Sound Transit for developemnt of Edmonds Station Project (2)INTERLOCAL AGREEMENT
SOUND TRANSIT AND THE CITY OF EDMONDS
THIS AGREEMENT is made and entered into by and between the undersigned parties
pursuant to the provisions of the Interlocal Cooperation Act of 1967, Chapter 39.34
RCW.
WHEREAS, the City of Edmonds, Washington is an optional municipal code city
(hereinafter "City") organized under the provisions of Title 35A RCW and owns,
operates and manages certain rights of way and real property on the Edmonds waterfront;
and
WHEREAS, the Central Puget Sound Regional Transit Authority (hereinafter "Sound
Transit") is a regional transit authority created pursuant to Chapters 81.104 and 81.112
RCW, with all powers necessary to implement a high capacity transportation system
within its boundaries in King, Pierce and Snohomish Counties, including the right to
construct and maintain facilities and public rights of way without a franchise (RCW
81.112.100 and 35.58.030); and
WHEREAS, pursuant to a contemporaneously approved Development Agreement, the
City and Sound Transit have provided for the development of certain real property,
known as the Edmonds Station Project, as that Project is depicted in said agreement
incorporated by reference herein set forth; and
WHEREAS, pursuant to the authorization of the Interlocal Cooperation Act, the City
grants to Sound Transit nonexclusive use of portions of Railroad Street in the City as
described herein in consideration of Sound Transit's promises regarding the ownership,
operation and maintenance of the Project in the right of way as herein provided, NOW,
THEREFORE,
In consideration of the mutual promises and covenants contained herein, it is agreed that:
Section 1. Duration. This Agreement shall have an indefinite term and shall remain in
full force and effect unless or until Sound Transit ceases to use the right of way granted
pursuant to Section 3 below for public transportation purposes authorized under the
provisions of Chapters 81.104 and/or 81.112 RCW.
Section 2. Purpose. This Agreement provides a grant of authorization to Sound Transit
for the non-exclusive use of certain right of way described in Section 3 under the terms
and conditions set forth herein.
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a
Section 3. Grant for Use of City Right of Way.
3.1 The City hereby grants to Sound Transit, its successors and assigns, a non-
exclusive use of portions of Railroad Street, the general location of which is
described and depicted on Exhibit "A" attached and incorporated herein, to construct,
operate, maintain, and own the Project in accordance with the terms and conditions of
this Agreement. The portions of the Project located in Railroad Street shall be limited
to the areas shown in Exhibit "A". The City's Public Works Director and Sound
Transit's Director of Capital Project may, from time to time, jointly revise and
modify Exhibit "A" to conform to the record drawings, so as long as the revisions are,
in their professional engineering judgment, within the scope and intent of Exhibit
"A". Sound Transit expressly agrees that it will construct, operate and maintain the
Project in compliance with this Agreement and all applicable City ordinances and
state and federal laws.
3.2 Unless otherwise provided in this Agreement, Sound Transit shall own, operate
and/or maintain all facilities associated with the Project, including those within the City
right of way, including, without limitation, improvements constructed at the cost and
expense of Sound Transit. The parties acknowledge that Community Transit may own,
operate and maintain certain elements of the facilities described in Section 2.1 of the
Development Agreement and that subsequent amendments to this Agreement may be
necessary to address this possibility. Sound Transit will keep the City informed of the
progress of discussions with Community Transit and work cooperatively with the City
to address ownership, operation and maintenance of all facilities in a mutually
agreeable manner. Nothing in this Agreement, however, shall be construed as granting
to Sound Transit any interest or right in the City right of way or the improvements on
the City's right of way other than the rights expressly provided herein.
3.3 The City recognizes that the Project is a public transportation improvement
and as such will cooperate with Sound Transit by directing conflicting non -City,
private utilities to relocate when necessary at their expense, as provided by law.
Sound Transit agrees that it will coordinate with all utilities to minimize utility
relocation costs and related construction, and will negotiate with non -City owned
utilities on relocation costs and cost allocation. Sound Transit shall fully indemnify
the City for any claim and undertake the defense of any litigation directed at the City
arising from such relocation to accommodate the construction of the Project. The
City shall cooperate with Sound Transit in the defense of any such claim.
Notwithstanding the foregoing, the Parties agree that Sound Transit shall pay for any
relocation or protection of City -owned utilities that the City determines is necessary
due to construction or operation of the Project and as required by City Code.
3.5 Sound Transit, at Sound Transit's sole cost and expense, shall furnish all
materials, parts, components, equipment and structures necessary to construct and
operate the Project, or any part thereof, in accordance with this Agreement. Any and
all work by Sound Transit shall be done in a good and workmanlike manner, in
conformity with all applicable engineering, safety, and other statutes, laws, ordinances,
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regulations, rules, codes, orders, or specifications of any public body or authority
having jurisdiction.
3.6 Sound Transit's design and construction of the Project is subject to a financial
assistance contract between Sound Transit and the Federal Transit Administration
("FTA"). Both Parties recognize that the FTA may request a change to this Agreement to
comply with its funding requirements. The Parties agree to consider any such request in
good faith.
3.7 The Parties acknowledge that a portion of the Project will be constructed upon
real property that Sound Transit will lease from the Burlington Northern and Santa Fe
Railway Company (`BNSF") and that this real property is presently encumbered by an
easement granted to the City in 1958. In order to meet Federal Transit Administration
("FTA") continuing control requirements, it is anticipated that Sound Transit, the City
and BNSF will in the future enter into a subordination agreement that will be separate
and apart from this Agreement. Approval of the subordination agreement by Sound
Transit and the City shall not be unreasonably withheld.
Section 4. Permits.
4.1 Sound Transit, at its sole cost and expense, shall (i) secure and maintain in
effect, all federal, state and local permits and licenses required for the construction,
operation and maintenance of the Commuter Rail Transit System, including, without
limitation, crossing, zoning, building, health, environmental, and communication
permits and licenses, and (ii) indemnify the City against payment of the costs thereof
and against any fines or penalties that may be levied for failure to procure, or to
comply with, such permits or licenses, as well as any remedial costs incurred by the
City in curing any such failures.
4.2 The City shall not hinder Sound Transit's attempts to secure, obtain, and
maintain, at Sound Transit's sole cost and expense, any permits, licenses or approvals
of other governmental agencies or authorities, or of any necessary Third Parties, for
the use of any structures or facilities (including streets, roads or utility poles).
4.3 Sound Transit shall operate, maintain, and repair the Project in compliance
with all federal, state, and local laws, ordinances, departmental rules and regulations
and practices affecting such system, which includes, by way of example and not
limitation, the obligation to operate, maintain, and repair in accordance with the
applicable provisions of City Code. In addition, the operation, maintenance, and
repair shall be performed in a manner consistent with industry standards. Sound
Transit shall exercise reasonable care in the performance of all its activities and shall
use industry accepted methods and devices for preventing failures and accidents that
are likely to cause damage, injury, or nuisance to the public or to property.
4.4 The City shall have no responsibility for inspecting, maintaining, servicing or
repairing any trains or other equipment used by Sound Transit as part of the Project,
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but all such equipment shall at all times comply with applicable federal, state, and
local governmental requirements.
Section 5. Indemnity and Hold Harmless.
To the extent permitted by law, each of the Parties to this agreement shall protect, defend,
indemnify, and save harmless the other Party, and its officers, officials, employees, and
agents, while acting within the scope of their employment, from any and all costs, claims,
demands, judgment, damages or liability of any kind including injuries to persons or
damages to property, which arise out of, or in any way result from, or are connected to, or
are due to any negligent acts or omissions of the indemnifying Party. No Party will be
required to indemnify, defend, or save harmless the other Party if the claim, suit, or
action for injuries, death, or damages is caused by the sole negligence of the Party
seeking indemnification. Where such claims, suits, or actions result from concurrent
negligence of the Parties, the indemnity provisions provided herein shall be valid and
enforceable only to the extent of the Party's own negligence. Each of the Parties agrees
that its obligations under this subparagraph extend to any claim, demand, and/or cause of
action brought by, or on behalf of, any of its employees or agents. For this purpose, each
of the Parties, by mutual negotiation, hereby 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 RCW. In the event of any claims, demands, actions and
lawsuits, the indemnifying Party upon prompt notice from the other Party shall assume all
costs of defense thereof, including legal fees incurred by the other parties, and of all
resulting judgments that may be obtained against the other Party. In the event that any
Party incurs attorney fees, costs or other legal expenses to enforce the provisions of this
section, all such fees, costs and expenses shall be recoverable by the prevailing Party.
This indemnification section shall survive the termination of this Agreement.
Section 6. Insurance.
6.1 Sound Transit shall maintain, throughout the term of this Agreement and for
six years after its termination, insurance adequate to protect the City against claims
that may arise as a result of the construction, operation, or maintenance of the Project,
including, without limitation: (i) comprehensive general liability insurance; (ii)
property damage liability insurance (including coverage for explosion, collapse, and
instability); (iii) workers' compensation insurance (to the extent required by law); (iv)
employer's liability insurance; and (v) comprehensive auto liability coverage
(including owned, hired, and non -owned vehicles).
6.2 Sound Transit shall carry such insurance with responsible insurers or self -
insure or participate in an insurance pool or pools at levels of coverage or with
reserves adequate, in the reasonable judgment of Sound Transit, to protect Sound
Transit and the City against loss, and as are ordinarily carried by municipal or
privately owned entities engaged in the operation of similar systems.
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6.3 Sound Transit shall file with the City's Risk Manager Certificates of Insurance
reflecting evidence of the required insurance and naming the City as an additional
insured where appropriate. The certificates shall contain a provision that coverage
shall not be canceled until at least 30 days' prior written notice has been given to the
City.
6.4 If Sound Transit fails to maintain the required insurance, the City may order
Sound Transit to stop operating the Project in Railroad Street until the required
insurance is obtained.
Section 7. Liens.
7.1 The Project is not subject to a claim of lien. In the event that any City
property becomes subject to any claims for mechanics', artisans' or materialmen's
liens, or other encumbrances chargeable to or through Sound Transit that Sound
Transit does not contest in good faith, Sound Transit shall promptly, and in any event
within thirty (30) days, cause such lien claim or encumbrance to be discharged or
released of record (by payment, posting of bond, court deposit or other means),
without cost to the City, and shall indemnify the City against all costs and expenses
(including attorneys' fees) incurred in discharging and releasing such claim of lien or
encumbrance. If any such claim or encumbrance is not so discharged and released,
the City may pay or secure the release or discharge thereof at the expense of Sound
Transit after first giving Sound Transit seven (7) days advance notice of its intention
to do so. The City shall use its reasonable best efforts to keep Sound Transit's
facilities free of all liens that may adversely affect the Project.
7.2 Nothing herein shall preclude Sound Transit's or the City's contest of a claim
for lien or other encumbrance chargeable to or through Sound Transit or the City, or
of a contract or action upon which the same arose.
7.3 Nothing in this Agreement shall be deemed to give, and the City hereby
expressly waives, any claim of ownership in and to any part or the whole of the
Project except as may be otherwise provided herein.
Section 8. Terms Re aired by RCW 39.34.034 and RCW 39.34.0441
In addition to the provisions previously stated regarding duration, organization and
purpose, the following provisions are included pursuant to the requirements of RCW
39.34.030.
8.1 No joint or cooperative undertaking is required by this Agreement. Therefore, no
provision is made for the financing of any joint or cooperative undertaking.
8.2 No joint property ownership is contemplated under the terms of this provision.
To the extent title to the right of way exists, it shall remain in the City of Edmonds and all
rights derived by Sound Transit for the use of the described property are derivative of the
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City's ownership. In the event, at the termination of this Agreement, any personal
property is jointly owned by the Parties, either Party may purchase the interest of the
other, with the other Party's permission, at fair market value, as such value is determined
by the parties.. In the event that neither party wishes to retain jointly obtained property, it
shall be surplussed and the proceeds divided pro -rata based upon the party's initial
contribution to the purchase of such property. If bath Parties seek ownership of the
property, value shall be determined as herein provided and the right of the parties to
purchase the property or properties determined by the drawing of lots.
8.3 Because no joint or cooperative undertaking is contemplated by this agreement,
no provision has been made for an administrator or joint board.
8.4 This Agreement shall be effective when listed by subject on the City of Edmonds'
web site, Sound Transit's web site or another electronically retrievable public source,
whichever shall first occur.
Section 9. Covenants and Warranties.
9.1 By execution of this Agreement, the City warrants:
(a) That the City has the full right and authority to enter into and perform
this Agreement and any permits that may be granted in accordance with the terms
hereof, and that by entering into or performing this Agreement the City is not in
violation of its charter or by-laws, or any law, regulation or agreement by which it is
bound or to which it is bound or to which it is subject; and
(b) That the execution, delivery and performance of this Agreement by the
City has been duly authorized by all requisite corporate action, that the signatories for
the City hereto are authorized to sign this Agreement, and that, upon approval by the
City, the joinder or consent of any other party, including a court or trustee or referee, is
not necessary to make valid and effective the execution, delivery and performance of
this Agreement.
9.2 By execution of this Agreement, Sound Transit warrants:
(a) That Sound Transit has full right and authority to enter into and perform
this Agreement in accordance with the terms hereof, and by entering into or performing
under this Agreement, Sound Transit is not in violation of any of its agency governance
rules, or any law, regulation or agreement by which it is bound or to which it is subject;
and
(b) That the execution, delivery and performance of this Agreement by Sound
Transit has been duly authorized by all requisite Board action, that the signatories for
Sound Transit hereto are authorized to sign this Agreement, and that the joinder or
consent of any other party, including a court or trustee or referee, is not necessary to
make valid and effective the execution, delivery and performance of this Agreement.
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Section 10. Assignability; Beneficiary.
10.1 This Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors or assignees. No assignment hereof or sublease
shall be valid for any purpose without the prior written consent of the other party, and
any attempt by one party to assign or license the rights or obligations hereunder without
prior written consent will give the other party the right, at its written election,
immediately to terminate this Agreement or take any other lesser action with respect
thereto. The above requirement for consent shall not apply to (i) any disposition of all
or substantially all of the assets of a party, (ii) any governmental entity merger,
consolidation, or reorganization, whether voluntary or involuntary, (iii) a sublease or
assignment of this Agreement (in whole or in part) to a governmental entity, or (iv) a
sale, lease, or other conveyance subject to those requirements set forth in this
Agreement; provided, however, that no sublease or assignment under (ii) or (iii) shall
be permitted to a governmental entity not operating, constructing or maintaining the
Edmonds Station Project on behalf of Sound Transit, and provided further that no
unconsented assignment shall relieve Sound Transit of its obligations and liabilities
under this Agreement.
10.2 Neither this Agreement nor any term or provision hereof, or any inclusion by
reference, shall be construed as being for the benefit of any party not a signatory hereto.
Section 11. Desi =nated Representatives.
11.1 To promote effective intergovernmental cooperation and efficiencies, the Parties
each designate a representative ("Designated Representative") who shall be responsible
for coordination of communications between the Parties and shall act as the point of
contact for each party. The Designated Representatives shall be responsible for the
performance of the objectives of this Agreement.
11.2 Each Designated Representative is also responsible for coordinating the input and
work of its agency, consultants, and staff as it relates to the objectives of this Agreement.
The Parties reserve the right to change Designated Representatives, by written notice to
the other party during the term of this Agreement. Each party's Designated
Representative is named below with the individual's contact information.
Sound Transit Jodi Mitchell
Sound Transit
401 South Jackson
Seattle, Washington 98104-2826
206-398-5117
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City of Edmonds Stephen Clifton
City of Edmonds
121 5th Avenue North
Edmonds, WA 98020
(425) 771-0251
Section 12. Default.
12.1 No Party shall be in default under this Agreement unless it has failed to perform
under this Agreement for a period of thirty (30) calendar days after written notice of
default from any other Party. Each notice of default shall specify the nature of the
alleged default and the manner in which the default may be cured satisfactorily. If the
nature of the alleged default is such that it cannot be reasonably cured within the thirty
(30) day period, then commencement of the cure within such tirne period and the diligent
prosecution to completion of the cure shall be deemed a cure. Any Party not in default
under this Agreement shall have all rights and remedies provided by law including
without limitation damages, specific performance or writs to compel performance or
require action consistent with this Agreement. The prevailing party (or the substantially
prevailing party if no one party prevails entirely) shall be entitled to reasonable attorneys'
fees and costs.
Section 13. Notice.
13.1 Unless otherwise provided herein, all notices and communications concerning this
Agreement shall be in writing and addressed as follows. Notice by hand delivery or
facsimile shall be effective upon receipt. If deposited in the mail, notice shall be deemed
delivered 48 hours after deposited. Any Party at any time by written notice to the other
party may designate a different address or person to which such notice or communication
shall be given.
If to the City:
If to Sound Transit:
City of Edmonds
121 5th Avenue North
Edmonds, WA 98020
(425)771-0251
Attn: Stephen Clifton
Central Puget Sound Regional Transit Authority
Union Station
401 S. Jackson St.
Seattle, WA 98104-2826
Attn: Chief Executive Officer
13.2 Unless otherwise provided herein, notices shall be sent by registered or certified
U.S. Mail, or other verifiable physical or electronic transmission, and shall be deemed
served or delivered to addressee, upon the date of actual receipt, return receipt
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acknowledgment, provided, however, that upon receipt of a returned notice marked
"unclaimed," the sending Party shall make a reasonable effort to contact and notify the
other party by telephone.
Section 14.0 Dispute Resolution.
14.1 Any disputes or questions of interpretation of this Agreement that may arise
between Sound Transit and the City shall be governed under the Dispute Resolution
provisions in this Section. The Parties agree that cooperation and communication are
essential to resolving issues efficiently. The Parties agree to exercise their best efforts to
resolve any disputes that may arise through this dispute resolution process, rather than in
the media or through other external means.
14.2 The Parties agree to use their best efforts to prevent and resolve potential sources
of conflict at the lowest level.
14.3 The Parties agree to use their best efforts to resolve disputes arising out of or
related to this Agreement using good faith negotiations by engaging in the following
dispute escalation process should any such disputes arise:
(a) Level One - Sound Transit's Designated Representative and the City's
Designated Representative shall meet to discuss and attempt to resolve the dispute in a
timely manner. If they cannot resolve the dispute within fourteen (14) calendar days after
referral of the dispute to Level One, either Party may refer the dispute to Level Two.
(b) Level Two - Sound Transit and City designees shall meet to discuss and
attempt to resolve the dispute, in a timely manner. If they cannot resolve the dispute
within fourteen (14) business days after referral of that dispute to Level Two, either party
may refer the dispute to Level Three.
(c) Level Three - Sound Transit and City designees shall meet to discuss and
attempt to resolve the dispute in a timely manner.
14.4 Except as otherwise specified in this Agreement, in the event the dispute is not
resolved at Level Three within fourteen (14) calendar days after referral of that dispute to
Level Three, the Parties are free to file suit or agree to alternative dispute resolution
methods such as mediation. At all times prior to resolution of the dispute, the Parties
shall continue to perform and make any required payments under this Agreement in the
same manner and under the same terms as existed prior to the dispute.
Section 15. General Provisions.
15.1 The Parties shall not unreasonably withhold requests for information, approvals or
consents provided for in this Agreement. The Parties agree to take further actions and
execute further documents, either jointly or within their respective powers and authority,
to implement the intent of this Agreement. The City and Sound Transit agree to work
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cooperatively with each other to achieve the mutually agreeable goals as set forth in this
Agreement.
15.2 This Agreement shall be interpreted, construed and enforced in accordance with
the laws of the State of Washington. Venue for any action under this Agreement shall be
Snohomish County, Washington.
15.3 This Agreement shall be binding upon and inure to the benefit of the successors
and assigns of the City and Sound Transit.
15.4 A Memorandum of this Agreement shall be recorded at Sound Transit's sole cost
and expense in the records of Snohomish County Washington.
15.5 Time is of the essence in every provision of this Agreement. Unless otherwise set
forth in this Agreement, the reference to "days" shall mean calendar days. If any time for
action occurs on a weekend or legal holiday, then the time period shall be extended
automatically to the next business day.
15.6 This Agreement is made and entered into for the sole protection and benefit of the
Parties hereto and their successors and assigns. No other person shall have any right of
action based upon any provision of this Agreement.
15.7 This Agreement has been reviewed and revised by legal counsel for all parties and
no presumption or rule that ambiguity shall be construed against the party drafting the
document shall apply to the interpretation or enforcement of this Agreement. The Parties
intend this Agreement to be interpreted to the full extent authorized by applicable law.
15.8 Each Party shall be responsible for its own costs, including legal fees, incurred
in negotiating or finalizing this Agreement, unless otherwise agreed in writing by the
Parties.
15.9 The Parties shall not be deemed in default with provisions of this Agreement
where performance was rendered impossible by war or riots, civil disturbances, floods
or other natural catastrophes beyond its control; the unforeseeable unavailability of
labor or materials; or labor stoppages or slow downs, or power outages exceeding back-
up power supplies. This Agreement shall not be revoked or a party penalized for such
noncompliance, provided that such party takes immediate and diligent steps to bring
itself back into compliance and to comply as soon as practicable under the
circumstances without unduly endangering the health, safety, and integrity of both
parties' employees or property, or the health, safety, and integrity of the public, Public
Right -of -Way, public property, or private property.
15.10 This Agreement may be amended only by a written instrument executed by each
of the Parties hereto. No failure to exercise and no delay in exercising, on the part of
any party hereto, any rights, power or privilege hereunder shall operate as a waiver
hereof, except as expressly provided herein.
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15.11 This Agreement constitutes the entire agreement of the Parties with respect to
the subject matters hereof, and supersedes any and all prior negotiations (oral and
written), understandings and agreements with respect hereto.
15.12 Section headings are intended as information only, and shall not be construed
with the substance of the section they caption.
15.13 In construction of this Agreement, words used in the singular shall include the
plural and the plural the singular, and "or" is used in the inclusive sense, in all cases
where such meanings would be appropriate.
15.14 This Agreement may be executed in several counterparts, each of which shall be
deemed an original, and all counterparts together shall constitute but one and the same
instrument.
Section 16. Severability.
16.1 In case any term of this Agreement shall be held invalid, illegal or
unenforceable in whole or in part, neither the validity of the remaining part of such
term nor the validity of the remaining terms of this Agreement shall in any way be
affected thereby.
IN WITNESS WHEREOF, each of the Parties hereto has executed this
Agreement by having its authorized representative affix his/her name in the appropriate
space below:
CENTRAL PUGET REGIONAL TRANSIT
AUTHORITY (SOUND TRANSIT)
By:
Joan M. Earl, .hie Executi. Officer
Date: Vg/10
Approved as to form:
By:
Stepl e G. heehy
Legal Counsel
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THE CITY OF EDMONDS
By:
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Gark Haa nson, Mayor
Date: 0//>�?/azo/Q
Authorized on O/A 51,? J0
By:
W. Scott Snyder,
City Attorney
EXHIBIT A
Project Plan
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