HomeMy WebLinkAbout2143 - Washington State - Agreement - GMB 1117 MaintenanceGMB 1117
This Maintenance Agreement, hereinafter "Agreement:· is made and entered into between the
Washington State Department of Transportation, hereinafter "WSDOT;' and the C ity of
Marysville, Washington, hereinafter the "City;' hereinafter collectively referred to as the
"Parties" and individually as the ··Party."
RECITALS
1. A developer has constructed houses on a parcel. tax number 00590700005400.
h e reinafter "Kembers Court East or Kember"s Court East:· Another developer is
constructing houses on a parcel located south of Kembers Court East, tax number
00590700006701, hereinafter "Hunter's Landing:· Both parcels abut WSDOT State
Route 9 (SR 9) limited access right of way. hereinafter "SR 9 limited access right of
way:'
2. WSDOT has issued a stormwater discharge permit, Utility Permit (UP) 20591, to the
developer of Kembers Court East to allow installation of storm water facilities in the SR 9
limited access right of way at approximately Milepost (MP) 18.81 , as s hown on Exhibit
A (P . 1 of2). WSDOT will issue UP 20591 Addendum #O J to the developer superseding
UP 20591. See Exhibit B. WSDOT will grant a permanent access break to the City to
allow the C ity to maintain the stormwate r facilit ies from Kembers Court East into the
SR 9 limited access right of way.
3. The City recorded an easement fo r maintenance on the Kember·s Court East Plat. Tract
989. which includes a portion of the stormwater facilities , is subject to an easement that
grants the City an emergency and routine maintenance easement. Tract 990 contains an
easement to the City for ingress, egress and maintenance of the stormwater facility on
Tract 989.
4. WSDOT has issued a storrnwater discharge permit, S 1-19-1 2 , to the developer of
Hunter· s Landing to allow installation of storrnwater facilities in the SR 9 limited access
right of way at approximately MP 18 .71, as shown on Exhibit C (P. 1 of2). See Exhibit
D. The Hunter's Landing plat is not yet complete. However, the City commits to
obtaining a maintenance easement on the Hunter's Landing Plat with the same rights as
those granted to th e C ity on the Kember·s Court East Plat, or. in the alternative, the City
commits to taking full ownership of the lot containing the storm water facilities during the
plat process. WSDOT wi ll grant a permanent access break to the City to allow the City
to maintain the stormwater facilities from Hunter's Landing into the SR 9 limited access
right of way.
5. The City agrees, at its sole cost and expense, to maintain stormwater outfalls, pipes. catch
basins, trash racks and energy dissipation devices in the SR 9 limited access right of way
from Kembers Court East and from Hunter·s Landing. The City also agrees, at its sole
GMB 1117
Page 1of 8
ORIGINAL
cost and expense, to maintain the upstream sump in Kembers Court East and to maintain
the upstream sump in Hunter's Landing.
6. The City agrees, as part of its maintenance r espo nsibiliti es for the storm water facilities
from Kembers Court East and Hunter's Landing, that it will protect the SR 9 limited
access right of way from damage and/o r debris impacts at the City's so le cost and
expense.
NO W , THEREFORE, pursuant to RCW 47.28.140, the above recitals that are incorporated
he rein as if fully set forth below, and in co n si d eration of the term s, conditio ns , covenants and
performances contained herein, and the attached Exhibit A, Exhibi t B, Exhi bit C and Exhibit D
which are incorporated and made a part hereof
IT IS MUTUALLY AGREED AS FOLLOWS:
1. CITY MAINTENANCE RESPONSIBILITIES
1.1 City Maintenance Responsibilities for Kembers Court East Stormwater
Infrastructure
1.1.1 Th e City, at its so le cost and expense, agrees to maintain and repair all stormwater
faci lities from Kembers Co urt Eas t l ocate d in the SR 9 limited access right of way
in goo d condit ion , including th e stormwater discharge pipe and the splash pad,
and to maintain the upstream sump (which is locate d within the Kembers Court
East parcel), as shown approximately on Exhibi t A (P. 2of2), herein after the
"Kembers Co urt East Storm water Infrastructure."
1.1.2 The sp lash pad is located in th e existing SR 9 limited access right of way ditch.
The City, at its so le cost and expense, agrees it will n ot allow buildup of d ebri s o n
th e splash pad, and if such buildup d oes occur the City agrees to remo ve th e
d ebri s from the s plash pad and fr o m the surrounding SR 9 limited access right of
way.
1.1.3 The City , at its sole cost and expense, agrees to maintain the upstream sump
located within the Kembers Co urt East parcel. The s ump is on the up stream e nd
of the discharge pipe. Should th e up stream sump fail , the City agrees it will be
respon si ble for any and all damages, clean-up and restoration to th e SR 9 limi ted
access right of way that results from the upstream sump failure.
1.1.4 The City, at its so le cost and expense, agrees to provide all materials and labor
associate d with any modification, re placement, relo cati on , repairs , an d/or any
other incidental maintenance costs for the Kembers Court East Stormwater
infrastructure located in the SR 9 limited access ri ght of way.
GMB 111 7
Page 2 of 8
1.1.5 The City shall inspect the Kembers Court East Stormwater Infras tru cture at least
once per year.
1 .2 City Maintenance Re sponsibilities for Hunter's Landing Stonnwater Infrastructure
1 .2.1 The City, at its sole cost an d expense, agrees to maintain and repair all stormwater
facilities from Hunter's Landing located in the SR 9 limited access right of way in
good condi tion, including the side-drain connection (which consists of a 12"
storm drain p ipe and a catch basin), the rock pad outfall , and to maintain the
upstream sump (which is located within the Hunter's Landing parcel), as shown
approx imately on Ex.hi bit C (P. 2of 2), hereinafter the "Hunter's Landing
Storm water Infrastructure."
1.2.2 Water wi ll flow through the 12" storm drain pipe onto the rock pad outfall and
then enter the existing ditch in the SR 9 limj ted access right of way. The City, at
its sole cost and expense, agrees it will not allow buildup of debris on the rock
pad outfall , and if such bui ldup does occur the City agrees to remove the debris
from the rock pad outfall and from the surrounding SR 9 limited access right of
way. T he City's maintenance and repair responsibility includes the 12" storm
drain pipe and catch basin.
1.2.3 The C ity , at it s so le cost and ex p ense, agrees to m aintain th e upstream sump
located within the Hunter's Landing parcel. The sump is on the up stream end of
the discharge pipe. Should the upstream sump fail , the City agrees it will be
responsible for any and all damages, clean-up and restoration to the SR 9 limited
access ri ght of way that r esults from the upstream sump failure.
1 .2.4 The City, at its sole cost and expense, agrees to provide all materials and labor
associated with any modification, replacement, relocation, repairs , and/or any
other incidental maintenance costs for the Hunter's Landing Stormwater
Infrastructure located in th e SR 9 limited access right of way.
1 .2.5 The City shall inspect the Hunter's Landing S to rm water Infrastructure at least
once per year.
1.3 The C ity's maintenance respo n sibilities for the Kem bers Court East Stormwater
Infrastructure and the City's maintenance responsi biliti es for the Hunter's Landing
Stormwater Infrastructure are together hereinafter referred to as the "St ormwater
Infrastructure."
2. TRAFFIC CONTROL
2. 1 If it is likely that the City's work a uth orized under this agreement shall confl ict with,
impede or di srupt the SR 9 limited access right of way 's co n struc ti o n , operation and/or
maintenance, or endanger the safety of the traveling public, the C ity s hall s ubmit traffic
GMB 1117
Page 3 of 8
control plans to the WSDOT Construction Traffic Control Operations Manager for the
Northwest Region, for review and approval fourteen (14) working days prior to the start
of the City 's work. If WSDOT rejects the traffic control plans, WSDOT shall work
cooperatively with the City to develop acceptable plans.
2.2 The City agrees that all traffic control for work on the Stormwater infrastructure within
the SR 9 limited access right o f way shall be in compliance with the Manual on Uniform
Traffic Control Devices (MUTCD) and/or WSDOT's Work Zone Traffic Control
Guideline, M 54-44.
3. DEFICIENT MAINTENANCE
3 .1 in the event the City does not perform necessary maintenance and/or repair of the
Storm water infrastructure, WSDOT shall notify the City of the deficien cy in writing.
The City agrees to correct th e noted defici e ncy within thirty (30) calendar days of receipt
of notice. If the City cannot, with due dili gence, correct a deficiency within a period of
thirty (30) calendar days from receipt of WSDOT's written notice, the City may make a
written request of WSDOT for an extension of time, and WSDOT shall respond in
writing and either grant an extension o r deny the request. WSDOT shall not, without
good cause, deny such r equest.
3.2 In the event the City does not correct a deficiency within thirty (30) calendar days of
receipt of WSDOT' s notice, or within the WSDOT-approved extension of time, if any ,
WSDOT, in its sole discretion, may perform the needed work to correct the deficiency.
Such work may be accomplished by use of WSDOT personnel or a contractor, and if
such work i s performed to correct the deficiency, the C ity agrees to pay WSDOT for its
actual direct and related indirect costs in accordance with Section 6.
4. EMERGENCY MAINTENANCE
4.1 In the event of an emergency affectin g the Stormwater Infrastructure, the City shall
immediately perform emergency maintenance and/or repair to rectify the problem.
4.2 in the event WSDOT identifies a problem with the Stormwater infrastructure that
warrants emergen cy maintenance and/or repair, WSDOT shall notify the City and request
that the City address th e problem. The City agrees to perform the requested emergency
maintenance and/or repair as soon as practicabl e.
4.3 If the City is not available to perform the emergency maintenance and/or repair work to
address the WSDOT-identified problem, WSDOT reserves the right to perform the work.
Such emergency work may be accomplished by u se of WSDOT personnel or a contractor
and shall be at the expense of the C i ty , and the City agrees to reimburse WSDOT for th e
actual direct and related indirect costs in accordance with Section 6.
GMB 1117
Page 4 of 8
5. DAMAGE TO RJ GHT O F W AY
5.1 The City shall n ot damage the SR 9 l imited access ri ght of way as it performs work on
the Stormwater Infrastructure. If the City does damage the SR 9 limited access right of
way the City agrees to be directl y responsible to WSDOT for the cost of reasonable
repairs: provided that, prior to either the City or WSDOT commencing such repairs, the
Parties shall meet and confer regarding the nature and scope of repairs needed and shall
al locat e respon si b ility for the work.
6. P AYMENT
6.1 In the event WSDOT or its authorized contractor performs any maintenance and/or repair
work pursuant t o this Agreement, WSDOT shall invoice the City for the actual direct and
related indirect costs associated w ith the work performed. Upon receipt of a detailed,
it emized invo ice from WSDOT, the City shall make payment within sixty (60) calendar
days. All sums due from the City to WSDOT and not paid within sixty (60) calendar
days of the date of invoice shall bear interest at the rate of twelve percent (12%) per
annum, or the highest rate of interest allowable by Jaw , whichever is greater; provided
that, if the highest rate allowable by law is less than twelve percent (12%), interest
charged hereund er shall not exceed that amount. Interest shall be calculated from the
date of invoice. If the City objects to all or any portion of an invoice it shall notify
WSDOT within twenty (20) cal endar days from the dat e of receipt and shall pay only that
p ortion of the invoice not in dispute. WSDOT and the City s hall immediately make
every effort to settle the disputed portion, and if necessary uti lize dispute resolution as
prov ided for in Section 9 of this Agreement. No interest shall be due on any portion of
an invoice the City is determined not to owe following settlement between the parties or
completion of resolution of dispute reso lution process.
7. PARTY REPRES ENTATI VES
7.1 Unless otherwise provided herein, all notifications and contact made pursuant to thi s
Agreement shall reference GMB 111 7 and be directed to the Party representative or
designated representative, as follows:
City of Marysville Washington State
De partment of Trans portation
B rooke Ensor John Tellesbo
NPDES Coordinator Superintendent of Area 3 Maintenance
City of Marysville Washington State
1049 State A ven ue Department of Transportation
M arysvi ll e, WA 98270 709 North Broadway
P h one: (360) 363 -8288 Everett, W A 9820 l
BEnsor@m1![Ysvil lewa. gov Phone : (425) 258-8300
TELLESJ @wsdot. wa. 12.ov
GMB 1 11 7
Page 5 of 8
7 .2 A Party may designate an alternative repre sentati ve by notifyin g the other Party in
writing.
8. RJGHT OF ENTRY
8.1 WSDOT hereb y grants to the City and its au th ori zed agents, contractor s, subcontractors,
and employees, a ri ght of entry into the SR 9 limited access ri gh t of way for the purpose
of p erforming work authori zed pursuant to this Agreement.
8 .2 The City hereby grants to WSDOT and its authorized agents, contractors, subcontractors,
and employees, a right of entry into City property and/or City right of way for the
purpose of performing work authorized pursuant to thi s Agreement.
9. GENERAL PROVISIONS
9.1 Am endment: This Agreement may be am ended o r modified o nl y by the mutual
agreement of the Parties. Such amendments or modifications shall not be bindin g unless
th ey are in writing and signed by persons authorized to bind each of the Parti es.
9.2 Start of Work: The City agrees that its maintenance and repair obligations for the
Stormwater Infrastructure shall start as soon as this Agreement is executed and th e
Stormwate r Infrastructure is installed.
9.3 Term of Agreement: Unless otherwi se provided herein, the term of this Agreement shall
commence as of the execution of this Agreement. The terms of this Agreement shall
remain in effect unl ess oth erwise amended or terminated.
9.4 Termination: Either Party ma y terminate thi s Agreement with thirty (30) calendar da ys
pri or written notice to the other Party, indicating the reason fo r the termination. Upon
terminati o n o f thi s Agree ment, th e City s hall a t it sole cost and expense rem ove the
st orm water faci li ties from the SR 9 limited access right of way and restore the highway to
the condition prior to con structi on of th e stormwater facilitie s. In the event the City fai l s
to remove the storrnwater facilities from the highway WSDOT may remove the
storm water faci litie s and invo ice the City fo r the c os t thereof in accordance with Section
6. Any termination ofthis Agr eement shall not prejudice an y ri ghts or obli gations
a ccrued to WSDOT or to the City prior to termination.
9.5 Indemnification/Waiver/Legal Relati o ns:
9.5. l The City shall protect, de fe nd , inde mni fy, and hold harmless WSDOT, its
officers , officials, employees, authori zed agents, and/o r co ntractors, while acting
within the scope of th e ir employment as such, from any and all costs, claims,
judgments, and/o r awards of damages (both to persons and/or property), arising
out of, or in an y way resulting from, the C ity's obligations to be performed
pursuant to the provisions of this Agreement. The City shal l not be required to
GMB 111 7
Page 6 of 8
indemnify, defend , or ho ld harml ess WSDOT if th e claim, suit, or action fo r
injuries, death, or damages (b oth to persons and/or property) is caused by the sole
negligence of WSDOT. Where such claims, s ui ts, or actions result from
conc urrent negli gence of both Parties, the indemnity provi sio n s provide d he rein
shall be valid and enforceab le only to the extent of each Party's own negligence.
9.5.2 The City agrees that its o bl igations under this section extend to any claim,
demand an d/or cause of acti on brought by, or o n b ehalf of, any of its emp loyees
or agents while performi ng maintenance and/or r epair of the Stormwater
Infrastructure located on the SR 9 limited access right of way. For this purpose
the City, by mutual negotiation, hereby waives with re spect to WSDOT only, an y
immunity that wouJd otherwise be available against such claims und er the
Industrial In surance provisions in chapter 51 .12 RCW.
9.5.3 This indemnification and/o r waiver shall survive termination of this Agreement.
9.6 Di sputes: In the event that a dispute arises under this Agreement, it shall be r esolved as
follows: WSDOT and the City shall review th e applicabl e facts, terms, statutes, and rul es
affecting the dispute to resolve th e matter in good fai th and as expeditiously as possible .
If the Parties cannot reach a resolution , WSDOT and the City shall each appoint a
member to a disputes board , and th ese two member s shal l select a third board member
not affi liate d with either Party. The three-m ember board sh all conduct a di s pute
resolution hearing that shall be informal and unrecorded. An attempt at su ch dispute
resol ution in compli ance with aforesaid process shall be a prerequisite to the filing of any
liti gation conce rning the dispute. Th e Parties shall equall y share in the cost of the third
di sputes board member; however , each Party shal l be responsible fo r its own costs and
fees.
9.7 Venue: In the event that either Party deem s it necessary to institute legal acti on or
proceedin gs to enfo rce any right or obligati o n under this Agreemen t, the Parties agree
that any such action or proceedings shall be broug ht in Thurston Co unty Superior Court.
Further, the Parties agree that each shall be so lely responsi ble fo r payment of its own
attorney's fees , witness fees , and costs.
9.8 Severability: Should any section, term or provision of thi s Agreement be determin ed to
be invalid, the remainder of this Agreement shall not be affected and the same shall
continue in fu ll fo rce and effect.
9.9 Calendar Day: Calendar day m ean s any day on the calendar including Saturday, Sunday
or a legal local , state, or federal holida y.
9.10 Working Day : Wor king day means any day other than Saturday, Sunday, or a legal local
state, or federal holiday.
GMB 1117
Page 7 of 8
IN WI TNESS WHEREOF , the Parties heret o have executed this Agreement as of th e Party 's
date last signed be low.
City of Marysville
By:
Printe
Title:
Dat e: _ / (.
C-f'll 2-o
Approved as to Form
City of Marysville
By:
Prin
Titl e: City Attorney
Date:
Washington State
De artment of T rans
By:
Printed: D ave McCormick
Title: Assistant Reg ional Admini strator
Mai ntenance O p erati ons
North west Re io n
Date:
Approv ed as to Form
Washington State
De artment of Trans ortation
By:
Printed: Mark Schumock
Title: Assistant Attorney General
Date: Decem be r 18 , 2019
GMB 1117
Pa g e 8 of 8