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Home My WebLink About5769 RESOLUTION NO. 5769 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF AUBURN AND KING COUNTY RELATED TO THE RAPIDRIDE I LINE PROJECT WHEREAS, King. County (County) is planning, designing, constructing, and implementing the RapidRide I Line bus rapid transit ("BRT") project, which will upgrade the County's existing Route 160 bus route to connect the cities of Auburn, Kent, and Renton between the Renton Transit Center and the Auburn Sounder Station via the Kent Sounder Station (the "Project"); WHEREAS, as part of the project, the County will construct transit improvements including upgraded passenger facility stations and amenities, off-board fare payment, speed and reliability improvements, and pedestrian access improvements, such as bus shelters, roadway widenings, turn lanes, and other street improvements (collectively, the "Project Improvements"); WHEREAS, the County proposes to build some of the Project Improvements in the City's right-of-way ("ROW"), while others will be constructed on private property that the County will acquire for the Project and dedicate as City of Auburn (City) ROW; WHEREAS, the Project Improvements, the property to be acquired and dedicated, and their respective locations are depicted in plans approved under City Public Facility Extension Permit#FAC 22-0022; Resolution No. 5769 May 15, 2024 Page 1 of 3 Rev.04/24 WHEREAS, as part of the Project, the County is required to enter into a Developer Public Facility Extension Agreement, and to obtain a Right-of-Way Use Permit for the ongoing maintenance of any structures or improvements installed within the ROW; WHEREAS, because the Project Improvements will be funded, in part, by Federal Transit Administration ("FTA") grants, federal law and FTA grant terms require the County to maintain continuing control over the project property and improvements, which must remain available to be used for appropriate transit purposes for the duration of their useful life or until disposition; WHEREAS, the Parties desire to enter into an Agreement to memorialize the process by which the County will acquire and/or improve and dedicate property as City ROW, and the conditions and requirements arising from FTA grant terms and guidance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RESOLVES as follows: Section 1. The Mayor is authorized to execute an Agreement between the City and King County, which agreement will be in substantial conformity with the agreement attached as Exhibit A. Section 2. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Resolution No. 5769 May 15, 2024 Page 2 of 3 Rev.04/24 Section 3. This Resolution will take effect and be in full force on passage and signatures. Dated and Signed this 3rd day of June, 2024. CITY OF AUBURN irlicIN‘ NANC t A �'. US, MAYOR ATTEST: APPROVED AS TO FORM: Shawn Campbell, MMC, City Clerk Dou uth, Acting City Attorney Resolution No. 5769 May 15, 2024 Page 3 of 3 Rev.04/24 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Ul King County METRO Moving forward together Capital Division Capital Delivery Section 201 S.Jackson Street KSC-TR-0435 Seattle,WA 98104-3856 MEMORANDUM OF AGREEMENT BETWEEN CITY OF AUBURN AND KING COUNTY This Memorandum of Agreement("Agreement") is made by and between the City of Auburn, a Washington municipal corporation(the "City"), and King County, a home rule charter county and political subdivision of the State of Washington(the "County"), each of which may be referred to herein as a"Party" and collectively as the"Parties." RECITALS A. The County is planning, designing, constructing, and implementing the RapidRide I Line bus rapid transit("BRT")project,which will upgrade the County's existing Route 160 bus route to connect the cities of Auburn,Kent,and Renton between the Renton Transit Center and the Auburn Sounder Station via the Kent Sounder Station(the"Project"). B. The improvements to be constructed as part of the Project include upgraded passenger facility stations and amenities,off-board fare payment,speed and reliability improvements, and pedestrian access improvements, such as bus shelters, roadway widenings, turn lanes, and other related street improvements (collectively, the"Project Improvements"). C. The County proposes to build some of the Project Improvements in the City's right-of-way ("ROW"),while others will be constructed on private property that the County will acquire for the Project and dedicate as City ROW. D. The Project Improvements,the property to be acquired and dedicated, and their respective locations are depicted in plans approved under City of Auburn Permit#FAC 22-0022. E. The County's construction and dedication of property and improvements as part of the City's public rights-of-way is subject to the additional requirement to enter into a Developer Public Facility Extension Agreement, and to obtain a Right-of-Way Use Permit for the ongoing maintenance of any structures or improvements installed within the ROW. F. The Project Improvements are to be funded, in part, by Federal Transit Administration ("FTA") grants. Federal law, regulations, and FTA grant terms and related guidance, including FTA Circular C 5010.1.E, require the County to maintain continuing control of FG: 102322568.2 MOA,Page 1 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 the use of property and improvements acquired or constructed with FTA funds, to the extent satisfactory to FTA. The project property and improvements must remain available to be used for appropriate transit purposes for the duration of their useful life or until disposition. G. The Parties desire to enter into this Agreement to memorialize the process by which the County will acquire and/or improve and dedicate property as City ROW,and the conditions and requirements arising from FTA grant terms and guidance. AGREEMENT NOW, THEREFORE, the above recitals that are incorporated herein as if fully set forth below, and in consideration of the terms, conditions, covenants and performances contained herein, the Parties agree as follows: 1. Acquisition and Dedication of Property and Construction of Project Improvements. A. The County shall be solely responsible for the acquisition of any real property or interests therein needed for the Project within the City of Auburn, including but not limited to any property that will eventually become City ROW. The County will carry out such acquisition activities in conformity with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. §4601, et. seq.) ("the Act") and all other applicable federal, state, and county laws, and will be responsible for providing any relocation assistance required by the Act and such other laws. B. Prior to issuance of a Notice to Proceed for construction of the Project, the County will convey to the City by Statutory Warranty Deed, in substantially the form attached hereto as Exhibit A, the real property depicted and described in City of Auburn Permit#FAC 22- 0022. C. Prior to issuance of a Notice to Proceed for construction of the Project, the County will obtain City approval and execution of a Developer Public Improvement Facility Extension Agreement ("FEA" or "Extension Agreement") in substantially the form attached hereto as Exhibit B, and pay all fees required therein. D. Prior to issuance of a Notice to Proceed for construction of the Project, the County will obtain a Right-of-Way Use Permit from the City under Ch. 12.60 of the Auburn City Code, and keep said permit in force and effect for the useful life of the Project Improvements. E. The County will construct the Project Improvements on real property acquired as part of the Project and described in City of Auburn Permit #FAC 22-0022 and on existing City ROW. 2. City / County Control of Project Improvements. To enable the County to demonstrate satisfactory continuing control of the Project Improvements constructed with FTA funds, the FG: 102322568.2 MOA,Page 2 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 • County intends to utilize Project Improvements constructed with FTA funds for transit functions and purposes throughout their useful life or until their disposition. As part of its operation and/or maintenance of public rights-of-way, the City may require the County to modify or relocate Project Improvements at the County's expense or, in the City's discretion the City may relocate or modify Project Improvements or permit the modification or relocation of Project Improvements within the City ROW at its own expense by third parties. In all such cases, the City and County shall coordinate to ensure that the modified or relocated Project Improvements support continued transit service, amenities, and access in such a way as to ensure no negative impact on the transit services or activities improved by the Project. 3. Term of Agreement: Unless otherwise provided herein, the term of this Agreement shall commence on the date that all Parties have signed it,and may only be terminated if both Parties agree in writing signed by an authorized representative of each Party. 4. Indemnification and Waiver: The Parties shall protect, defend, indemnify, and hold harmless the other Party and its officers, officials, employees, contractors, subcontractors, consultants, and/or authorized agents,while acting within the scope of their employment as such,from any and all costs, claims,judgements, and/or awards of damages(both to persons and/or property), arising out of, or in any way resulting from, that Party's obligations performed or to be performed pursuant to the provisions of this Agreement. Neither Party shall be required to indemnify, defend, or hold harmless the other Party if the claim, suit, or action for injuries, death, or damages (both to persons and/or property) is caused by the sole negligence of the other Party. Where such claims, suits, or actions result from the concurrent negligence of the Parties, their officers, officials, employees, contractors, subcontractors, consultants, and/or authorized agents, and/or involve those actions covered by RCW 4.24.115, the indemnity provisions provided herein shall be valid and enforceable only to the extent of the negligence of the indemnifying Party, its officers, officials, employees, contractors, subcontractors, consultants, and/or authorized agents. The Parties agree that their obligations under this Section 4 extend to any claim, demand, and/or cause of action brought by, or on behalf of, any of their officers, officials, employees, contractors, subcontractors, consultants, and/or authorized agents.For this purpose only,the Parties,by mutual negotiation,hereby waive,with respect to the other only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 RCW. This indemnification and waiver shall survive the termination of this Agreement. 5. Dispute Resolution: If a dispute between the Parties arises from this Agreement, the Parties agree to elevate the dispute for negotiation at the management level to resolve any issues. Should such negotiations fail to produce a satisfactory resolution, the Parties agree to participate in mediation before proceeding to any other legal remedy. Each Party shall be responsible for its own mediation fees and costs, except that the Parties agree to share the cost of a mediator equally. 6. Designated Representatives;Notice: All notices,requests,demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for by the Party to whom said notice or other communication shall have been directed, or(ii)mailed by certified or registered mail with postage prepaid, on FG: 102322568.2 MOA,Page 3 of 31 DocuSign Envelope ID:0DA37BB4-3E81-4F16-919E-B060CF969421 the third business day after the date on which it is so mailed. Notwithstanding the foregoing sentence, a Party may provide notice electronically via the email addresses listed below with delivery confirmation or read receipt(or both). A Party providing electronic notice shall bear the burden to prove the date that notice was delivered. Auburn Designated Representative: Jacob Sweeting, City Engineer City of Auburn 25 West Main Street Auburn, WA 98001 Phone: 253-804-3118 Email:jwweeting@auburnwa.gov Metro Designated Representative: Janine Robinson, Project Manager King County Metro KSC-TR-0431 201 S Jackson Street Seattle, WA 98104 Phone: 206-477-7563 Email:janirobinson@kingcounty.gov 7. Governing Law; Venue: This Agreement shall be construed and enforced pursuant to the laws of the State of Washington, without giving effect to its conflicts of law rules or choice of law provisions. If either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, then the Parties agree that any such action or proceedings shall be brought in King County Superior Court. The Parties agree that each Party shall be solely responsible for payment of its own attorneys' fees, witness fees, and costs. 8. Legal Relations: This Agreement is solely for the benefit of the Parties hereto and creates no right, duty,privilege, or cause of action in any other person or entity not a party to it.No joint venture or partnership is formed as result of this Agreement. No employees or agents of one Party or its contractors shall be deemed, or represent themselves to be, employees of the other Party. 9. Records: All records for work authorized by this Agreement shall be held and kept available for inspection and audit by the Parties and the Federal government for a period of six(6)years from the date of termination of this Agreement or the date of any final payment authorized under this Agreement, whichever is later. Each Party shall have the right to fully access and examine said records during normal business hours and as often as it deems necessary. If a Party requires copies of any records from the other Party, the requesting Party agrees to pay the reasonable costs thereof. In the event of litigation or claim arising from the performance of this Agreement,the Parties agree to maintain the records and accounts until such litigation, appeal, or claims are resolved. The provisions of this Section 9 shall survive the termination of this Agreement. FG: 102322568.2 MOA,Page 4 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 10. Amendment: Any changes to the terms of this Agreement must be mutually agreed upon the Parties and incorporated by written amendment to this Agreement. Any amendment will not be binding or valid unless signed by persons authorized to bind the County and the City, respectively. 11. Severability: If any section, term, or provision of this Agreement is determined to be invalid, then the remainder of this Agreement shall not be affected and shall continue in full force and effect. 12. Independent Contractor: The Parties shall be deemed independent contractors for all purposes, and the employees of the Parties or any of their contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be employees of the other Party. 13. Authorization to Sign: The undersigned acknowledge that they are authorized to execute this Agreement and to bind their respective agency to the obligations set forth herein. 14. Counterparts: This Agreement may be executed in counterparts and each counterpart constitutes an original document. A Party may deliver executed signature pages to this Agreement by PDF, DocuSign, or other electronic means to the other Party, which PDF or other electronic copy shall be deemed to be an original executed signature page. IN WITNESS WHEREOF, each Party has caused this Agreement to be executed effective as of the date and year set forth below. KING COUNTY METRO CITY OF AUBURN DocuSigned by: p-DocuSigned by: DS Mc�u,� L al�,�saw vr hFG11G 9AII1 r. i9 y' t 7C... King County Metro General Manager City of Auburn Mayor Dated: 6/21/2024 Dated: 7/3/2024 FG: 102322568.2 MOA,Page 5 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 EXHIBIT A Statutory Warranty Deed Template FG: 102322568.2 MOA,Page 6 of 31 Docusign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Return Address: City of Auburn City Clerk 25 West Main Street Auburn,WA 98001-4998 Above this line reserved for recording information RIGHT OF WAY DEDICATION DEED FAC22-0022 Referen #(i appli'able): N/A to Bo ower: TBD Gr tee/, sig ,eBe•of• ary: City of Auburn L.:. Des. 1. 'on/S 'C: '/a Section—Section XX—Township XXN—Range XE As - sor' ax 'arce l e#: 'arcel Number The Grantor(s), , +r an in on ' eratio of ten dollars, and other good and valuable consideration, in hand paid, +edi at- and cove o the Grantee, CITY OF AUBURN a municipal corporation of the S .to as ingt. , s righ. of way, public street and public utility purposes, to the same effect as • .c. • e. . emin: t do •ain under the laws of the State of Washington, the following describe. •-al property: A Right-of-Way described as follows: Situated in the Coun of 'rig, State of Washington. SEE EXHIBITS 'A' AND `B' ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. The above-described and dedicated rights are consistent with Section 2 of that Memorandum of Agreement between the City of Auburn and King County, dated ----, regarding real property acquired for the RapidRide I Line BRT project, a federally-funded mass transportation improvement project. Right of Way Dedication Deed Page 1 of 4 MOA,Page 7 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Dated this day of , 2018 Grantor STATE OF WASHINGTON) ) ss COUNTY OF KING ) I certify that I know or have satisfactory evidence that and is/are the person(s) who appeared before me, and said individual(s) acknowledged that he/she/they signed this instrument and acknowledged it to be his/her/their free and voluntary act for the uses and purposes mentioned in this instrume Dated . , 'ubli and ►8r the State of Washington in' epoi f!t pire /tlb File: ENG-169,Revised 5/18 Right of Way Dedication Deed Page 2 of 4 MOA,Page 8 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060GF969421 EXHIBIT 'A' Right of Way Dedication Deed Page 3 of 4 MOA,Page 9 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 EXHIBIT `B' a Right of Way Dedication Deed Page 4 of 4 MOA,Page 10 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 EXHIBIT B Template FACAgreement FG: 102322568.2 MOA,Page 11 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Return Address: City of Auburn City Clerk 25 West Main Auburn,WA 98001 ove t• s 1': rese ed for recording information. DEVELOPER P ':LI . F Y EXTENSION AGREEMENT PROJECT NAME FACXX-XXXX Reference#(if applica. e): IA GrantorBorrow: : gal 0 er Grantee/Assignee/Beneficiary: Ci f Aub Legal Description/STR: '' Section—Section— ownship— 'ange Assessor's Tax Parcel ID#: Tax Parcel numb. *k CITY OF * ./� AU ARB-4tN 1JWAASJHINGTON City of Auburn Public Works Department 25 West Main St. Auburn, WA 98001-4998 (253) 931-3010 Agreeme-r t for Developer Public Facility Extension - FAG20-00xx Name Date,2022 Page 1 of 20 ENG-053,Revised 10/23 MOA,Page 12 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 AGREEMENT for DEVELOPER PUBLIC FACILITY EXTENSION FACILITY EXTENSION NUMBER: FACXX-XXXX The CITY of AUBURN("City"), and KING COUNTY, a home rule charter county and political subdivision of the State o "• ashington, by and through its Metro Transit Department ("Developer"), enter into t•• Deve . .er Public Facility Extension Agreement("Agreement").The City and Developer(ea. ,a"': , " • d collectively,the"Parties"),make the following expressed mutual promises a • cov- ega ding the Developer's proposed Developer Public Facility Extension("Ext> sion" The City agrees to a• ept the ►d • • port•. ' of e Extension for operation and maintenance if the Developer, at the Deve oper': expen' %esi L s, constructs the Extension and conveys and transfers the public portio : oft : i xtension . the City pursuant to the terms and conditions of this Agreement. This Agree u.: t i.. val.: ..- . bindi : z the Extension designated in the Plans as defined in Section II and as su ariz:. belo • Fac . xte sio , Su s II Public facilities (Public Extensio• : • XX LF of sanitary sewer; C• XX LF of watermain— • XX LF of storm �• XX street improvements LOL 1 -traffic signal • t1 - sanitary sewer lift station • Any other associated proposed or relocate ublic facilities shown in the Plans Private facilities: • XX LF of private street 1. XX LF of private street storm `• Private Landscaping and Restoration/Mitigation of Critical Areas • Any other associated proposed or relocated private facilities shown in the Plans Final Extension content and quantities may vary from those summarized above and shall be based on the As-Built Records as defined in Section XIII. Agreement for Developer Public Facility Extension -- FAC20-00xx Name Date,2022 Page 2 of 20 ENG-053,Revised 10/23 MOA,Page 13 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 I. EXTENSION FEE Extension fees are determined based on the City's Fee Schedule in effect at the time this agreement is executed and based on the Scope of Work identified in the final Approved Plans. The total extension fee is to be paid in full by the Developer to the City prior to, or with, the execution of this agreement. This fee pays for the p-:- it a• • finis, ation, plan review and coordination, field inspections and other City Administr: we c• s a,cruel during this project as described in the City's Fee Schedule. The fee is based t the al a: •rov;d ph,:s and the Construction Period. The Parties agree that the City may req.'re a. •i •: al f-•s ' e ' • •rovement quantities increase from those shown in the final Approve. 'lans, if t• D velo.-r ex,eeds the Construction Period, if the Developer's work is incomplete or • - en : d re•i' add ional or re-inspection, or if the City incurs costs to obtain consulting suppo :ervic.- to . 1st t - City in its review, administration, and inspection of the Extension for Exten '.n •r.tha. 's ._ ,and the _ ity's normal area of expertise or the City's ability to review within a rea ona e ti► e. Furthermore, the Developer is re •t •:'. e to ee associated with the Valley Regional Fire Authority's (VRFA)review of plan as r-ques by 4 e Ci e City will allocate these fees as established by the Auburn Fee Sched e. II. PLANS The Plans, as made part of this agreement by re - -nce inc de the f lowin items: • Construction Drawing Set Titled: FAC20-XXXX, TITLE ON THE PLAN SET] as signed and approved by the City on LIST DATE OF PLAN SIGNATURE • Stormwater Pollution Prevention Plan(SWPP d ed LIST DATE • Stormwater Site Plan(SSP) dated LIST DATE • City of Auburn Construction Standards Parts 1 and 2 • City of Auburn Design Standards • Standard Specifications for Road, Bridge, and Municipal Construction, Washington State Department of Transportation Standard Plans Any inconsistencies in the parts of the Plans will be resolved by the Parties in the order of precedence as listed above. Unless otherwise noted in the Plans, documents and standards incorporated into the Plans by reference will be the versions of said documents and standards that were/are current as of the Effective Date of this Agreement. The Developer will carefully study and compare all plans and specifications and other documents and will, prior to ordering materials or performing work, report in writing to the City any error, inconsistency,or omission in respect to the plans and specifications,or mode of construction which Agreement for Developer Public Facility Extension FAC20-00xx Name Date,2022 Page 3 of 20 ENG-053,Revised 10/23 MOA,Page 14 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 it discovers. If the Developer, in the course of this study or in the accomplishment of the work, finds any discrepancy between the plans and specifications and the physical condition of the locality as represented in the plans and specifications,it will be the Developer's sole duty to inform the City immediately in writing, and the Developer will promptly investigate. Changes or Deviations from the Plans (including the addition of phasing plans) will require the Developer to prepare and sub rt evised and/or additional Plans for City review. The Developer will pay all fees as indic. ed on t e City Fee Schedule that are applicable to the review and administration of the p .pose. -visi. s and additions at the time the revised or additional Plans are submitted to th- ity .r re ew. Any revised and/or additional Plans are made part of this agreement by re renc- •n ap• oval $ it ature(s)by the City AND,in cases when the revised and/or additional 'lans • : • d m•ii , he E .-nsion parameters used to determine the Extension Fees, an amendmen to this .i e- ent '- -xec ed that revises the Extension Fees to reflect the Extension Parameters as mod' -ed by t ised and/or additional Plans. If design or construction ac 'v' 'es on th- = -nsion s .;come inactive on the Developer's part for a period of six months,the City ;ay r-•uire - i evelop- revise the Plans to conform to existing field conditions, or to meet cu -nt ' it • d. ds and regulations. The City may also require the execution of a new A Iv• -ment, i • ch ase, t ' Agreement will become null and void. III. PUBLIC RIGHT-OF-WAY AN P EA' At the Developer's expense,the City may requi - = I ev- • :er to s cure . d dedicate certain real property to the City as street right-of-way an. or easements. O. receipt •f a certified legal description(s) and exhibit(s)of street right-of-way and/or ease , is fr• the ►.eveloper,prepared by a licensed land surveyor or registered professional engine' ,the ' ty wi prepare the necessary agreements, right-of-way dedication deed, easements, • • real state excise tax affidavit for the Developer's signature. The Developer will provide the •. with a title report for the parcel(s) from which easements and/or right-of-way are being dedicated. Dedications will be free from encumbrances, except as approved by the City as noted on a Title Exceptions Report provided by the Developer with City Approval. The Developer will provide the City with title insurance policy(s)for right-of-way dedications in the amount of$50.00 per square foot of right-of-way area dedicated or other amount as proposed by the Developer and accepted by the City Engineer. The Developer will execute and provide all required documents for street right-of-way dedication and/or easements prior to the start of construction of the Extension. Where the Extension work includes the construction or use of private access tract(s), roadway(s), and/or private storm facilities on property not owned by the Developer, the Developer is responsible for securing all required property rights needed to construct, maintain, and utilize the private facilities. The Developer will provide documentation to the City to verify all necessary private property access,use, and construction rights. Agreement for Developer Public Facility_Extension,_7.FAC20=00xx Name Date,2022 Page 4 of 20 ENG-053,Revised 10/23 MOA,Page 15 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 The street right-of-way dedication and any easements dedicated from someone other than the Developer will be recorded by the City prior to start of construction and the easement documents dedicated by the Developer will be held by the City until construction completion at which time the Developer will modify the documents as needed to reflect as-built conditions and re-submit to the City for review, approval, and recording by the City. The Developer will execute .. • he City will record as applicable, easement and maintenance agreements for stormwate acilitie ,critical areas, and planting areas as determined to be required by the City. IV. PAYBA' A ' ► N Developer agrees t t the exte• io' wor ' no eligible for payback and waives any and all rights or claims relate. . . pa •ack a:, y ent or the FAC extension work. V. PERFORMANC 6 GU 1f E This section does not apply whe- the i eve t .eris , pub 'c agency. Before the City issues a Notice to ' .cee.,th- ►eve .per ' •- required to furnish an approved Performance Guarantee based on one un• ed tw: ty-f ,e perce (125%) of the City-estimated installation costs for the public improvem: is c.ns �•cted '1 .'n t' - existing and new right-of- way or when the City Engineer deems it t. se n e City's •est ..• -•- t to secure a Performance Guarantee. Two forms of Performance Guarantees are acceptable: 1)a Perfo .•. ce :and . 2)an Assignment of Funds. The City Engineer may authorize another form of '.erfo • an.- :uarantee if the City Engineer determines that the proposed guarantee will prov'•e an :•uivalent level of security. The Developer may designate an Agent to provide the requi -d Performance Guarantee to the City but the Developer will remain responsible for the contractual obligations set forth in this Agreement. The Performance Bond will be issued in a penal sum equal to a minimum of the amount described above and will be conditioned on the performance by the Developer of all undertakings,covenants, terms, and conditions of the Agreement relating to the Extension. The Developer or Developer's Agent will execute that bond and a corporate bonding company licensed to transact that business in the State of Washington, and who are named on a current list of surety companies acceptable as published by the Insurance Commissioner's office, will act as surety. The Developer will bear the expense of the bond. If at any time a surety on any bond is declared bankrupt, loses its right to do business in the State of Washington, or is removed from the list of approved surety companies,the Developer will substitute an acceptable bond or bonds in the form Agreement for Developer Public Facility Extension -i FAC20-00xx Name Date,2022 Page 5 of 20 ENG-053,Revised 10/23 MOA,Page 16 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 and sum and signed by another surety or sureties as may be satisfactory to the City. The Developer will pay the premiums on that bond or bonds. The Assignment of Funds will be in a required amount held in a Financial Institution acceptable by the City and secured under the use of the City of Auburn Standard Assignment of Funds form. VI. INSURANCE The City acknowledges, .grees and derstands that Developer maintains a fully funded self- insurance program fo• he p . ec ion . d handling of Developer's liabilities including injuries to persons and dam.:e to a •pert . Th; Cit acknowledges, agrees and understands that Developer is self-funded fo all o` •ts 1'. •ility -x•.sure' Developer shall, at its own expense,maintain through its fully fu ded self-in . a• e pro: . coverage for all of its liability exposures for this Agreement. Develop- •. pr. 'de t• wi h at least thirty(30) days prior written notice of any material change in Dev- a per' el --." ded nsurance program and shall provide the City with a letter of self-insur. e a .d•qu.te .r•• of coy-rage upon the City's written request for the same. The City further a o led;;es, agree d •erstands that Developer does not purchase commercial general li. •ility nsu - ce an is a :elf-insured governmental entity; therefore, Developer does not ha - v> . •ility e e Cit as an additional insured. Without limiting the foregoing paragra th• De - oper '11 cause its contractor (the "Contractor")to procure and maintain fort► du :do• of ' A_•ee -nt,insurance against claims for injuries to persons or damages to prop 9 -ich may 'se a • • , •r in connection with the performance of work by the Developer, the P velo.•is .ge• s, r-•rese atives, employees, and subcontractors. As between the Parties, the De - •per is responsible for th- cost of insurance. The Contractor's maintenance of insurance, its scope of coy- age, . d h s as required herein, will not be construed to limit the liability of the Deve a er t• he coverage provided by the insurance, or otherwise limit the City's recourse to any r- •e• available at law or in equity. The Contractor's required insurance will be of the types and coverage as stated below: A. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage will be at least as broad as Insurance Services Office (ISO) form CA 00 01.Automobile Liability insurance will include a minimum combined single limit for bodily injury and property damage of$1,000,000 per accident. B. Commercial General Liability insurance will be at least as broad as ISO occurrence form CG 00 01 and will cover liability arising from premises, operations, stop gap liability, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance will be endorsed to provide a per project general aggregate limit, using ISO form CG 25 03 05 09 or an equivalent Agreement for DeveloperPublic Facility,Extension - FAC20-00xx Name Date,2022 Page 6 of 20 ENG-053,Revised 10/23 MOA,Page 17 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 endorsement. There will be no exclusion for liability arising from explosion, collapse,or underground property damage. The City will be named as an additional insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured-Completed Operations endorsement CG 20 3710 01,or substitute endorsements providing at least as broad coverage. The ' • s for the Commercial General Liability insurance policy will be no less tha $1,00 , 00 each occurrence, $2,000,000 general aggregate, and a $2,000, pro. ►cts- mpleted operations aggregate limit. C. kers .mpe at', cove .ge as required by the Industrial Insurance laws of the to of W i•: on. O D. Builders R. k in ran = overin: '•sterests of the City, the Developer, Subcontractors, a • Sus-subco• • .ctors in the work. Builders Risk insurance is only required fo Ex• n •: i s tha 'ri cl 'e public buildings or public structures with an estimate s •alue of 100 :00 or ' ore, and as determined to be required by the City . . _ .1 eer. :u ers ': k in ranee will be on a special perils policy form and will insure :gain- th- I erils of I - and extended coverage and physical loss or damage in ludi-g sod, e. hi . ak- eft, vandalism, malicious mischief, and collapse. Th- ' ders ' 'sk rh'sur. • e 11 include coverage for temporary buildings, debris r- ova, and s.;• age to mate '..is in transit or stored off-site. This Builders Risk insur. ce covering the ,ork wi gave a deductible of $5,000 for each occurrence, which will be the espo.: •ilit of the Contractor. Higher deductibles for flood and earthquak- •erils ay b- accepted by the City based on a written request by the Develo.er . : written acceptance by the City. Any increased deductibles accepted by the • will remain the responsibility of the Contractor. The Builders Risk insurance will be maintained until the City has granted substantial completion of the project. Builder's Risk Insurance will be written in the amount of the completed value of the project with no coinsurance provisions. The Contractor's Automobile Liability, Commercial General Liability, and Builders Risk (if required) insurance policies will be primary insurance as respect to the City. Any Insurance, self- insurance, or self-insured pool coverage maintained by the City will be in excess of the Contractor's insurance. The Contractor will assume full responsibility for all loss or damage from any cause whatsoever to any tools,Developer's employee owned tools,machinery, equipment, or motor vehicles owned or rented by the Developer or the Developer's agents, suppliers, contractors, or subcontractors as well as to any temporary structures, scaffolding, and protective fences. Agreement for Developer Public.Facility Extension ; FAC20-00xx Name Date,2022 Page 7 of 20 ENG-053,Revised 10/23 MOA,Page 18 of 31 DocuSign Envelope ID:0DA37B134-3E81-4F16-919E-B060CF969421 The Developer and the City waive all rights against each other, any of their Contractors, Subcontractors, Sub-subcontractors, agents, and employees, each of the other,for damages caused by fire or other perils to the extent covered by Builders Risk insurance or other property insurance obtained pursuant to the Insurance Requirements Section of this Contract or other property insurance applicable to the work. Insurance is to be placed ' s with a current A.M. Best rating of not less than A: VII. Developer will cau - the .ntra• or tc furnish the City with original certificates and a copy of the amendatory en. :rsem ts, '•clud''g • • not necessarily limited to the additional insured endorsements, ev :enci _ e A . .•ile Li:bility and Commercial General Liability insurance before beginning . k. Be t e y e ure o loss may occur, the Developer will cause its Contractor to file with e C. a cop' . i the ':uilders Risk insurance policy that includes all applicable conditions,excl ions nitions,t; s,and endorsements related to this project. The City may request that the P-v- op: ca -= ' Contr. • to furnish certified copies of all required insurance policies, including e dors ents -quired 'n this contract and evidence of all subcontractors' coverage. The Developer will cause each an. : ,: Subc. tract. to • ovide insurance coverage that complies with all applicable requirement, of e P -velo•er-provided insurance, except the Developer will have sole responsibility for d: e • ning e ' it •f coverage required to be obtained by Subcontractors. The Develope , ' ens : tha he ' ' y i an additional insured on every Subcontractor's Commercial General ha:'lity' sur. • • polic using :n endorsement at least as broad as ISO Additional Insured endorsement G 20 38 04 13. The Developer will cause its Contractor to provide the Cit and . Addi 'onal Insureds for this work with written notice of any policy cancellation wit :n tw• •usiness days of their receipt of that notice. Failure on the part of the Developer to cause its Contractor to maintain the insurance as required will constitute a material breach of contract and the City may, after giving five business days' notice to the Developer to correct the breach take actions to protect the interests of the City,which may include, but are not limited to one or more of the following: order suspension of all construction activities,revoke permits issued to the Developer and its contractors,pursue remedy through the Contractor's surety, and terminate this FAC Agreement. VII. INDEMNIFICATION The Developer will defend, indemnify, and hold the City, its elected and appointed officials, employees, and agents harmless from any actions, causes of action, liabilities, claims, suits, judgments,liens,awards,demands,and damages of any kind including,property damage,personal injury, or death (including any claims brought by employees of the Developer or any ArTreement for Developer Public Facility Extension - FAC20-00xx Name Date,2022 Page 8 of 20 ENG-053,Revised 10/23 MOA,Page 19 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 subcontractor) arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. The City will be indemnified and held harmless for all expenses, costs of litigation, and reasonable attorney's fees, expert witness fees, and costs of services of engineering and other personnel related to any that action,or incident to establishing the right to indemnification, to the extent that claims arise from any negligent act or omission or willful misconduct of the Developer, Contractor, any subcontractor, or their employees arising out of, or i• 1' way related to, their performance of the Agreement, including without limitation the prov' ion of - ices,personnel, facilities, equipment, support, supervision, or reviews. If a court of co •eten • tion 'et--': es that this Agreement is subject to RCW 4.24.115 then, in the even •f lia: y for ges . ' ing out of bodily injury to persons or damages to property caused by ► resulti•: frt the 'nc ent negligence of the Developer and the City, its officer, officials, employees . •. volun 1V-s e li eveloper's liability hereunder will be only to the extent of the Developer' egli' ce. The II •veloper expressly waives any immunity under industrial insurance, wheth- si g • •• 'CW T. 1 entitled "Industrial Insurance" or any other statute or source solely for e b nefit o . e City a d solely to the extent of the indemnity set forth in this Agreement. M 's a. - has •v n ' tually negotiated by the Parties. The provisions of this action will survi e expi le' or ermin. 'on of this Agreement. VIII. CONSTRUCTION WORK The Developer will not start construction o " xte .'•n(s •rio • thz City's written issuance of Notice to Proceed.Notice to Proceed will n• be ' sue. •;or to t•e De loper satisfying all of the following: A. Extension Fee paid in full in accordance wit :ecti i I. B. All Developer provided plans submitted an,- .pproved by the City in accordance with Section II. C. Provide all street right of way and easement dedication documents in accordance with Section III, including, but not limited to, Stormwater Easement and Maintenance Agreement (SWEMA), utility easements, and easements for critical areas and plantings. D. Schedule and attend a Pre-Construction Meeting with the City that includes the Developer's General Contractor(s) and Subcontractors performing significant items of work, as determined by the City. The Developer must request a pre- construction conference a minimum of two weeks in advance of the pre- construction conference date. E. Provide a Performance Bond or Assignment of Funds to the City per Section V. Agreement for Developer Public Facility Extension_ FAC20-00xx Name Date,2022 Page 9 of 20 ENG-053,Revised 10/23 MOA,Page 20 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 F. Provide Certificate of Insurance to the City naming the City (and Developer if Contractor supplies insurance) as an additional insured per Section VI. G. Developer or its Contractor possess an Active Contractor's Labor & Industry license. H. Provide an - ergen• Call List for Contractor and Subcontractors. I. Obt. a B : nes Lie; se through the Customer Service Center for all contractors . ►. sub .ntrac •rs w en • king within the City limits. J. Obta,• Autho: e• ons •ctio Period for construction work to be completed within t e exis g publ t-o way(see additional information in Section VIII herein), if a, •licab -. K. For work outside •' Au'urn's C'-- imits, ..•equate County permits/approvals must be in place. Th Ci► ' appl r t:e right-of-way permit(s) once plans are approved. L. If sewer extension, King 9unty a - Wa -r T -atment Division approval is needed. The City will sub it fo- a• , oval, nce •1. e approved. M. Provide Proof of Contract f• N; -Cis 4 tility 'eloc:tes. The Developer acknowledges the obligation to e ter into a separa - contrac at the Developer's expense, to relocate Non-City utility facilities nece t► comply with City Standards where applicable. N. Obtain all necessary permits from the C • of Auburn and other agencies or jurisdictions. O. Obtain and furnish a written copy of all executed private easements,rights of entry, and/or agreements with other property owners related to the work to be performed, including modification and reconnection of existing utility services and/or property access. P. Submit and receive approval from the City on the following: Schedule of Submittals (utilizing City template), Initial Haul Routes, Initial Traffic Control Plans, and Preliminary Schedule(see Item K). The City may appoint Inspectors to assist in determining that the work and materials meet the Plan requirements and City standards. Inspectors have the authority to reject defective material and Agreement for Developer Public Facility Extension - FAC20-00xx Name Date,2022 Page 10 of 20 ENG-053,Revised 10/23 MOA,Page 21 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 suspend work that is being done improperly, subject to the final decisions of the Engineer. Inspectors are not authorized to accept work, to accept materials, to issue instructions, or to give advice that is contrary to the Plans. Work done or material furnished which is not in accordance with the Plans will be at the Developer's risk even if the Inspectors purport to approve the deviation from the Plans. Inspectors may advise the Developer of any faulty work or materials or infringements of the terms of this Agreement; however, failure of the Inspectors to advise the Developer does not constitute c tance or approval. All construction perfo ed by • - De_ eloper will be in compliance with the Plans,and City design and construction ndar. . 'he eveloper will be responsible for acquiring the City's Construction St dard . d h. ing co• z f the Standards and Plans on-site during construction. The Developer a ees t• -: ply i • .11 Fe• al, State, County, and City regulations. The Authorized Construc ion 'eriod i ime t•ame, in calendar days, in which the Developer will complete all Extensi• • wor., 'ncluding ► al clean up and all documentation required for extension acceptance as d-.c r•e• in "=- '•n IX. - City and Developer will determine the Authorized Construction Period . the .re-con •ction c• ference. The Authorized Construction Period will start when constructi o th- tensi• •e s,which will be within 10 business days of the City's issuance of Notice to .' oceed. .`i•e E ensio ork, including final clean up and all documentation required for exte• •. acc- •to• e, is of c► pleted within the Authorized Construction Period,the City may assess a.•itio ex • sio ees h• accordance with the City fee schedule and/or suspend all construction ' ork -x •pt the ' or re• •' ed to complete the public improvements and work to restore the right . ' .y. I .e p •lic • pro ements and right of way restoration is not completed within the time .eri s. de •-: abov i or i onstruction activities become inactive for more than 6-months, the Developer agre-: that the City may hire an independent contractor to complete the public improvements . d ' •t of ' ay restoration as deemed necessary by the City and bill the Developer for the :ctual •osts in urred or place a claim against the Performance Guarantee. The City has the authority to decide all questions regarding the quality and acceptability of the materials furnished and of the work performed for the construction of the improvements. The City will also have the authority to suspend construction work, in whole or part, for the failure of the Developer to carry out the work in conformance with the Plans. IX. ACCEPTANCE OF EXTENSION FOR OPERATION AND OWNERSHIP The City agrees to accept the Extension for operation and ownership based on approval of the completion of all Extension Work and the Developer has provided the following to the City: A. Approved Warranty Guarantee(see Section XI herein). B. As-Built Records and Related AutoCAD File(s) (see Section XIII herein). Agreement for Developer Public Facility_Extension FAC20-00xx Name Date,2022 Page 11 of 20 ENG-053,Revised 10/23 MOA,Page 22 of 31 Docusign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 C. Executed and recorded Public Utility Easements and Right of Way Deeds (see Section III herein). D. Approved Developer Contribution Document provided for all facilities (see Section XVII herein). E. Final Storm Wate '1. - Plan (Report) and Cover Letter. This letter will address any changes betwe> the p Sect's original storm water site plan (report) and the final constructio of d do etention and water quality facilities (See Section XIV herein). F. Paym- It of cabl- y -m de ; opment charges and paybacks. G. For complex ac' ' ies th ve lump stations and traffic signals, additional prerequisites t : hay• testing, tr, ning, operation manuals, component extended warrantees, etc., b- eq ' _ . H. Application and is u. 'e e rig : -w. use permit(s) or other applicable agreement(s) as neede• '•r any N b1 •ity • ned f- ilities constructed with the project that reside or encroach upz, •• - City ri.,t-of- . .y. On approval and acceptance, the City 11 s; d ; Fina A ept. ce letter to the Developer accepting the public extension for ownershi, : , oper. ion .. d, .• sub division projects, issue a Certificate of Improvements. For subdivisi. p :j ect e D- elop-. may request partial acceptance of the Extension work in accordance , ith Section X. For subdivision projects where the Extension includes publi treet 'ghtin_, the Developer agrees that it will be responsible for electricity costs for public s •-et lie - ing until at least 50%+ 1 of the lots in the subdivision are occupied and the Developer pr%v.A es notification to the City that this threshold has been met with a request to transfer the electric bill into the City's name. The City will release the Performance Guarantee, if applicable, to the Developer within 30 days of the letter of acceptance. X. PARTIAL ACCEPTANCE OF EXTENSION FOR SUBDIVISIONS On written request from the Developer and for subdivision projects only, the City may agree to partial acceptance of the Extension work and issue a Certificate of Improvements allowing the Developer to seek finalization of the subdivision, subject to the following requirements: A. Extension work within the existing right-of-way is complete. B. All underground utility Extension work is complete. Ag eement for Developer Public Facility Extension_ FAC20-00xx Name Date,2022 Page 12 of 20 ENG-053,Revised 10/23 MOA,Page 23 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 C. In the sole opinion of the City Engineer,only minor street construction Extension work remains to be completed, such as the final lift of asphalt, adjustment of utility castings to grade, installation of monuments,planting of street trees, etc. D. Developer provides the City with an assignment of funds, irrevocable letter of credit, bond, or other sec in lieu of completion for no less than 150% of the costs of the outstanding Ex • sion .rk as determined by the City,in accordance with Auburn City Code Sectio 17.1 4. 10. E. Con.' ions ► acc- anc: as • -d in Section IX (Items A thru H) have been satisfied for the xte ': wor, co• plete• .nd being accepted. F. The ability o e C. to m.4 an. operate the facilities being accepted without any restrictions (ac • s, et . .s determ'•ed by the City. Final acceptance of the improve, ents remain'•-. will b: in accordance with Section IX of this Agreement. XI. WARRANTY GUARANT The extension work performed under this gre: e, will an ed by the Developer during the Warranty Period, as defined herein, aga' .t .efect' e de' = e•ts, materials, equipment, and workmanship and will also include the 1. .sca-- est... ' e requ ed in the Construction Standards per Section 8-02.3(13) (Plant Estabh• ment). On rece': of no 'ce from the City of failure of any part of the design,material, equipment, or workm..•ship • •. 'ng e warranty period, the affected part or parts will be re-designed and/or replaced •,ith n., ma'• als or equipment by, and at the expense of, the Developer. Developer agrees ti start ork to remedy any defect within seven (7) days of written notice by the City and will ,o• plete the required work within a reasonable period of time. The warranty period for this project will be 1-year, except as noted herein, and will begin on the date the City has accepted all extension work as complete and final. When partial acceptance has been granted, the warranty period will not begin until all work is complete and accepted. If included in the Extension, the warranty period for the sewer lift station and traffic signal work will be 2-years. Before Final Acceptance by the City, the Developer will provide a Warranty Guarantee in the amount of two thousand dollars($2,000)or ten percent(10%)of the City's estimated replacement costs of the improvements, whichever is greater. Agreement for Developer Public Facility Extension - FAG0-00xx Name Date,2022 Page 13 of 20 ENG-053,Revised 10/23 MOA,Page 24 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Two forms of Warranty Guarantees are acceptable: 1) a Warranty Bond or 2) an Assignment of Funds. Any request to use other forms of Warranty Guarantee will be determined on a case by case basis by the City Engineer. The City Engineer may authorize another form of Warranty Guarantee if the City Engineer determines that the proposed guarantee will provide an equivalent level of security. The Developer may designa - a an Agent, a contractor or engineer, to provide the required Warranty Guarantee to t City. .• that event, the Developer will remain responsible for the contractual obligations :et fo 'n t . Agreement. If the Agent defaults on the Warranty Bond, this authorization fo• •esi a• .do of. ► Agent does not preclude the City proceeding to foreclosure or demanding fo•"eitur- of th- •and .ga' the Developer. As between the Pa 'es, the P -v- seer Al be.. the full expense of the bond. If at any time a surety on any bond is •ec are. •ankru. es it. right to do business in the State of Washington, or is removed from the Hs •f Su : ' compani-: acceptable on Federal bonds, the Developer will substitute or cause its Con .c •r t% sus- '-. e an ac - • able bond or bonds in that form and sum and signed by that other surety o sure es as • : .e satis•actory to the City. The Assignment of Funds will be ' • a requir o •t held ' a Financial Institution acceptable by the City and secured under the us- • e Ci o ubu► Sta and Assignment of Funds form. During this Warranty Guarantee period, e P -vel• .er w'll w: ant that the materials and equipment furnished by the Developer for t e E e !'on are'n n• orking order and condition except where abused or neglected by the Ci• e D- -lop- wi , . :ntee that it will repair or replace at its own expense any work or maten: t pro - o be • -fecti - during that warranty period. The Developer will be available approximately 60 calend..• days .rior to the expiration of the guarantee period to tour the project,with the City, in sup.•rt o e City's effort to establish a list of corrective work required under the guarantee. Not mor an 30-days prior to this inspection, the Developer will have all public sanitary sewer and storm lines cleaned and then inspected with a remote television unit by an approved firm, at the Developer's expense. The video will then be compared to the video made prior to acceptance to ensure that no substantial change has occurred. If the City determines that there are no defective design elements, materials, equipment, and workmanship the City will release the Warranty Bond. If the re-inspection determines that there are defective design elements, materials, equipment, and workmanship, the Developer will re- design,replace,or repair said Extension and the City,at its option,may extend the warranty period for that replacement or repair for up to 1-year. The City will release the Warranty Bond after the warranty period has expired and all extensions are determined by the City to not have defective design elements, materials, equipment, and workmanship. XII. TRANSFER OF PUBLIC PORTION OF EXTENSION TO CITY Agreement for Developer Public Facility Extension v FAC20-00xx Name; Date,2022 Page 14 of 20 ENG-053,Revised 10/23 MOA,Page 25 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Upon the City's issuance of Final Acceptance, the Developer agrees to transfer the title to the public portion of the Extension, as constructed and documented in the As-Built Records described in Section XIII of this Agreement, to the City by representing the following: A. The Developer is the lawful Owner of the public portion of the Extension and it is free from all encumbrances. B. The Developer as paid 11 bills for all labor and material used during construction of the Extensi• or h.: Ibtai ed lien waivers from all persons who have not been paid for their lab t or . eria C. The D;velo•: as th- ' to tra-sfer the public portion of the Extension to the City for the c••sideral t o inco atio into the City system. D. The Developer .ill w-, t the pu. is portion of the Extension and defend the same against lawful c .i rr s a,d d; --., •s of al :, sons for one year from the date of Final Acceptance by the C. , as describ-: m Secti•n IX of this Agreement. The City will record this Agreeme't • h th Ki t g Co ty 'ecorder's Office (for extension developments in King County), and the Piz ce •unt, Aud.tor •r extension developments in Pierce County). The Developer agrees to •efe•i t. • title .f t - Ci against claims of all third parties claiming to own the same or claimin i ,s , inter-.t or = cu ; ,e to the public portion of the Extension. XIII. AS-BUILT RECORDS Before the City accepts the public portion of the Extension for operation and ownership, the Developer agrees to provide the City with As-Built Records for all items listed under the Facility Extension Summary per the following: Step 1: Developer submits Construction Record Drawings (also referred to as Construction Redlines)per Section 1-05.18 of the Engineering Construction Standards in electronic PDF format. Step 2: Agreement for.Developer Public Facility Extension FAC20;00x e x Nam Date,2022 Page 15 of 20 ENG-053,Revised 10/23 MOA,Page 26 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 Once the City approves the Construction Record Drawings, the Developer uses the approved Construction Record Drawings to prepare and submit electronic As-Built Records in accordance with the City's Development Construction Record Documents Informational Brochure. XIV. FINAL STORM WATER SITE PLAN/REPORT The Developer will updat- e A. water site plan/report to reflect as-built conditions. The Developer will submit t► - fina to water site plan/report with a cover letter certifying that the final plan/report refl. t as-. • •ndi Sons. XV. RECORDER ! • • T '.. ' I MENTS Documents that are to be r•cord-• ill meet t• - following requirements: • Documents will e pe• City .1 dard do• ent templates. Developer requested modifications to es- e se • ates .,'del. the Construction Notice to Proceed and may not be accepte• the Ci.� • Documents will be •r• 'ded ••th e.' ab .. format (MS Word for legal descriptions,easements,dee• ,and uto ' D fore..ibits)and non-editable format (PDF). • All documents will be form.. e• to : 1/2 x 11 ch : : 2 x 14-inch paper size and have a minimum margin of 1• to., •tto an side Use of 8 '/2 x 14-inch paper size will be limited to e 'sit . ac = ts. • Any writing or markings, inclu•ing the notary s p, whit intrudes into the document's margin area, may be cause for the d: ume. o b- eturned. Original documents used for recording will not be sta• •d. • Documents will meet all other recording r:.•uire • -nts as specified the applicable County's Recorder's Office. XVI. SERVICE CONNECTIONS For subdivision projects, there will be no water meter installation, connection to, or usage of, the public portion of the Extension before the City accepts the Extension for operation and ownership or the City has granted Partial Acceptance that includes acceptance of the water and sanitary sewer (including side sewer connections) Extensions in accordance with Section X. For non-subdivision projects, water meter installation, connection to, and usage may occur after the completion and City acceptance of the water and sanitary sewer (including side sewer connections) Extension work,with approval from the City Engineer.The following items are required for the City to accept the water and sewer Extension work separate from the acceptance of other Extension work: Completion of all punch list/correction work for the water and sewer Extension work, Developer submittal and City approval of Construction Redlines for the water and sewer Extension work,and Developer submittal of accurate and executed easements for the water and sewer Extension. agreement for Developer Public Facility_Extension_FAC20-00xx Name Date,2022 Page 16 of 20 ENG-053,Revised 10/23 MOA,Page 27 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 The Developer will notify the City in writing of any intent to make service connections to the public portion of the Extension or any existing City system. Note that certain other utility permit fees and system development charges may be required prior to service connection. In addition, the City will supervise all service connections. Connections to and utilization o he public portion of the Extension will not relieve the Developer of the obligation to correc defe. s in labor or materials as provided in Section XI of this Agreement. All City-au •orize• co •ections will be subject to the control, use, and operation of the City, which will b- subj-' t• all regulations and conditions of service. XVII. DEVEL PE ' CO► RI 14 T 0 N I OCUMENTATION As per ACC 13.40.0- i . , tt=, stat - as o the actual cost of the public utility and street extension(s) will be provide, •y •e D ope prior to Final Acceptance on the City provided Developer Contribution D'cum; t 'orm. XVIII. SEPA REQUIREME S Nothing in this Agreement will be ons ued to 'mit t - 14 of Auburn's ability to require mitigation of any impacts of Develope s p •pose• .ctio' that ar- 'dentified in the SEPA process or to waive any of the City's authority to p •cee• in ., y wa, ,•der ,e SEPA process. XIX. AGREEMENT ALTERATIONS O ' I I i E IS No amendment,modification or waiver of any condition,provisio• or to o •is Agreement will be valid or of any effect unless made in writing, signed by the .'arty • '. ,': to be bound, or that Party's or Parties' duly authorized representative(s) and .ecify'-g with particularity the nature and extent of that amendment, modification or waiver. ' ' .fiver by either Party of any default of the other Party will not affect or impair any right arising " om any subsequent default. Nothing in this section XIX will limit the remedies or rights of the Parties under this Agreement. XX. ASSIGNMENT BINDING ON SUCCESSORS AND ASSIGNS Neither Party to this Agreement will assign any right or obligation under this Agreement in whole or in part, without the prior written consent of the other Party. No assignment or transfer of any interest under this Agreement will be deemed to release the assignor from any liability or obligation under this Agreement, or to cause any that liability or obligation to be reduced to a secondary liability or obligation. This Agreement is binding and the benefits and obligations provided for in this Agreement will inure to and bind the Parties and their respective successors and assigns,provided that this section Agreement for Developer Public Facility Extension -FAC20-00xx Name Date,2022 Page 17 of 20 ENG-053,Revised 10/23 MOA,Page 28 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 XX will not be deemed to permit any transfer or assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive benefit of the Parties and it does not create a contractual relationship with or exist for the benefit of any third party, including contractors, sub- contractors and their sureties. XXI. NO THIRD PARTY BENEFICIARIES This Agreement is solely the be•efit of the Parties and no third party will be entitled to claim or enforce any rights h- e and xce i t as specifically provided herein. XXII.WAIVE A failure by either '. to e -re' e its • _• is , der this Agreement will not preclude that Party from subsequent exercise of i : rights W1# ill I of constitute a waiver of any other rights under this Agreement unless stat, to b- at in wri ' g, signed by an authorized representative of the Party, and attached to the o -al / gre- • - . XXIII. GOVERNING LAW This Agreement and the rights of th= ' 'es ill . • con " ed d enforced in accordance with the Auburn City Code and the laws of the St.•e of as gton with ut giving effect to its conflicts of law rules or choice of law provisions. y s.it . sing .om . is a eement will be brought in the county where the project is located. The '. • 'es au •- tha. an .ph,able statute of limitation will begin to run on the final acceptance date o the 'xten '• or,i e Ci' declines to accept the extension, the date of the letter from the City dec fining to accept t xtensi• . XXIV. SEVERABILITY If any provisions of this Agreement or any provision of any document incorporated by reference are held invalid, that invalidity will not affect the other provisions of this Agreement that can be given effect without the invalid provision, if that remainder conforms to the requirements of applicable law and the fundamental purpose of this Agreement. To this end,the provisions of this Agreement are declared to be severable. XXV. ATTORNEY FEES In the event of litigation or other legal action to enforce any rights, responsibilities, or obligations under this Agreement, the prevailing party will be entitled to receive its reasonable costs and attorney's fees. XXVI. CAPTIONS, HEADINGS AND TITLES Agreement for Developer Public Facility Extension=FAC20-00xx Name Date,2022 Page 18 of 20 ENG-053,Revised 10/23 MOA,Page 29 of 31 r DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted for convenience of reference only and will not constitute a part of this Agreement or act as a limitation of the scope of the particular paragraph or sections to which they apply. As used herein, where appropriate,the singular will include the plural and vice versa and masculine, feminine, and neuter expressions will be interchangeable. Interpretation or construction of this Agreement will not be affected by any determinatio s o who is the drafter of this Agreement, this Agreement having been drafted by mutual a ement f the Parties. Each Party has had the opportunity to consult with its own legal cou 1 at i 1iwn ost and expense. XXVII. CO ;.0 An executed copy o this Agr*- shale r- orded among the land records of The King Pierce County Auditor or Recorder. XXVIII. ENTIRE AG' 1+ 'N This Agreement contains the -nth' u•:-rstan•. g • the Parties hereto in respect to the transactions contemplated hereby .,•,t uperset p:or agre ents and understandings between the Parties with respect to that subje• •:• er. Agreement for Developer Public Facility Extension—FAC20-OOxx Name Date,2022 Page 19 of 20 ENG-053,Revised 10/23 MOA,Page 30 of 31 DocuSign Envelope ID:ODA37BB4-3E81-4F16-919E-B060CF969421 IN WITNESS WHEREOF,the Parties below have executed this Contract. SIGNATORY CITY OF AUBURN DATE: cob :we- :,Assistant Director of Engineering/City Engineer SIGNATORY— DEVELOPER O DATE: Signature: Printed Name: Title: Agreement for Developer Public FacilityExtension - FAC20-00xx Name Date,;2022 Page 20 of 20 ENG-053,Revised 10/23 MOA,Page 31 of 31