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HomeMy WebLinkAboutAgreement for Flood Protection ServicesAGREEMENT FOR FLOOD PROTECTION SERVICES THIS AGREEMENT FOR FLOOD PROTECTION SERVICES ("Agreement") is entered into on the last date signed below by and between the Parties, the CITY OF AUBURN, a Washington municipal corporation ("City"); and KING COUNTY, a political subdivision of the State of Washington ("County"), (collectively referred to herein sometimes as the "Parties") with reference to the following facts: RECITALS A. This Agreement is a contract setting the terms and conditions by which the City will perform certain flood control management work under contract with the County, and the County will reimburse the City for such work and grant to the City rights of access and license as required for the City to perform the work. B. The United States Army Corps of Engineers ("Corps") has jurisdiction over the Howard Hanson Dam, which due to its diminished capacity, may release waters in coming months that may cause flooding in the City. The Corps also has authority to assist with flood protection measures with regard to the Green River Levee System and other flood protection facilities along the Green River, which is the potential source of floodwaters entering the City. The Corps has purchased materials that it is willing to make available to the County, the City and other local jurisdictions, provided that the materials are used in accordance with the recommendations provided by the Corps, as set forth in Exhibit A, attached hereto and incorporated herein by reference. C. The King County Executive has issued an emergency proclamation that provides that the threat of releases of additional waters from the Howard Hanson Dam constitutes an emergency, waives county procurement requirements for contracts related to the county's response to the emergency, and postpones County permitting procedures for public works. D. The Mayor and City Council of the City of Auburn have issued an emergency proclamation declaring the state of emergency conditions declared by the County are approved, confirmed and adopted by the City Council, and providing AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 1 of 8 that during the existence of said emergency, the Mayor is authorized to implement such administrative procedures as may be necessary to prepare for, respond to, stabilize and control said emergency, consistent with state law and local regulations. E. The County, by the exercise of its flood control authority under Chapter 86.12 RCW, and the City, as contractor to the County, and by exercise of its police powers, intend to increase flood prevention efforts in order to better protect the citizens and property in the City, by implementing additional flood prevention measures that are consistent with Corps specifications. F. The Parties understand and agree that the acquisition of equipment and materials; the filling, placing and maintenance of sand bags and other materials; and other activities necessary to supplement and protect the Green River Levee System is within the authority of the County and that it is efficient under the circumstances for the City to perform the Work, as further defined below. Exhibit B, attached hereto and incorporated herein by this reference, provides a depiction and identification of the sites where the levees are located for which the County and the District, as defined below, hold real property interests for flood protection purposes, and where the Work, as defined below, is to be performed ("Levees°'). G. The County and the City recognize that coordination of flood protection efforts is necessary, as the Green River Levee System is an integrated system, with actions on one reach of the Levee System having potential impacts on other reaches. Accordingly, the County and the City will make efforts to integrate the Work provided for herein with the flood protection actions being taken in other jurisdictions along the Green River, either by the County or by the affected local jurisdiction. H. Since the County operates and maintains a major portion of the Green River Levee System as part of the services it provides to the King County Flood Control Zone District ("District"), and since the County in its own right is authorized to operate and maintain flood protection facilities on those areas where it holds real property interests in its own name or in the name of the District, or where it has been granted a right of entry, it is appropriate that the County reimburse the City for the actual costs of the Work, as hereinafter defined, so long as such costs do not exceed $1,019,200.00, and are verifiable and reasonable under the circumstances. Reimbursement will be made based upon the linear feet on which Work is performed, including Work performed by one jurisdiction for another, as more fully described in Exhibit B. If the funds provided for herein are insufficient to pay the City's actual costs to complete the Work, the City shall complete the Work either with its own funds or funds from some third party funding source. AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 2 of 8 I. The King County Flood Control Zone District, a quasi municipal corporation and taxing district under the constitution of the State of Washington, due to the diminished capacity of the Howard Hanson Dam and the consequent potential for flooding, has provided funding to the County to increase flood prevention measures along the Green River Levee System and has included such measures in its annual work program and budget. The County as Service Provider to the District desires to engage the services of the City to implement these measures. NOW, THEREFORE, BASED UPON THE FOREGOING, AND THE FACT THAT BOTH OF THE PARTIES HAVE PROCLAIMED THAT AN EMERGENCY EXISTS, the Parties agree to the following: AGREEMENT - 1. All recitals are hereby ratified as part of this Agreement. 2. The City will perform the Work, as defined below, with City forces and by duly awarded and executed contracts for procurement and public work. A description of the work to be performed and the standards to which it is to be performed is set forth in Exhibit C, attached hereto and incorporated herein by this reference ("Work"). Some portion of the Work may occur prior to the execution of this Agreement; the County agrees that such Work shall otherwise be subject to the terms of this Agreement and be eligible for cost reimbursement provided such costs meet the terms of No. 7 below. The Work shall be completed by November 7, 2009. In the event that the City does not complete the Work by November 7, 2009, the County may complete the Work and charge back the costs of such portion of the Work to the City's not-to-exceed reimbursable amount, as set forth in No. 7 below. 3. A portion of the Work will be performed under contracts by contractors to the City. Copies of the contracts are included in Exhibit D to this Agreement. Contracts of the City that are entered into after the effective date of this Agreement may become part of Exhibit D, upon written approval by the County. 4. Any change orders to the contracts included in Exhibit D, shall require written approval by the County, which approval shall not be unreasonably withheld, and upon such approval be appended to this Agreement. 5. Upon completion of the Work by City forces and upon Final Acceptance of contract Work, the City will submit detailed invoices to the County. 6. The City agrees to maintain documentation of all Work performed sufficient to meet state audit standards for the implementation of a capital project, AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 3 of 8 recognizing that the County and/or the District may seek recovery of costs expended from state, federal, and other funding sources. The City agrees to maintain additional documentation that is requested by the County in order to seek recovery of costs. City contract and internal documents will be made available to the County for review and/or independent audit upon request. 7. The County will reimburse the City for the actual costs of such Work within sixty (60) days of submittal of the invoices, up to an amount not to exceed $1,019,200.00, unless the Parties agree to extend that time to resolve disputes. Any costs in excess of $1,019,200.00, incurred by the City and/or its contractors shall be the responsibility of the City to pay. If the funds provided for herein are insufficient to pay the City's actual costs to complete the Work, the City shall complete the Work either with its own funds or funds from some third party funding source. 8. The County, to the extent that its property interests and those of the District require and allow, hereby grants the City the right of access to the Levees and license and permission for special use to perform the Work upon the Levees, including those Levees that are outside the City Limits and are identified in Exhibit B. The County waives any applicable bond requirements. 9. The City shall be responsible for complying with all applicable laws, and obtaining all required permits in connection with the Work. 10. The County and the City agree that the Work as provided for herein should follow the recommendations of the Corps as provided for in Exhibit A and should not have a detrimental effect on the flood protection efforts of other jurisdictions along the Green River. 11. This Agreement and any activities authorized hereunder shall not be construed as granting any rights or privileges to any third person or entity, or as a guarantee or warranty of protection from flooding or flood damage to any person, entity or property, and nothing contained herein shall be construed as waiving any immunity to liability to the County and/or the District, granted under state statute, including Chapters 86.12 and 86.15 of the Revised Code of Washington, or as otherwise granted or provided for by law. 12. The City acknowledges and agrees that it will not allow any lien or encumbrance to be placed upon the real property interests and any other interests held by King County and/or the District in connection with the Work. If any lien or encumbrance is so placed, King County and/or the District shall have the right to remove such lien and charge back the costs of such removal to the City. AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 4 of 8 13. In addition to authorizing the implementation and completion of the Work, the County authorizes, but does not require, the City, its employees, contractors, agents and volunteers to visually inspect and monitor the condition and performance of the completed Work during the timeframe typically known as "flood season," which for the purposes of this Agreement shall be from November 1, 2009 through March 31, 2010, unless otherwise extended in writing by both Parties. The City agrees that, in addition to the hold harmless and indemnification provided for in Section 14 below, the City assumes all risk for itself, its employees, contractors, agents and volunteers for any damages to persons or property, both real and personal, that may occur during such visual inspection and monitoring activities, and agrees to hold the County and the District harmless and to indemnify the County and the District for any claims that may arise out of such visual inspection and monitoring activities. 14. The City, its officers, employees, agents, contractors, invitees and volunteers acknowledge that the County and the District are making no representations as to the current condition of the Levees. The City agrees to hold harmless and indemnify the County and/or District for any negligent act or omission of the City, its officers, employees, agents, contractors, invitees and volunteers, to the extent not within any immunity conferred by law on the County and/or the District arising out of the Work performed on the Levees pursuant to this Agreement. Such indemnification shall extend to any claims, including all demands, suits and judgments, for damages arising out of injury to persons or damage to property, where such injury or damage is caused by, arises out of the city's negligence. The City by contract terms has required its contractors to pass through indemnification to the District and County to the extent of their respective property interests. The Parties recognize that the Work is intended to increase protection against flooding for the City, its citizens, and property within and around the City. However, such efforts at increasing protection are no guarantee that flooding will not occur. In the event that flooding does occur, the County and the District shall continue to enjoy the immunity for flood prevention measures conferred by law, and it is the intention of the Parties that the City, as contractor to the County, shall likewise be included within such immunity to the extent allowed by law, and to the extent not covered by the City's reasonable exercise of its police powers. Nothing in this No. 14 shall be construed to eliminate, reduce, or otherwise abrogate any immunity conferred on the County and/or District in connection with acts or omissions arising out of the Work. The indemnification provided for in this No. 14 shall survive termination of this Agreement. AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 5 of 8 15. This Agreement shall remain in force and effect until the heightened threat of flood has passed and associated restoration and temporary and permanent clean-up work is complete. Upon a determination by the Corps that the capacity of the Howard Hanson Dam has been restored to its original design capacity, the City shall cause all materials that have been placed on the Levees in accordance with the Work, to be removed and to dispose of them in accordance with any instructions provided by the Corps, which at all times shall remain the owner of the materials, unless separately furnished by the City. The City agrees that upon removal of the materials, it shall restore the Levees to their condition previous to the placement of materials, to the extent impacted by the placement of the materials, and shall be responsible for all costs associated with such removal and restoration, unless the County determines, in its sole discretion, that additional funds are available and makes such funds available for part of or all of such costs. 16. Solely for the purpose of enforcing the indemnification provision in Section 14 above, each Party expressly waives, with respect to the other Party only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 of the Revised Code of Washington; provided that, such waiver shall not preclude any indemnifying Party from raising such immunity as a defense against any claim brought against the indemnifying party by any of its employees. 17. Each Party recognizes that the other is self-insured and accepts such coverage for liability arising under this Agreement. Should any Party choose not to self-insure, that Party shall maintain and keep in full force and effect a policy of general liability insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence with an additional excess liability policy of not less than Ten Million Dollars ($10,000,000) and will provide the other Party with a certificate of insurance and additional insured endorsement that will name the other Party as an additional insured. 18. The Parties will seek to resolve any disputes under the Agreement as follows: a. For disputes involving cost reimbursements, submittal of all relevant information to an independent Certified Public Accountant and/or a Construction Claims Consultant, if agreed upon by the Parties, for a non-binding opinion as to the responsibility. b. If the foregoing does not result in resolution and for all other disputes, the Parties may mutually select any informal means of resolution and resort will otherwise be had to the Superior Court for King County, Washington. AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 6 of 8 c. Each Party will be responsible for its own costs and attorney's fees in connection with the dispute resolution provisions of this Section 15. 19. This Agreement represents a full recitation of the rights and responsibilities of the parties and may be modified only in writing and upon the consent of both Parties. 20. The rights and licenses contained in this Agreement shall inure to the benefit of and are binding upon the Parties, and their respective successors in interest and assigns. 21. All communications regarding this Agreement shall be sent to the parties at the addresses listed below unless a party gives notice of a change of address. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the address state below or such other addresses as may be hereinafter specified in writing. If to City: Dennis Dowdy, Director City of Auburn Public Works Department 25 West Main Street Auburn, WA 98001 If to District and/or County: Theresa Jennings, Director King County DNRP 201 South ]ackson St, Ste. 700 Seattle, WA 98104-3855 AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 7 of 8 22. The undersigned warrant that they have the authority duly granted by their respective legislative bodies to make and execute this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement, which shall become effective on the last date signed below. CITY Ovx-u By: > Peter B. Lewis Its: Mayor DATE: ~ t j ~ Z~~r~ APPROVED AS TO FORM: By: City Atto ney City of Auburn ATTEST: ~ B y. City Clerk f City of Auburn KING COUNTY ~ By: Its: Executive DATE : APPROVED AS TO FORM: By: . ' rosecuting Attorney for Depu eounty King AUBURN AGREEMENT FOR FLOOD PROTECTION SERVICES Page 8 of 8 EXHIBIT A ,.I~~1►.~~y~ ~ - ~tri~~r 70 ~ AfT[r1TiONOi' DEPARTMENT OF THE ARMY SEATTLE DfS7RiCT, CORPS OF ENGINEERS P.O. BOX 3755 SEATTLE, WASHINGTON 98124-2255 OGT - 1 2009 Engineering Division 5teve Bleiiuhs River and F1♦oodplain Manager King Street Center 201 South Jackson Street, suite 600 Seattie, Washington 98104-3855 Dear Mr. Bleifuhs, ~ I am writing to provide the Corps of Engineers recommendations for the temporary mc-asure iristallation along the Green River levees. Installing temporary measures on these levees will not aftect the levee`s eligibility ii7 the Corps PL 84-99 Levee Rehabilitation progr.am. Recommendations: + Use flood respanse structures to raise low areas on tlie l.evices to prov? de 13,900 • cfs capacity wirh 3 feet of freeboard. • Temporary structures should be centered on the levee whenever possible. • Use temporary structures that have been used and tested by the Carps of Engi:neers. • Remove brush and trees that have been identified by the Corps as adversely affecting visual inspection, access, or structural stability of Che leve?. Any questicns regarding these recommendations, please contact Dennis Fischer, Levee Safety Program Manager (206) 764-3555 or Douglas T. Weber, P.E., Natural Disaster Program Manager, (206) 764-3406. Sincerely, Mark Ohlstrom, P.E. Chief, Engineering Division ~ O c m c ~ p ~ z D ~ - c ~ - i i- r ~ r ~ ~ > D z - -I = ~ _ D 0 ~ ~ m z r r m z C m ~ rn ~ q m ~ m ~ z Oo -I N 1- ~ 00 O GJ C31 ~ 00 CF) N O r r m z C K m G) m ~ ~ m m N o cr o ~ ~ Z n lp:, ~o w N ~ ~ ~ m ~ rn ~ ~ n ~ O O d~ N O = ~ z ° ~ rn o ~ ~ ~ o D ~ C r ~ ~ 0 Z vo ~ r rn z ~ ~ _ rn ic m X G) rn z 0 ~ r m < rn m U) m C) Z rn z "'I rn X _ 00 - ~ 00 - - ~ ~ 0 ~ ~ a Q~ , W ~ oC Z Z W H o ~ aN ~c c a) ~ ME I ray L ~ ~ _ U ~ rn . _ ^ C i.V Z ;4 Y K ~ O U 0 ~ U I ~ 3 I L o ~ a I i ~ ' z ' 1 - , - I i i I ~ . I ~ I Il - I - -J ~ m ~ I F ~ ' . I - - ~ ~ p r/ / f I i ~ / , p Y y t . ~ - ~ - ~ 0 C ~0#,y~~~ ~ (1-51i~.I ~ . r r, - 17 . S ~ y_~'f~~ ~ ~I r, $p 1 I y Lj ~ ~ " ~ ' , y ~ , 1 ' t~,r a:% t ~ - ~~i = - _ ° - - _ Ilp , ; u - • i ~ ~ ~ t2 o - ~ ~ O L (Jl ~I i i ~ _ • ' ' ~Ta Q!1 . I - , i - i I/J~ CL ~ c I 1 I ~;i~~~ C C O ]C~~ - ~ ' - L e ~ 11 1 . . . . . ~ ~ , ' ~ - . . - . . 1 - I-- - ' ~ ' ' . o - . . . ~ ' - . ~ ^ U I i ~ ~ ~ , c. ' I .il J :1. f ; I l I ~ ~ ~~w^ . ~ ~ . . .1 5 r " F ~ ~1 ~ ' 1 ~ I ~ i - I ...I ~ = _ ^ _ •I I t ~ ~ f 1 i ~ I ~ i: f tg~~ r i ~ 11 r7 r4 ~ b ~ f rJs Y r~ ~ _ ~ i ? f - - - - _ I I e m o_ . ~ ~ - - - - - _ _ - - ~I!~ FXHiRiT C'' Work to be performed will consist of raising existing levees and related flood confinement structures and measures shown in Exhibit "B" (collectively, "the Levees") to an elevation sufficient to provide up to three (3) feet of freeboard over and above the modeled water surface elevation for a flow of 13,900 cfs in the Green River, measured at the Auburn Gauge. Structures and measures employed to raise the Levees to the targeted freeboard elevations shall consist of various combinations of sandbags, earth fill berm structures, and various proprietary emergency flood containment structures, including but not limited to Hesco Barriers, SuperSacks or equivalent emergency flood containment bulk bag container units. Materials and placement for earth fill berm structures shall conform to specifications set forth in the United States Army Corps of Engineers' Engineering Manual EM-1110-2-1913. Each sandbag employed shall be filled and placed in accordance with procedures set forth in Corps of Engineers guidance brochures and informational videos located at http://www. nws. usace. army. mi 1/PublicMenu/Menu.cfm?sitename=em&pa,gename=Floodfi Proprietary structures for emergency flood containment shall be filled and placed on the Levees in accordance with the manufacturer's specifications for their use. Subgrade preparations shall be provided in accordance with the manufacturer's recommendation for placement of the structures. Materials used to fill the structures shall be of a character, gradation, sort, classification, and moisture content within the range(s) recommended by the manufacturer for this use. Placement and compaction of materials within the structures shall be as specified and recommended by the manufacturer. In addition, all proprietary structures provided to the Cities and to the County by the Seattle District Corps of Engineers shall be filled and placed on the Levees consistent with any recommendations and specifications provided by the Seattle District Engineer and his designee(s). Any questions by any of the Parties to this Agreement concerning the proper preparation, placement, or use of any structure or measure used to raise the Levees shall be promptly brought to the attention of all other concerned parties, including but not limited to the affected City and the County, and shall and be resolved subject to the terms of thi& Agreement. All questions or concerns regarding the proper use, placement, or operation of any Levee raising measure involving a proprietary flood containment structure shall be jointly discussed by all concerned parties. EXHIBIT D City Contracts for Flood Protection Measures