delineation Technical Memorandum
2/17/2023
NEPA CE Submittal
5/1/2023
Area of Potential Affect (APE)
2/33/2023
Good Faith Survey Report
3/1/2023
Section 4(f) Temporary Occupancy form(s)
4/1/2023
USCG Bridge Work Plan Concurrence and Maritime Stakeholder
Notifications
5/1/2023
Shoreline Exemption forms
3/1/2023
Draft 50% Plans, Specifications, and Estimate (PS&E)
3/01/2023
City Review
3/02/2023--3/16/2023
Approval To Proceed for Draft 100% Phase
3/20/2023
Draft 100% Plans, Specifications, and Estimate
7/03/2023
Ad -ready PS&E
7/28/2023
PHASE 2 SUPPLEMENT - CONSTRUCTION PHASE SERVICES
At the discretion of the AGENCY, construction phase services may be added as a supplement
to this contract.
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4.C.a
Exhibit C
Preparation and Delivery of Electronic Engineering and Other Dati
In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is
to use in preparing electronic files for transmission to the agency. The format and standards to be provided may
include, but are not limited to, the following:
Z Surveying, Roadway Design & Plans Preparation Section
A. Survey Data
B. Roadway Design Files
C. Computer Aided Drafting Files
a
Local Agency A&E Professional Services
Negotiated Hourly Rate Consultant Agreement Revised 0713012021
LA10339 & LA10341
Agreement Numb
Packet Pg. 104
4.C.a
D. Specify the Agency's Right to Review Product with the Consultant
E. Specify the Electronic Deliverables to Be Provided to the Agency
F. Specify What Agency Furnished Services and Information Is to Be Provided
Q
LA10339 & LA10341
Local Agency A&E Professional Services Agreement Numb
Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 105
4.C.a
K Any Other Electronic Files to Be Provided
Ill. Methods to Electronically Exchange Data
Q
LA1-339 & LA10341
Local Agency A&E Professional Services Agreement Numb
Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 106
4.C.a
A. Agency Software Suite
B. Electronic Messaging System
C. File Transfers Format
Q
LA1-339 & LA10341
Local Agency A&E Professional Services Agreement Numb
Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 107
4.C.a
Exhibit D
Prime Consultant Cost Computation;
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LA10339 & LA10341
Local Agency A&E Professional Services Agreement Numb
Negotiated Hourly Rate Consultant Agreement Revised 0713012021 Packet Pg. 108
4.C.a
Exhibit D- Prime Consultant Cost Computations Summary Ik-1-
T R A N T E C H
Project Name Green River Bridge Deck Overlayand Repainting Engineering LL C Client City of Kent
TRANTECH TEAM BUDGET BREAKDOWN
Work Element 1 Project Management $31,029
Work Element 2 Environmental Permitting and Wetland/Waterway Delineation $38,526
Work Element 3 Traffic Engineering $10,423
Work Element 4 Civil/ Roadway/ Drainage & Utility Coordination $14,258
Work Element 5 Structural Load Rating & Analysis $65,507
Work Element 6 Structural Design PS&E $182,866
Work Element 7 Assistance During Bid Period $9,297
Reimbursable Expenses $613
TOTAL PROJECT BUDGET
$352,519
Packet Pg. 109
4.C.a
Exhibit D - Prime Consultant Cost Computations Summary
Project Name Green River Bridge Deck Overlay and Repainting'
J 9 Y
Client City of Kent
TRANTECH TEAM BUDGET BREAKDOWN
TRANTECH
Engineering LLC
TranTech - Civil/Roadway/Structural $313,993
Landau Associates - Environmental $38,526
TOTAL PROJECT BUDGET
$352,519
Packet Pg. 110
4.C.a
TranTech
Exhibit D - Prime Consultant Cost Computation
TranTech Engineering
City of Kent
Green River Bridge Deck Overlay and Repainting
Project multiplier: 2.6057
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Total
Hours
Direct Labor Total Cost Per
Coati Work Element
Initials/Name
P. Limaya
K. Nilc ad
J KingrA
5 Shih
K.Massey
A. E—to
A. Gage/ IDS
R. Bran
K. Van VeL er
C. Sherrell
M. Shukhindeh
D. Jensen
B. Bryant
direct rate
70
89
89
71.9
52
41
70
58
50
60
89
50
45
.68
1.1
Monthly Progress Reports and Invoicir
2
80
24
106
$ 8,340.00
1.2
Project Kickoff Meeting and Progress
Meetings
16
8
24
$ 1,784.00
1.3
Design Team Management
16
8
24
$ 1,784.00
0
$
ork Element 3 - Traffic Engineering
40
16
8
64
4,000.00
$ 4,000.00
$ 10,422.80
0
$
nt 4 - Civil/Roadway/Drainage Design & Utlity Coordinatl
14,258.39
24
24
32
16
96
$ 5,472.00
0
$
5 - Structural Load Rating and Anal
8
$ 65,507.30
40
120
120
120
24
432
$ 25,140.00
0
$
- Structural Design
6.1 Overlay Alternatives Memo 8 8 8 8 16 8
6.2 50%PS&E
Data Collection and Review 8 6
0
$ 4,087.20
$ -
$ 1,424.00
182,865.94
56
16
Field Evaluation
8
8
8
24
$ 1,904.00
50%Design
$
Overlay Design
8
8
8
8
8
32
8
24
104
$ 6,575.20
Containment/ Work Platform
8
8
8
8
8
16
56
$ 3,927.20
Abutment Erosion Repair
8
16
20
20
8
24
96
$ 6,526.00
Joint Repairs
8
8
16
16
8
16
72
$ 4,918.40
50%Specifications
16
24
16
56
$ 3,392.00
6.3
50%Estimate
Draft100%PS&E
Overlay Design
8
8
8
8
20
8
8
32
8
24
28
104
$ 1,752.00
$ -
$ 6,575.20
Containment/ Work Platform Design
8
8
8
8
8
16
56
$ 3,927.20
Abutment Erosion Repair
8
16
20
20
6
24
96
$ 6:526.00
Joint Repairs
8
8
16
16
6
16
72
$ 4918.40
Draft 100% Specifications
16
24
16
56
$ 3,392.00
6.4
Draft 100% Estimate
100% PS&E
100%Plans
8
8
16
16
20
16
8
8
8
8
8
8
16
16
28
136
$ 1,752.00
$ -
$ 8,582.40
100% Specifications
0
Mnisnt
100% Estimate
7 - Assistance During Bid Pe
0
16
16
16
48
$ 3,568.00
0
$
0
$
0
$
0
I (Total Staff Hours 1 2 280 1 168 248 1 336 144 1 72 1 32 1 56 1 96 1 88 1 200 1 128 1 1850
Page 1
Packet P9- 111
4.C.a
TranTech
Exhibit D - Prime Consultant Cost Computation
TranTech Engineering
City of Kent
Green River Bridge Deck Overlay and Repainting
Project multiplier: 2.6u
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¢
Total
Hours
Direct Labor
Cost
Total Cost Per
Work Element
Initials/Name
P. Limeye
K. Nikzad
J King/A
S Shih
K.Massey
A. Emoto
A. Gage/ DS
R. Brar
K. Van Velzer
C. Sherrell
M. Sheikhindehl
D. Jensen
B. Bryant
direct rate
Total Direct Labor Cost
70
$140.00
89
$24,920.00
89
$14,952.00
71.9
$17,831.20
52
$17,472.00
41
$5,904.00
70
$5,040.00
58
$1,856.00
50
$2,800.00
60
$5,760.00
89
$7,832.00
50
$10,000.00
45
$5,760.00
$ 120,267.20
$ 313,380.24
$120,267.20
Reimbursable
Expenses
Subtotal (Labor)l
Overhead @ 130.57Yo
Fee @ 30%
$ 120,267.20
$ 157,032.88
$ 36,080.16
Travel expenses (mileage)
100
• $0.625
$ • 62.50
Graphic supplies
1
$150.000
$ 150.00
Production
1
$400.000
$ 400.00
Reimbursable Expenses
$ 612.50
$
Total Reimbursable Expenses
$ 612.50
Notes:
(a) Rates shown reflect the typical compensation
rate
of employees assigned
to the
labor classification
listed.
Each category may have multiple employees assigned to that labor classification and each employee
may have a different hourly rate cf pay. Invoices will reflect actual pay rate.
(b) Classifications shown are general, the actual invoice will show our employee's
specific labor
classification -
for e.g., Senior Engineer, Senior Geologist, Senior Planner.
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4.C.a
Exhibit E
Sub -consultant Cost Computation:
If no sub -consultant participation listed at this time. The CONSULTANT shall not sub -contract for the
performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to
section VI "Sub -Contracting" of this AGREEMENT.
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Negotiated Hourly Rate Consultant Agreement Revised 0713012021 1 Packet Pg. 113
4.C.a
LAI
Exhibit E - Subconsultant Cost Computation
Landau Associates
Client City of Kent
Green River Bridge Repainting and Structural Overlay
Project multiplier: 3.1098
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inHours
Total
Direct Labor
Cost
Total Cost Per
Work Element
Name
Katie Saltoitz
Jnav
ennifer Wynkoop
Steven Quarterman
Derek Palvino
Nicole Foster
Chris Sommer
Nick Ulacia
Alyssa Johnson
Devan King
Allan Barton
Jeff Valluui
Eric Zick
direct rate
$91.35
1 $65.39
$56.01
$48.08
1 $47.36
$36.06
$32.70
1 $33.00
$24.00
1 $38.50
$38.47
$45.35
$25.75
7,564.89
1
Wetland/Waterway Delineation
1
21
30
6
6
64
$ 2,948.64
2
WSDOT Local Programs NEPA
26
4
3
2
35
$ 2,037.14
3
Agency Preapplication Meetings
20
20
$ 1,307.80
4
Hazardous Materials GFS
1
1
12
18
4
14
50
$ 2,208.84
5
Section 4(f) Documentation
13
3
4
20
$ 1,146.97
6
Permit Applications
1
20
3
24
$ 1,514.65
7
Agency Coordination
12
4
16
$ 915.48
Total Staff
Hours
3
113
12
0
0
18
38
0
4
15
0
26
0
229
Total Direct Labor Cost
$274.05
$7,389.07
$672.12
$0.00
$0.00
$649.08
$1,242.60
$0.00
$96.00
$577.50
$0.00
$1,179.10
$0.00
$ 12,079.52
$ 37,564.89
$12,079.52
Reimbursable
Expenses
Subtotal
(Labor)
$ 12,079.52
Overhead
@ 180.98%
$ 21,861.52
It..
Travel expenses (mileage)
units
100
Unit
• $0.625
$ Total 62.50
Fee @
30%
$ 3,623.86
Field Supplies
205
$1.000
$ 205.00
Laboratory
1
$694.000
$ 694.00
Reimbursable
Expenses
$ 961.50
$
Total Reimbursable Expenses
$ 961.50
Notes:
(a) Rates shown reflect the typical compensation rate of employees assigned to the labor classification listed.
Each category may have multiple employees assigned to that labor classification and each employee
may have a different hourly rate of pay. Invoices will reflect actual pay rate.
(b) Classifications shown are general, the actual invoice will show our employee's specific labor classification -
for e.g., Senior Engineer, Senior Geologist Senior Planner.
2
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4.C.a
Exhibit F - Title VI Assurances Appendix A & E
APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in
interest (hereinafter referred to as the "contractor") agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts
and the Regulations relative to Non-discrimination in Federally -assisted programs of the U.S. Department of
Transportation, (Federal Highway Administration), as they may be amended from time to time, which are
herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not
discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors,
including procurements of materials and leases of equipment. The contractor will not participate directly or
indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices
when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.
[Include Washington State Department of Transportation specific program requirements.]
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations,
either by competitive bidding, or negotiation made by the contractor for work to be performed under a
subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or
supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the
Regulations relative to Non-discrimination on the grounds of race, color, or national origin. [Include
Washington State Department of Transportation specific program requirements.]
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the
Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other
sources of information, and its facilities as may be determined by the Recipient or the (Federal Highway
Administration) to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where
any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish
the information, the contractor will so certify to the Recipient or the (Federal Highway Administration), as
appropriate, and will set forth what efforts it has made to obtain the information.
Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination
provisions of this contract, the Recipient will impose such contract sanctions as it or the (Federal Highway
Administration) may determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the contractor complies; and/or
b. cancelling, terminating, or suspending a contract, in whole or in part.
a
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every
subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the
Regulations and directives issued pursuant thereto. The contractor will take action with respect to any
subcontract or procurement as the Recipient or the (Federal Highway Administration) may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes
involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the
contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In
addition, the contractor may request the United States to enter into the litigation to protect the interests of the
United States.
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4.C.a
Exhibit F - Title VI Assurances Appendix A & E
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes
and authorities; including but not limited to:
Pertinent Non -Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits
discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. §
4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of
Federal or Federal -aid programs and projects);
• Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of
sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits
discrimination on the basis of disability); and 49 CFR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination
on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits
discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and
applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and
Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or
activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and
contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of
disability in the operation of public entities, public and private transportation systems, places of public
accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by
Department of Transportation regulations at 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits
discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and
Low -Income Populations, which ensures discrimination against minority populations by discouraging
programs, policies, and activities with disproportionately high and adverse human health or
environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency,
and resulting agency guidance, national origin discrimination includes discrimination because of limited
English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to
ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating
because of sex in education programs or activities (20 U.S.C. 1681 et seq).
a
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4.C.a
Exhibit G
Certification Document
Exhibit G-1(a) Certification of Consultant
Exhibit G-I(b) Certification of Agency Official
Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary
Covered Transactions
Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying
Exhibit G-4 Certificateof Current Cost or Pricing Data N/A
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4.C.a
Exhibit G-1(a) Certification of Consultant
I hereby certify that I am the and duly authorized representative of the firm of
TranTech Engineering, LLC
whose address is
365 118th Avenue SE, Suite 100, Bellevue, WA 98005-3557
and that neither the above firm nor I have
a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration,
any firm or person (other than a bona fide employee working solely for me or the above CONSULTANT)
to solicit or secure this AGREEMENT;
b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of
any firm or person in connection with carrying out this AGREEMENT; or
c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working
solely for me or the above CONSULTANT) any fee, contribution, donation, or consideration of any kind
for, or in connection with, procuring or carrying out this AGREEMENT; except as hereby expressly
stated (if any);
I acknowledge that this certificate is to be furnished to the
Clty Of Kent
and the Federal Highway Administration, U.S. Department of Transportation in connection with this
AGREEMENT involving participation of Federal -aid highway funds, and is subject to applicable State and
Federal laws, both criminal and civil.
TranTech Engineering, LLC Y
Consultant (Firm Name)
C
Signature (Authorized Offidal of Consultant) Date
L
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Exhibit G-1(b) Certification of City of Kent
4.C.a
I hereby certify that I am the:
Agency Official
❑ Other
of the City of Kent
and TranTech Engineering, LLC
or its representative has not been required, directly or indirectly as an express or implied condition in connection
with obtaining or carrying out this AGREEMENT to:
a) Employ or retain, or agree to employ to retain, any firm or person; o
b) Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or
consideration of any kind; except as hereby expressly stated (if any):
I acknowledge that this certificate is to be furnished to the City of Kent
and the Federal Highway Administration, U.S. Department of Transportation, in connection with this
AGREEMENT involving participation of Federal -aid highway funds, and is subject to applicable State and
Federal laws, both criminal and civil.
W
Signature City of Kent pate }'
d
Dana Ralph, Mayor
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4.C.a
Exhibit G-2 Certification Regarding Debarment Suspension and Other Responsibility
Matters - Primary Covered Transactions
L The prospective primary participant certifies to the best of its knowledge and belief, that it and its
principals:
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from covered transactions by any Federal department or agency;
B. Have not within a three (3) year period preceding this proposal been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or
contract under a public transaction; violation of Federal or State anti-trust statues or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements,
or receiving stolen property;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of
this certification; an
D. Have not within a three (3) year period preceding this application / proposal had one or more public
transactions (Federal, State and local) terminated for cause or default.
II. Where the prospective primary participant is unable to certify to any of the statements in this
certification such prospective participant shall attach an explanation to this proposal.
TranTech Engineering, LLC
Consultant (Firm Name)
Signature (Authorized Official of Consultant) Date
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4.C.a
Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for
Lobbying
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any
person for influencing or attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative AGREEMENT, and the extension, continuation,
renewal, amendment, or modification of Federal contract, grant, loan or cooperativeAGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any Federal agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection
with this Federal contract, grant, loan or cooperative AGREEMENT, the undersigned shall complete and
submit Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its
instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file
the require certification shall be subject to a civil penalty of not less than $10,000.00, and not more than
$100,000.00 for each such failure.
The prospective participant also agrees by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier sub -contracts, which exceed
$100,000 and that all such sub -recipients shall certify and disclose accordingly.
TranTech Engineer, LLC
Consultant (Firm Name)
Signature (Authorized Official of Consultant) Date
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4.C.a
Exhibit I
Alleged Consultant Design Error Procedure:
The purpose of this exhibit is to establish a procedure to determine if a consultant has alleged design error is of a
nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the
resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some
material damage due to the alleged error by the consultant.
Step 1 Potential Consultant Design Error(s) is Identified by Agency's Project Manager
At the first indication of potential consultant design error(s), the first step in the process is for the
Agency's project manager to notify the Director of Public Works or Agency Engineer regarding the
potential design error(s). For federally funded projects, the Region Local Programs Engineer should be
informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer
may appoint an agency staff person other than the project manager, who has not been as directly
involved in the project, to be responsible for the remaining steps in these procedures.)
Step 2 Project Manager Documents the Alleged Consultant Design Error(s)
After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the
Director of Public Works or Agency Engineer's concurrence, the project manager obtains more detailed
documentation than is normally required on the project. Examples include all decisions and descriptions
of work, photographs, records of labor, materials, and equipment.
Step 3 Contact the Consultant Regarding the Alleged Design Error(s)
If it is determined that there is a need to proceed further, the next step in the process is for the project
manager to contact the consultant regarding the alleged design error(s) and the magnitude of the alleged
error(s). The project manager and other appropriate agency staff should represent the agency and the
consultant should be represented by their project manager and any personnel (including sub -consultants)
deemed appropriate for the alleged design error(s) issue.
Step 4 Attempt to Resolve Alleged Design Error with Consultant
After the meeting(s) with the consultant have been completed regarding the consultant's alleged design M
error(s), there are three possible scenarios:
• It is determined via mutual agreement that there is not a consultant design error(s). If this is the case,
4)
E
then the process will not proceed beyond this point.
• It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case,
a
then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement
with the consultant. The settlement would be paid to the agency or the amount would be reduced
from the consultant's agreement with the agency for the services on the project in which the design
OM
error took place. The agency is to provide LP, through the Region Local Programs Engineer, a a
summary of the settlement for review and to make adjustments, if any, as to how the settlement
affects federal reimbursements. No further action is required.
• There is not a mutual agreement regarding the alleged consultant design error(s). The consultant may
request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency
Engineer for review. If the Director of Public Works or Agency Engineer, after review with their legal
counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5.
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4.C.a
Step 5 Forward Documents to Local Programs
For federally funded projects, all available information, including costs, should be forwarded through the
Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet
with representatives of the agency and the consultant to review the alleged design error(s), and attempt to
find a resolution to the issue. If necessary, LP will request assistance from the Attorney General's Office
for legal interpretation. LP will also identify how the alleged error(s) affects eligibility of project costs
for federal reimbursement.
If mutual agreement is reached, the agency and consultant adjust the scope of work and costs to
reflect the agreed upon resolution. LP, in consultation with FHWA, will identify the amount of federal
participation in the agreed upon resolution of the issue.
If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or
by litigation.
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4.C.a
Exhibit J
Consultant Claim Procedure:
The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The
following procedures should only be utilized on consultant claims greater than $1,000. If the consultant's
claim(s) total a $1,000 or less, it would not be cost effective to proceed through the outlined steps. It is
suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the
consultant's claim(s) that total $1,000 or less.
This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential
claim by the consultant.
Step 1 Consultant Files a Claim with the Agency Project Manager
If the consultant determines that they were requested to perform additional services that were outside of
the agreement's scope of work, they may be entitled to a claim. The first step that must be completed is
the request for consideration of the claim to theAgency's project manager.
The consultant's claim must outline the following:
• Summation of hours by classification for each firm that is included in the claim
• Any correspondence that directed the consultant to perform the additional work;
• Timeframe of the additional work that was outside of the project scope;
• Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the
additional work; and
• Explanation as to why the consultant believes the additional work was outside of the agreement
scope of work.
Step 2 Review by Agency Personnel Regarding the Consultant's Claim for Additional Compensation
After the consultant has completed step 1, the next step in the process is to forward the request to the
Agency's project manager. The project manager will review the consultant's claim and will met with the
Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the
FHWA is participating in the project's funding, forward a copy of the consultant's claim and the
Agency's recommendation for federal participation in the claim to the WSDOT Local Programs through
the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will
need to be from agency funds.
If the Agency project manager, Director of Public Works or Agency Engineer, WSDOT Local Programs
(if applicable), and FHWA (if applicable) agree with the consultant's claim, send a request memo,
including backup documentation to the consultant to either supplement the agreement, or create a new
agreement for the claim. After the request has been approved, the Agency shall write the supplement
and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the
final payment for the agreement is subject to audit. No further action in needed regarding the claim
procedures.
If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures.
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4.C.a
Step 3 Preparation of Support Documentation Regarding Consultant's Claim(s)
If the Agency does not agree with the consultant's claim, the project manager shall prepare a summary
for the Director of Public Works or Agency Engineer that included the following:
• Copy of information supplied by the consultant regarding the claim;
• Agency's summation of hours by classification for each firm that should be included in the claim
• Any correspondence that directed the consultant to perform the additional work;
• Agency's summary of direct labor dollars, overhead costs, profit and reimbursable costs associate
with the additional work;
• Explanation regarding those areas in which the Agency does/does not agree with the consultant's
claim(s);
• Explanation to describe what has been instituted to preclude future consultant claim(s); and
• Recommendations to resolve the claim.
Step 4 Director of Public Works or Agency Engineer Reviews Consultant Claim and Agency
Documentation
The Director of Public Works or Agency Engineer shall review and administratively approve or
disapprove the claim, or portions thereof, which may include getting Agency Council or Commission
approval (as appropriate to agency dispute resolution procedures). If the project involves federal
participation, obtain concurrence from WSDOT Local Programs and FHWA regarding final settlement
of the claim. If the claim is not eligible for federal participation, payment will need to be from agency
funds.
Step 5 Informing Consultant of Decision Regarding the Claim
The Director of Public Works or Agency Engineer shall notify (in writing) the consultant of their final
decision regarding the consultant's claim(s). Include the final dollar amount of the accepted claim(s) and
rationale utilized for the decision.
Step 6 Preparation of Supplement or New Agreement for the Consultant's Claim(s)
The agency shall write the supplement and/or new agreement and pay the consultant the amount of the
claim. Inform the consultant that the final payment for the agreement is subject to audit
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4.D
•
4^4�
KENT
WASH NGTON
DATE: January 9, 2023
TO: Public Works Committee
PUBLIC WORKS COMMITTEE
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5500
SUBJECT: King County Waste Reduction & Recycling (WRR) Grant
Agreement - Authorize
MOTION: I move to accept the 2023-2024 Waste Reduction and Recycling
(WRR) grant from the King County Solid Waste Division in the amount of
$178,189.00, authorize the Mayor to establish a budget for expenditure of
the funds, and sign the agreement with King County subject to final terms
and conditions acceptable to the Public Works Director and City Attorney.
SUMMARY: The King County Waste Reduction and Recycling (WRR) grant is
primarily used to fund the City's residential recycling collection events at no
additional cost to residents. These events provide responsible ways for residents to
dispose of hard -to -recycle materials including but not limited to appliances,
mattresses, Styrofoam, bulky yard debris, concrete, and tires. Making these events
free to the public provides access for more residents to participate.
Additionally, this grant will fund other waste reduction programs, activities, and
education to Kent residents and City staff including translation of solid waste
communication materials, social media campaigns, the purchase of compostable
materials, and disposal costs for hard -to -recycle materials.
BUDGET IMPACT: The City will receive $178,189 in 2023-2024.
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Government - Delivering outstanding customer service, developing leaders, and
fostering innovation.
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
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ATTACHMENTS:
1. WRR Grant 2023-2024 IAA (PDF)
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CPA #
INTERAGENCY AGREEMENT FOR 2023 and 2024
Between
KING COUNTY and the CITY OF KENT
This two-year Interagency Agreement "Agreement" is executed between King County, a Charter County
and political subdivision of the State of Washington, and the City of Kent, a municipal corporation of the
State of Washington, hereinafter referred to as "County" and "City" respectively. Collectively, the
County and City will be referred to as "Party" or "Parties."
PREAMBLE
King County and the City of Kent adopted the 2019 King County Comprehensive Solid Waste
Management Plan (Comp Plan), which includes waste reduction and recycling goals. In order to help
meet these goals, the King County Solid Waste Division has established a waste reduction and recycling
grant program for the cities that operate under the Comp Plan. This program provides funding to further
the development and/or enhancement of local waste reduction and recycling projects and for broader
resource conservation projects that integrate with waste reduction and recycling programs and services.
This grant program does not fund household hazardous waste collection activities. Program eligibility
and grant administration terms are discussed in the Grant Guidelines, attached to this Agreement as
Exhibit B and incorporated herein by reference. Grant funding for this program is subject to the budget
approval process of the King County Council.
Grant funding approved by the King County Council is available to all King County cities that operate
under the Comp Plan. The City will spend its grant funds to fulfill the terms and conditions set forth in
the scope of work, which is attached hereto as Exhibit A and incorporated herein by reference. The
County expects that any information and/or experience gained through the grant program by the City will
be shared with the County and other King County cities.
I. PURPOSE
The purpose of this Agreement is to define the terms and conditions for funding to be provided to the
City by the County for waste reduction and recycling programs and/or services as outlined in the scope of
work and budget attached as Exhibit A.
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II. RESPONSIBILITIES OF THE PARTIES
The responsibilities of the Parties to this Agreement shall be as follows:
A. The Ci
1. Funds provided to the City by the County pursuant to this Agreement shall be used to provide
waste reduction and recycling programs and/or services as outlined in Exhibit A. The total
amount of funds available from this grant in 2023 and 2024 shall not exceed $178,189.
2. This Agreement provides for distribution of 2023 and 2024 grant funds to the City. However,
grant funds are not available until January 1, 2023.
3. During this two-year grant program, the City will submit a minimum of two (2), but no more than
eight (8), progress reports to the County in a form determined by the County. Reports must be
signed by a City official. These reports will include:
a. a description of each activity accomplished pertaining to the scope of work; and
b. reimbursement requests with both a Budget Summary Report Form, which is attached
hereto as Exhibit D and incorporated herein by reference, and an Expense Summary Form,
which is attached hereto as Exhibit E and incorporated herein by reference, unless the City
has a spreadsheet similar to the Expense Summary Form already in use, in which case the
City is free to use that spreadsheet instead of the Expense Summary Form. The City will
submit the form or similar spreadsheet and not submit backup documentation for grant
expenses. If backup documentation is submitted, SWD will not retain it. The City shall
maintain this documentation in its records.
If the City chooses to submit up to the maximum of eight (8) progress reports and requests for
reimbursement during the two-year grant program, they shall be due to the County on the last day
of the month following the end of each quarter (April 30, July 31, October 31, January 31), except
for the final progress report and request for reimbursement, which shall be due by March 21,
2025.
If the City chooses to submit the minimum of two progress reports and requests for
reimbursement during the two-year grant program, they shall be due to the County by March 15,
2024 and March 21, 2025.
Regardless of the number of progress reports the City chooses to submit, in order to secure
reimbursement, the City must provide in writing to the County by the 5t' working day of January
2024 and January 2025, the dollar amount of outstanding expenditures for which the City has not
yet submitted a reimbursement request.
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4. If the City accepts funding through this grant program for the provision of waste reduction and
recycling programs and projects for other incorporated areas of King County, the City shall
explain the relationship with the affected adjacent city or cities that allows for acceptance of this
funding and the specifics of the proposed programs and projects within the scope of work
document related thereto.
5. The City shall be responsible for following all applicable Federal, state, and local laws,
ordinances, rules, and regulations in the performance of work described herein. The City assures
that its procedures are consistent with laws relating to public contract bidding procedures, and the
County neither incurs nor assumes any responsibility for the City's bid, award, or contracting
process.
6. During the performance of this Agreement, neither the City nor any Party subcontracting under
the authority of this Agreement shall discriminate on the basis of race, color, sex, religion,
nationality, creed, marital status, sexual orientation, age, or presence of any sensory, mental, or
physical handicap in the employment or application for employment or in the administration or
delivery of or access to services or any other benefits under this Agreement as defined by King
County Code, Chapter 12.16.
7. During the performance of this Agreement, neither the City nor any Party subcontracting under
the authority of this Agreement shall engage in unfair employment practices as defined by King
County Code, Chapter 12.18. The City shall comply fully with all applicable federal, state, and
local laws, ordinances, executive orders and regulations that prohibit such discrimination. These
laws include, but are not limited to, RCW Chapter 49.60 and Titles VI and VII of the Civil Rights
Act of 1964.
8. The City shall use recycled paper for the production of all printed and photocopied documents
related to the fulfillment of this Agreement. The City shall use both sides of paper sheets for
copying and printing and shall use recycled/recyclable products wherever practical.
9. The City shall maintain accounts and records, including personnel, financial, and programmatic
records, and other such records as may be deemed necessary by the County, to ensure proper
accounting for all project funds and compliance with this Agreement. All such records shall
sufficiently and properly reflect all direct and indirect costs of any nature expended and service
provided in the performance of this Agreement.
These records shall be maintained for a period of six (6) years after termination hereof unless
permission to destroy them is granted by the Office of the State Archivist in accordance with
RCW Chapter 40.14. These accounts shall be subject to inspection, review, or audit by the
County and/or by federal or state officials as so authorized by law.
10. The City shall maintain a record of the use of any equipment that costs more than $1,000 and is
purchased with grant funds from King County for a total period of three (3) years. The records
shall be compiled into a yearly evaluation report, a copy of which shall be submitted to King
County by March 31 of each year through the year 2025.
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11. The City agrees to credit King County on all printed materials provided by the County, which the
City is duplicating, for distribution. Either King County's name and logo must appear on King
County materials (including fact sheets, case studies, etc.), or, at a minimum, the City will credit
King County for artwork or text provided by the County as follows: "artwork provided courtesy
of King County Solid Waste Division" and/or "text provided courtesy of King County Solid
Waste Division."
12. The City agrees to submit to the County copies of all written materials which it produces and/or
duplicates for local waste reduction and recycling projects which have been funded through the
waste reduction and recycling grant program. Upon request, the City agrees to provide the
County with a reproducible copy of any such written materials and authorizes the County to
duplicate and distribute any written materials so produced, provided that the County credits the
City for the materials.
13. The City will provide the King County Project Manager with the date and location of each
Recycling Collection Event provided by the City, as well as copies of any printed materials used
to publicize each event, as soon as they are available but no later than thirty (30) days prior to the
event. If there is any change in the date or the location of an event, the City will notify the
County a minimum of thirty (30) days prior to the event. If the event brochure is required for
admission to the City's event, the City is exempt from having to provide the brochure to King
County.
14. If the City accepts funding through this grant program for the provision of recycling collection
events for adjacent areas of unincorporated King County, the City shall send announcements of
the events to all residences listed in the agreed upon areas listed in Exhibit A. The
announcements and all other printed materials related to these events shall acknowledge King
County as the funding source.
15. This project shall be administered by Tony Donati, Conservation Coordinator, or designee.
B. The County:
The County shall administer funding for the waste reduction and recycling grant program.
Funding is designated by the city and is subject to the King County Council's budget approval
process. Provided that the funds are allocated through the King County Council's budget
approval process, grant funding to the City will include a base allocation of $10,000 per year with
the balance of funds to be allocated according to the City's percentage of King County's
residential and employment population. However, if this population based allocation formula
calculation would result in a city receiving less than $10,000 per year, that city shall receive an
additional allocation that would raise their total grant funding to $10,000 per year.
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2. Within forty-five (45) days of receiving a request for reimbursement from the City, the County
shall either notify the City of any exceptions to the request which have been identified or shall
process the request for payment. If any exceptions to the request are made, this shall be done by
written notification to the City providing the reason for such exception. The County will not
authorize payment for activities and/or expenditures which are not included in the scope of work
and budget attached as Exhibit A, unless the scope has been amended according to Section V of
this Agreement. King County retains the right to withhold all or partial payment if the City's
report(s) and reimbursement request(s) are incomplete (i.e., do not include proper documentation
of expenditures and/or adequate description of each activity described in the scope of work for
which reimbursement is being requested), and/or are not consistent with the scope of work and
budget attached as Exhibit A.
3. The County agrees to credit the City on all printed materials provided by the City to the County,
which the County duplicates, for distribution. Either the City's name and logo will appear on
such materials (including fact sheets, case studies, etc.), or, at a minimum, the County will credit
the City for artwork or text provided by the City as follows: "artwork provided courtesy of the
City of Kent" and/or "text provided courtesy of the City of Kent."
4. The County retains the right to share the written material(s) produced by the City which have
been funded through this program with other King County cities for them to duplicate and
distribute. In so doing, the County will encourage other cities to credit the City on any pieces that
were produced by the City.
5. The waste reduction and recycling grant program shall be administered by Lucy Auster, Project
Manager, King County Solid Waste Division, or designee.
III. DURATION OF AGREEMENT
This Agreement shall become effective on either January 1, 2023 or the date of execution of the
Agreement by both the County and the City, if executed after January 1, 2023, and shall terminate on
June 30, 2025. The City shall not incur any new charges after December 31, 2024. However, if
execution by either Party does not occur until after January 1, 2023, this Agreement allows for
disbursement of grant funds to the City for County -approved programs initiated between January 1, 2023
and the later execution of the Agreement provided that the City complies with the reporting requirements
of Section II.A of the Agreement.
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IV. TERMINATION
A. This Agreement may be terminated by King County, in whole or in part, for convenience without
cause prior to the termination date specified in Section III, upon thirty (30) days advance written
notice.
B. This Agreement may be terminated by either Parry, in whole or in part, for cause prior to the
termination date specified in Section III, upon thirty (30) days advance written notice. Reasons for
termination for cause may include but not be limited to: nonperformance; misuse of funds; and/or
failure to provide grant related reports/invoices/statements as specified in Section II.A.3. and Section
II.A.4.
C. If the Agreement is terminated as provided in this section: (1) the County will be liable only for
payment in accordance with the terms of this Agreement for services rendered prior to the effective
date of termination; and (2) the City shall be released from any obligation to provide further services
pursuant to this Agreement.
D. Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or
law that either Parry may have in the event that the obligations, terms and conditions set forth in this
Agreement are breached by the other Party.
V. AMENDMENTS
This Agreement may be amended only by written agreement of both Parties. Amendments to scopes of
work will only be approved if the proposed amendment is consistent with the most recently adopted King
County Comprehensive Solid Waste Management Plan. Amendments will only be approved if the
proposed change(s) is (are) consistent with and/or achieves the goals stated in the scope and falls within
the activities described in the scope. Funds may be moved between tasks in the scope of work, attached
as Exhibit A, upon written notification by the City to King County.
VI. HOLD HARMLESS AND INDEMNIFICATION
The City shall protect, indemnify, and hold harmless the County, its officers, agents, and employees from
and against any and all claims, costs, and/or issues whatsoever occurring from actions by the City and/or
its subcontractors pursuant to this Agreement. The City shall defend at its own expense any and all
claims, demands, suits, penalties, losses, damages, or costs of any kind whatsoever (hereinafter "claims")
brought against the County arising out of or incident to the City's execution of, performance of, or failure
to perform this Agreement. Claims shall include but not be limited to assertions that the use or transfer
of any software, book, document, report, film, tape, or sound reproduction or material of any kind,
delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, and/or
otherwise results in unfair trade practice.
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VII. INSURANCE
A. The City, at its own cost, shall procure by the date of execution of this Agreement and maintain for
the duration of the Agreement, insurance against claims for injuries to persons or damages to
property which may arise from or in connection with performance of work pursuant to this
Agreement by the City, its agents, representatives, employees, and/or subcontractors. The minimum
limits of this insurance shall be $1,000,000 general liability insurance combined single limit per
occurrence for bodily injury, personal injury, and property damage. If the policy has an aggregate
limit, a $2,000,000 aggregate shall apply. Any deductible or self -insured retentions shall be the sole
responsibility of the City. Such insurance shall cover the County, its officers, officials, employees,
and agents as additional insureds against liability arising out of activities performed by or on behalf
of the City pursuant to this Agreement. A valid Certificate of Insurance and additional insured
endorsement is attached to this Agreement as Exhibit C, unless Section VII.B. applies.
B. If the Agency is a Municipal Corporation or an agency of the State of Washington and is self -insured
for any of the above insurance requirements, a written acknowledgement of self-insurance is attached
to this Agreement as Exhibit C.
C. If the Agency is a Municipal Corporation or an agency of the State of Washington and is a member of
the Washington Cities Insurance Authority (WCIA), a written acknowledgement/certification of
current membership is attached to this Agreement as Exhibit C.
VIII. ENTIRE CONTRACT/WAIVER OF DEFAULT
This Agreement is the complete expression of the agreement of the County and City hereto, and any oral
or written representations or understandings not incorporated herein are excluded. Waiver of any default
shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of this
Agreement shall not be deemed to be waiver of any other or subsequent breach and shall not be
construed to be a modification of the terms of this Agreement unless stated to be such through written
approval by the County, which shall be attached to the original Agreement.
IX. TIME IS OF THE ESSENCE
The County and City recognize that time is of the essence in the performance of this Agreement
X. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this Agreement is, for any reason, found to be
unconstitutional or otherwise invalid by a court of competent jurisdiction, such decision shall not affect
the validity of the remaining portions.
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XI. NOTICE
4.D.a
Any notice required or permitted under this Agreement shall be deemed sufficiently given or served if
sent to the King County Solid Waste Division and the City at the addresses provided below:
If to the City:
Lucy Auster, Project Manager, or a provided designee
King County Solid Waste Division
Department of Natural Resources and Parks
Lucy.auster@kingcounty.gov
Tony Donati, Conservation Coordinator, or a provided designee
City of Kent
220 4th Avenue South
Kent, WA 98032
IN WITNESS WHEREOF this Agreement has been executed by each Parry on the date set forth below:
City of Kent
Dana Ralph, Mayor
City of Kent
Date
King County
BY
Pat D. McLaughlin, Director
Solid Waste Division
For Dow Constantine, King County Executive
Date
I
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Exhibit A
King County Waste Reduction and Recycling Grant Program
City of Kent - 2023-2024 Scope of Work
A. Basic Information
1. Applicant:
2. Grant Project Manager:
Grant Contract Signer:
3. 2023-2024 Budget
B. Proposed Scope of Work
City of Kent
Tony Donati, Conservation Coordinator
City of Kent
220 4th Ave. South
Kent, WA 98032-5895
TEL - c: (206) 867-2739 o: (253) 856-5589
FAX - (253) 856-6500
Email - tdonati@kentwa.gov
Dana Ralph, Mayor
City of Kent
220 4t" Ave. South
Kent, WA 98032-5895
TEL: 253-856-5700
FAX:253-856-6700
Email: dralph(cbkentwa.gov
$178,189.00
Task #1: Recycling Collection Events
A) Schedule - Events will be held each March, June, and October, 2023-2024
B) Program/Project Description:
• Total Number of Recycling Collection Events - Six (6)
• Materials to be collected:
• Appliances
• Bulky Yard Debris (March & June)
• Cardboard
• CFC Appliances
• Concrete, Asphalt, Rock, and Brick (June & October)
• Electronics
• Mattresses
• Paint
• Porcelain Toilets and Sinks
• Reusable Household Goods
• Textiles
• Scrap Metal
• Ferrous
• Non-ferrous
• Shredding
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• Styrofoam
• Tires (March & October)
• The following educational materials will be distributed:
• Information on City recycling programs
• Educational materials produced by King County Solid Waste Division
and Hazardous Waste Management Program
• Other educational materials as appropriate
Event Promotion:
• Recycle event flyer will be posted on City website:
KentWA.gov/TalkingTrash, detailing what residents can bring and
giving credit to granting agencies funding the events.
• Notices included in:
• Event flyer mailed to 63,000 homes
• City & Reporter Newspaper calendars
• Kent social media (Facebook/Twitter)
• Event flyer sent to city staff in multiple departments for
distribution
• Event flyers in brochure racks at Senior Center, Kent Commons,
City Hall, and Centennial Center
• Event posted on King County website
• Event dates included on Republic Services' annual calendar
distributed to residents
C) Deliverables:
The City will promote the recycling events to Kent single-family and multi-
family residents in a variety of ways to ensure a good turnout, and contract
with knowledgeable, experienced contractors to assist residents attending the
events. In return, the city anticipates collecting 275-300 tons material from
the local waste stream each year.
Benefits of diverting these recyclables from the waste stream include:
❑ Saving limited space in our area's last remaining landfill
❑ Conserving natural resources
❑ Saving water and energy that would otherwise have been used in
extraction of raw materials and in manufacturing
D) Expected Outcomes/Impacts:
By providing convenient and free collection at the March, June, and October
Recycling Events, not only does it provide equity for all, but Kent residents can
help reduce the amount of environmentally damaging materials from finding
their way to King County's last remaining landfill, local storm drains and
waterways, and vacant properties. With a population of approximately 135,000
residents, the City of Kent has experienced increased volumes in residents
attending recent recycling events. The city anticipates this trend to continue
with approximately 3,000 households participating each year, resulting in
approximately 300 tons of materials diverted from the waste stream for
recycling per event.
In addition to diverting materials from the waste stream, attracting residents
to these ever -popular events provides an opportunity to distribute edu ational
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material on City and King County
knowledge and improving behavior in
recyclable materials.
E) Evaluation:
Event reports will include:
• Number of vehicles attending
• Volume of each material collected
• Event costs
• Event summaries write up
recycling programs, enhancing their
purchasing, handling, and disposal of
Task #2: Mini Neighborhood Recycling Collection Events
A) Schedule: In compliance with county and environmental regulations conduct
ten - sixteen mini collection recycling events between 2023-2024.
B) Program/Project Description:
• Materials to be collected:
• Document Shredding
• Electronics
• Mattresses
• Paint
• Textiles
Event Promotion:
• Mini recycle event flyer will be posted on City website:
KentWA.gov/TalkingTrash, detailing what residents can bring and
giving credit to granting agencies funding the events.
• Notices included in:
• City Community Calendar
• Kent social media (Facebook/Twitter)
• Advertised in the Mayor's weekly newsletter
• Event flyer sent to city staff in other departments for distribution
C) Deliverables:
The City will promote these mini recycling events to Kent single-family and
multi -family residents in a variety of ways to ensure a good turnout, and
contract with knowledgeable, experienced contractors to assist residents
attending the events. In return, the city anticipates collecting 50 tons material
from the local waste stream each year.
Benefits of diverting these recyclables from the waste stream include:
❑ Saving limited space in our area's last remaining landfill
❑ Conserving natural resources
❑ Saving water and energy that would otherwise have been used in
extraction of raw materials and in manufacturing
D) Expected Outcomes/Impacts
By providing convenient and free mini neighborhood collection events
throughout the year, not only does it provide equity for all, but Kent residents
can help reduce the amount of environmentally damaging materials from
finding their way to King County's last remaining landfill, local storm drains
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and waterways, and vacant properties. These events will also reach a different
population due to their smaller nature, variety of locations and days on which
they will be held. These events are also intended to reduce the amount of
congestion we traditionally see at our regular larger events. With a population
of approximately 135,000 residents, the City of Kent has experienced
increased volumes in residents attending recent recycling events. The city
anticipates approximately 1,000 - 1,500 households to participate each year,
resulting in approximately 10-15 tons of materials diverted from the waste
stream for recycling per event.
In addition to diverting materials from the waste stream, attracting residents
to these new events provides an opportunity to distribute educational material
on City and King County recycling programs, enhancing their knowledge and
improving behavior in purchasing, handling, and disposal of recyclable
materials.
E) Evaluation
Event reports will include:
• Number of vehicles attending
• Volume of each material collected
• Event costs
• Event summaries write up
Task #3: Residential, Multifamily & Business Outreach
A) Schedule: 2023-2024
B) Program/Project Description:
The city of Kent will use different forms of media, presentations, trainings,
online materials, and promotional items to promote waste reduction and
recycling programs. The city will look to staff and/or consultants to continue
providing outreach as well. Priority areas of focus will include working with
multifamily properties on the regional outreach messaging to promote
contamination reduction within the recycling stream. Other focuses will be
targeted on residential food waste diversion where the city will purchase and
distribute compostable BioBags.
The city will also team with other south sound cities on monthly social media
outreach through Facebook boosts to promote common outreach messages to
a broader audience.
The city will assist in providing education to businesses on the requirements of
HB 1799 - organics materials.
Finally, the city will continue to team with our contracted garbage hauler as we
implement our own Contamination Reduction Program for residential and
multifamily customers. City staff will evaluate monthly reports and visit
properties needing assistance and/or have high contamination rates providing
outreach and education along with hauler staff.
C) Deliverables:
The city will produce media pieces, displays, trainings, online materials, and
promotional items, which may include, but are not limited to posters,
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postcards, flyers, and workshops. These materials will be used to promote
waste reduction and recycling including food waste.
The city may produce educational materials for property owners/managers and
residents, distribute recycle tote bags, and conduct onsite visits to assist
properties on proper contamination reduction within the recycle stream and
avoid possible fines from the garbage company.
D) Expected Outcomes/Impacts:
Postcards, flyers, advertisements, social media announcements, and
online materials will promote upcoming City and County events and
inform residents about resources available for waste reduction and
recycling specific to their home. The city will increase awareness of and
participation in the City's Waste Reduction and Recycling Programs.
Businesses will be aware of the requirements and different methods to
comply with HB 1799.
The city will educate residents of the proper methods of recycling and
waste dispose of non -recyclable materials to reduce recycle
contamination.
E) Evaluation:
Reports will include:
• The city will record the number of businesses and residents were reached,
number of events and the types of materials that were distributed.
• The city will record the number of properties who received outreach, the
number of outreach materials were distributed, the percentage
contamination reduced, and a summary calculation of changes and
improvements made to each facility's recycling volumes.
Task #4: Residential Recycling Event Brochure Translation
A) Schedule: 2023-2024
B) Program/Project Description:
To better engage with our diverse populations the city will look to translate its
Residential Recycling Event Brochure into Spanish and possibly other
languages for the first time.
Q Deliverables:
Spanish is the second leading language spoken in the diverse city of Kent. The
city will work with a translation service to translate its recycling collection
event brochure into at least one additional language.
D) Expected Outcomes/Impacts:
Translating the city's recycle event brochure into another language provides
equity and inclusion to those who do not read or speak English as a first
language. Additional languages may also lead to more people attending events
and more items being property recycled.
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4.D.a
E) Evaluation:
A report of which languages the brochure was translated into, and copies of
the new brochure will be shared.
Task #5: City Purchases Promoting Waste Reduction and Recycling
A) Schedule: 2023-2024
B) Activities:
• The city may purchase water bottle refill stations which may be installed in
city parks and/or buildings.
• The city will purchase compostable plates, cups, and utensils for staff to
utilize during staff lunches or celebrations to reduce the amount of non -
recyclable and single use plastics entering the waste stream.
• The city will collect and pay for the disposal to recycle Styrofoam and light
bulbs within city facilities.
C) Performance and Impact Objectives:
• The city of Kent has one of the highest quality drinking water in the
area. Within this budget timeframe, Kent will purchase and install water
bottle refill stations which may be installed in city owned parks and/or
buildings. Residents will understand that water coming from their tap, in
Kent, is just as high in quality as water from bottles they purchase at
the store.
Refillable water bottle stations are quick and easy for all people to use
and provide contactless refilling abilities. Stations inspire trust in the
quality and safety of the city's tap water and encourage proper
hydration as well. Using a water bottle refill station saves one to two
plastic water bottles from being purchased and improperly disposed of
The city of Kent understands the importance of waste reduction and
extending the life of King County's last remaining landfill. The city has
been composting food waste within city facilities for over a decade. By
continuing to purchase compostable plates, cups, and utensils for staff
use it not only saves our landfill, but it also educates the user of the
product.
The city purchases clearly labeled compostable items (including brown
paper plates and brown colored utensils) to signify to the user to be
more cautious and to ensure it can go into the correct receptacle.
• Creating opportunities for staff and residents to recycle Styrofoam and
light bulbs is very important to responsibly reducing the waste stream.
The city partners with Kent's own, StyroRecycle, the state's only
Styrofoam recycling facility, to recycle its generated Styrofoam. The city
has two large gaylords which collect Styrofoam and keeps it from our
waste stream. Once full, StyroRecycle comes to collect the containers
for a fee.
6 1 Packet Pg. 141
4.D.a
The city also houses multiple lightbulb recycle stations throughout
multiple facilities that are available to public and staff. These containers
need to be purchased and once full, are shipped to a local bulb recycler.
D) Evaluation:
• The city will report on the number of water bottle refill stations
purchased and installed.
• The city will provide proof of purchase of compostable materials.
• The city will provide weight of recycled Styrofoam and number of
lightbulb recycle stations purchased and shipped.
Task #6: Solid Waste Professional Development and Education for Staff
The city will utilize grant dollars to continually educate staff on current matters
regarding solid waste and waste reduction.
Professional development and staying updated on the latest trends in solid waste and
waste reduction and recycling are of the upmost importance. The city will utilize
grant dollars to continually educate staff on these matters by:
• Becoming a WSRA member
• Attending the WSRA annual conference
• Registering for other appropriate educational trainings through the
WSRA, SWANA, and other opportunities that may become available.
Task #7: Grant Administration
The city will perform the following:
• Track project expenses.
• Provide ongoing grant administration through the completion of the tasks,
as outlined in this Scope of Work.
• Prepare reports for the grant program; and
• Prepare final report.
Packet Pg. 142
4.D.a
Exhibit B
2023-2024 WRR Grant Guidelines
Program Eligibility:
The King County Solid Waste Division (SWD) has prepared a list of Re+ Action Ideas that expands on
the WRR Case Studies shared in the past two grant cycles and that includes new creative and
innovative project ideas for WRR Grant proposals/scopes of work (Attachment 3). The goal of this list
is to offer ideas for innovative projects beyond current WRR SOWs including, ideas for incorporating
Equity and Social Justice into all of our work such as transcreating materials and signage into top
spoken languages in King County.
The list offers ideas for influencing waste prevention and recycling consistent with Title 10 of King
County Code, the King County Strategic Climate Action Plan, and the King County 2019
Comprehensive Solid Waste Management Plan (Comp Plan), all of which have policies to achieve
Zero Waste of Resources by 2030. SWD strongly encourages consideration of these projects in the
development of grant proposals and encourages Cities to leverage WRR grant funds with multi -city
projects.
Grant funds may be used for a variety of WRR related programs consistent with the Comp Plan. Cities
are encouraged to work together to leverage funds and have a greater influence on waste prevention
and recycling. Cities may choose to use their funding on one program or a combination of programs.
For WRR program ideas, please refer to the Re+ Action Ideas, which includes the examples below.
Sample Re+ Actions
• Food Waste — Food rescue infrastructure investment — supporting hunger relief organizations and
food banks with resources like food storage, trucks, etc.
• Community - Establishing tool and other equipment libraries or other sharing initiatives, e.g.,
borrow party packs for picnics and birthday parties.
• Paper/Plastic Recycling - Multi -family - Technical assistance and in -person outreach to increase
recycling in multifamily complexes, with an emphasis of a multicultural and multilingual approach
such as through Spanish speaking Facilitadores and or use of other regularly spoken languages for
a particular housing community.
• Banning single -use items in dine -in restaurants and hotels, e.g., coffee cups, water bottles, mini
personal care items, etc.
• Conduct food waste audits and implement customized food waste recycling programs in
economically and culturally diverse communities.
In addition, below are project examples included in the Case Studies shared in the last two grant
cycles.
Sample Case Study Actions
• City Development of Contracts for "Responsible Recycling."
• Purchase School Milk Dispensers and Reusable Cups to Replace Single -use Milk Cartons.
• City of Bellevue Recycling Unusual of Bulky Items.
• City of Kirkland Organics Contamination Enforcement — Cart Tagging
Packet Pg. 143
4.D.a
Please contact Lucy Auster at 206-477-5268 or lucy.auster(&kingcounty.gov if you have questions
about specific program eligibility and/or consistency with the Comp Plan.
The following are not eligible for funding:
Collection of garbage, except for residual garbage related to the collection of recyclables.
Household Hazardous Waste (HHW) education programs.
Collection of any household hazardous waste items including, but not limited to:
treated wood, paint, lead acid batteries, oil, gasoline, and antifreeze, fluorescent lights.
Cities should pursue funding for HHW collection or education programs through the King County
Hazardous Waste Management Program (Haz Waste) or the Washington State Department of Ecology
Local Solid Waste Financial Assistance (LSWFA) Program.
Grant Administration
Requests for Reimbursement:
Cities may submit as few as one request for reimbursement per year during the funding cycle, due no
later than March 16, 2024 and March 14, 2025. Alternately, Cities may submit requests for
reimbursement as frequently as quarterly. A Budget Summary Report Form and an Expense Summary
Report Form must be used when submitting requests for reimbursement and will be provided to Cities
when the grant agreements are executed.
Accrual Reporting:
By the 51h working days of January 2024 and January 2025, Cities must notify SWD of the amount of
their total expenditures for work that has been completed in the previous year but for which a request
for reimbursement has not yet been submitted so that SWD can accrue the amounts.
Progress Reports
Progress reports describing program activities, accomplishments, and evaluation results must
accompany each request for reimbursement. All progress reports must be signed by a City official and
be submitted via email.
Amendments
Amendments to grant Interagency Agreements (IAAs) are unnecessary unless the City wishes to
significantly change its scope of work. In general, a significant change would be one in which the City
wishes to add or delete a task from its scope of work. Amendments will only be approved if the
proposed change(s) is/are consistent with and/or achieves the goals stated in the scope and falls within
the activities described in the scope. A minor change, such as moving dollars between tasks, would
only require written notification, which may be submitted via e-mail. However, the City should
contact SWD when considering changes to their scopes to determine if an amendment is needed.
Packet Pg. 144
4.D.a
Exhib
BUDGET SUMMARY REPORT FORM
2023-2042 Waste Reduction & Recycling Grant Program
City:
Date:
Address:
Phone:
Invoice #:
Report Period:
Preparer's Name:
Contract #:
Total amount requested this period:
Total amount previously invoiced:
Original interlocal amount:
Total amount charged to date:
$ -
Amount remaining for completion of interlocal: $ -
Scope of Work
Current
Amount
Task
Description
Budget
Quarter
Previously
Remaining
#
(Task/title)
Costs
Invoiced
Balance
1
$ -
2
$ -
3
$ -
4
$ -
5
$ -
6
$ -
7
$ -
TOTALS
$
$
$
$
For King County Use
Contract # 0
Project 1126942 Org 720122
Exp.Account 54150 Task
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Purchase Order # Requisition # Receipt
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Invoice # Payment Type
Total charges this period are approved for paymen $
Project Manager:
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4.D.a
Exhibit E
King County Waste Reduction Recycling Grant Expense Summary Form
2023-2024 Grant Cycle
City of
Reimbursement Request #
Date
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Vendor
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4.E
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KENT
WASH NGTON
DATE: January 9, 2023
TO: Public Works Committee
PUBLIC WORKS COMMITTEE
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5500
SUBJECT: INFO ONLY: Water Resource Inventory Area (WRIA) 9 Notice
of Intent to apply for grant funding
SUMMARY: The Green/Duwamish and Central Puget Sound Watershed is included
in Water Resource Inventory Area (WRIA) 9, which through a Technical
Implementation Committee, Management Committee and Forum, facilitates
planning, analysis and funding of salmon recovery in the Green River Watershed.
Annually, the WRIA publishes Notices of Intent to Apply for projects to receive
grant funding from various state and local programs. Grant applications are
reviewed and approved by the WRIA.
One of the projects in the Salmon Habitat Plan is located in Kent, the Boeing Levee
Restoration. This reach of river is located on the right bank (looking downstream)
between S. 2121" St. and S. 2001" St. The City owns properties along the Boeing
Levee that were dedicated to serve a combination of recreation, natural resources
and flood protection.
Staff is preparing a Notice of Intent to Apply for funding to prepare a feasibility
study to make improvements to this river reach. The project would include salmon
habitat and recreation elements, and it would allow for future levee improvements
that would provide protection from a 500-year flood event on the Green River.
N/A. To be determined based on potential grant award. Grant matching funds of
15% would come from the Drainage Utility Fund. Any grant award would be
presented to the Public Works Committee and City Council for action.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Packet Pg. 148