Item No. 6c Attach 2
Date of Meeting February 14, 2012
AGREEMENT
BETWEEN THE
CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY
AND THE PORT OF SEATTLE
REGARDING PRELIMINARY DESIGN FOR THE RELOCATION 0F PORT UTILITIES
FOR THE SOUTH LINK PROJECT
THIS Agreement is made this/Ziggy of December, 201i between the Central Puget Sound
Regional Transit Authority (hereinafter referred to as "Sound Transit" or "ST") and the Port of
Seattle, a municipal corporation (hereinafter referred to as the "P0rt").
RECITALS
WHEREAS, subject to the availability of funding consistent with the voterapproved plan
called Sound Transit 2 (The Regional Transit System Plan for the Central Puget Sound).plan, Sound
Transit plans to accelerate the extension of the Central Link Light Rail System ("Link") from the
SeaTac/Airport Station to a new station at South 200th Street, hereinafter referred to as the "South
Link Project" and-
WIIEREAS, as part of implementing the South Link Project, Sound Transit requires a
timely relocation of Port utilities in the vicinity of the proposed light rail alignment across the Port's
nal design
property in order to accommodate Sound Transit's Design-Build ("D-B") Contractor's
and construction of the South Link project; and
WHEREAS, the Port agrees to prepare Preliminary (30%) design of the relocation of its
existing utilities and further agrees to complete nal design and relocate these utilities once nal
funding is authorized. The Port recognizes that it may be difcult for Sound Transit's D~B
Contractor to incorporate this work as part of their project delivery approach for the South Link
Project.
NOW, THEREFORE, the parties enter into this Agreement as provided herein.
1. PURPOSE
The purpose of this Agreement is to describe the terms and conditions under which the Port will
the utilities identied in Attachment "A"
prepare the preliminary design ("30% design") to relocate
in advance of Sound Transit issuing Construction Notice Jib-Proceed to their D-B Contractor for
the South Link Project and under which Sound Transit will reimburse the Port for satisfactory
performance of these services pursuant to the terms of this Agreement.
2. COOPERATION AND GOOD FAITH EFFORTS
2.1 Both parties acknowledge that the success of the regional transportation program requires
their willingness to work collaboratively to achieve the goals and objectives articulated in
this Agreement. The Parties understand and agree that the process described in this
Agreement depends upon timely and open communication and cooperation between the
Parties. In this regard, communication of issues, changes, or problems that arise with regard
to any aspect of the work should occur as early as possible in the process, and not wait for
explicit due dates or deadlines. Each party agrees to work cooperatively and in good faith
' toward resolution of
any such issues.
GENERAL FUNDING APPROACH
3.1 Costs.
Sound Transit shall reimburse the Port for the all actual costs for staff to prepare the 30%
design of relocating utilities, using the rates shown in Attachment D. The invoiced costs
include allocated overheads of all services provided by the Port under this Agreement shall
not exceed maximum amount of $49,000.
3.2 Funding Principles. The Parties agree that the following principles apply to this
Agreement: (a) Sound Transit shall not be obligated to reimburse the Port if the Port is
unable to fulll its obligations for providing the services described under this Agreement;
and (b) Sound Transit shall not be obligated to reimburse the Port for any other types of'
costs that the Port performs for its own benet in conjunction with the work described under
this Agreement.
SCOPE AND SCHEDULE
4.1 Port of Seattle Responsibilities.
Within the geographical limits dened and provided by Sound Transit and as shown in
Attachment A, the Port shall prepare 30% design documents and estimate for the relocation
of the underground utilities identied as being in conict with the 15% conceptual South
Link alignment provided to the Port previously by Sound Transit via a Sharel'oint link, its
construction and operation such that they minimize conicts with the D-B Contractor's
design and construction approach for completing South Link.
4.2 Sound Transit Responsibilities: Sound Transit will provide the Port with CAD les
showing the proposed track alignment for the South Link Project as well as Roadway,
conduit, electric power, storm drainage, and sewer in the vicinity.
4.3 Schedule for Completion. The Port shall complete the 30% design in accordance with the
schedule as shown in Attachment B and develop a reasonable schedule to complete the
design and relocate the utilities based on Sound 'I'ransit's ability to obtain Board
authorization and funding to construct South Link. The schedule shall attempt to, but not
necessarily eliminate or minimize conicts with the Sound Transit's D-B Contractor Sound
Transit shall review all work products provided by the Port and provide comments to the
Port within 10 days of the date of its receipt of the work product. The Port shall then make
changes to the work product as needed and return the revised work product to Sound Transit
' within 14 days after it received the comments from Sound Transit. Upon its receipt of the
revised work product, Sound Transit shall acknowledge the work as complete to its
satisfaction or provide any additional comments, in which case the Parties may agree to
extend the time period for the Port to complete the work.
Sound Transit will notify the P01t if its needs for the work to be completed sooner than
scheduled. Sound Transit shall reimburse the Port at the rate of time and a half for actual
non-exempt overtime work performed.
GENERAL TERMS
The following general terms are applicable to this Agreement.
5.1 Indemnication. To the extent permitted by law, the Paities to this Agreement shall
protect, defend, indemnify, and save harmless the other Party, and its ofcers, ofcials,
employees, and agents, while acting within the scope of their employment, from any and all
costs, claims, demands, judgments, damages, or liability of any kind including injuries to
or are
persons or damages to property, which arise out of, or in any way result from,
connected to, or are due to any acts or omissions of the indemnifying Party. No Party shall
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
indemnication. Where such claims, suits, or actions result from cencurrent 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 Party agrees that its obligations under this
indemnication section extend to any claim, demand, and/or cause of action brought by, or
mutual
on behalf of, any of its employees or agents. For this purpose, each Party, by
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.
5.2 Invoices and Payment. Sound Transit shall pay the Port once the Port completes the work
to Sound Transit's satisfaction as described in this Agreement. The Port shall provide
Sound Transit with an invoice documenting its actual costs for providing the services
described in Section 4.1, as provided in this Agreement. The Port shall submit all invoices
and supporting documentation necessary to verify the actual costs it incurred in completing
its responsibilities under this Agreement to: Sound Transit, Accounts Payable, 401 South
Jackson, Seattle, Washington 981042826 Invoices shall bear the name and address of the
this Agleement, and
party8 Designated Representative, a purchase 01der nun1be1, reference
can be transmitted either electronically or by mail.
Sound 'l'ransit agrees to pay the properly supported invoice within 30 days from the date of
receipt. If Sound Transit disputes any of charges, documentation or the completeness of the
invoice, notice of such objection shall be provided to the Port in writing within 20 days after
receipt of the submitted invoice. Sound Transit reserves the right to withhold payments
pending timely delivery and proper completion of work products as may be required under
this Agreement, but waives its right to withhold payment if it fails to provide the Port with
written notice of its objection within 20 days of its receipt of the submitted invoice. Any
dispute shall be subject to the dispute resoiution procedures as set forth in this Agreement.
5.3 Reports and Documentation. Sound Transit may require the Port to submit nancial
documents to satisfy requests from federal funding agencies for information to comply with
Sound Transit's funding requirements, including, but not limited to: (a) work statements or
payroll records, (b) invoices for materials and supplies, (c) statements from professionals for
services rendered, and (d) an itemized listing of the charges supported by copies of original
bills, invoices, expense accounts, and miscellaneous supporting data retained by the Port.
5.4 Availability of Records. All records in support of all costs incurred and actual expenditures
kept by the Port and its contractor in performing services pursuant to the terms of this
Agreement shall be open to inspection by Sound Transit 01 its federal funding agency during ~
normal business hours, and shall be retained and made available for such inspection for a
period ofnot less than six yeais from nal payment of funds under this Agreement to the
Port Copies of these records shall be furnished to Sound Transit and/or its iedc1a1 funding
agency upon request. This requirement shall be included in all subcontracts related to the
work entered into by the Port to fulll the terms of this Agreement.
5.5 Audit. if an audit is requested by Sound Transit or its federal funding agency, the Port shall
cooperate fully with the auditor chosen by Sound Transit or by the federal funding agency
If an auditIS required, the Port will provide documentation of all costs inemred1n
performing services pursuant to the terms of this Agreement. In the event that an audit finds
that Sound Transit has overpaid the Port for services performed under this Agreement, the
excess amount will be repaid by the Port to Sound Transit within 30 days of the conclusion
of the audit.
5.6 Contract Administration. To fulll their respective responsibilities under this Agreement,
each Party shall be solely responsible for the administration of and the completion and
quality of work performed under any conuacts executed by the Party. In no event shall any
contract executed by a Fatty be construed as obligating the other Party or Parties to this
Agreement. Any claims aiising out of the separate contracts of each Party for work under
I
this Agreement are the sole responsibility of the Party executingand administeringsuch
separate contracts. All contracts shall comply with all applicable public works and
procurement laws and regulations, including, but not limited to, applicable bonding,
prevailing wage, nondiscrimination, retainage, insurance, and workers compensation
requirements.
5.7 Dispute Resolution. The Parties will work collaboratively in accordance with the following
steps to resolve disagreements arising from activities performed under this Agreement.
Disagreements will be resolved promptly and at the lowest level of authority. The .
Designated Representatives shall use their best efforts to resolve disputes and issues arising
out of or related to this Agreement. Each Designated Representative shall notify the other in
writing of any problem or dispute the Designated Representative believes needs formal
resolution. This written notice shall include: (a) a description of the issue to be resolved;
(b) a description of the difference between the Parties on the issue; and (c) a summary of
steps taken by Designated Representative to resolve the issue. In the event the Designated
Representatives cannot resolve the dispute within 14 days of receipt of the notice, the Sound
Transit Chief Executive Ofcer or his/her designee and the Port of Seattle Managing
Director, Aviation Division or her/his designee shall engage in good faith negotiations to
resolve the dispute.
The Parties agree that they shall have no right to seek relief under this Agreement in a court
of law until they have followed the dispute resolution procedure described above. If any
applicable statute of limitations will or may run during the time that may be required to
exhaust the procedural steps set forth above, the Parties agree to seek an order to suspend
any proceeding filed in a court of law while they satisfy the procedural steps set forth above.
TERMINATION FOR DEFAULT
6.1 Either Party may terminate this Agreement, in whole or in part, in writing, if the other Party
substantially fails to fulll any or all of its obligations under this Agreement through no fault
of the other party, provided that insofar as practicable, the Party terminating the Agreement
will provide: (a) Written notice of intent to terminate at least 30 days prior to the date of
termination stating the manner in which the other Party has failed to perform the obligations
under this Agreement; and (b) An opportunity for the other Party to cure the breach within at
least 30 days of notice of the intent to terminate. In such case, the Notice of Termination
will state the time period in which cure is permitted and any other appropriate conditions. In
the event that the Parties agree to terminate this Agreement (not for default), Sound Transit
shall pay the Port for all work performed by the Port under this Agreement until such time as
the Port received noticatiori of termination of this Agreement from Sound Transit. Notice
oftermination shall be communicated in writing to the Parties' respective Designated
Representatives.
6.2 If the other party fails to remedy the default or the breach to the satisfaction of the other
Party within the time period established in the Notice of Termination or any extension
thereof, granted by the Party not at fault, this Agreement shall be deemed terminated.
GENERAL PROVISIONS
7.1 No Employment Relationship Created. The Parties agree that nothing in this Agreement
shall be construed to create an employment relationship between the Port and any employee,
agent, representative or contractor of Sound Transit.
7.2 No Agency. No separate entity is created by this Agreement. No joint venture or
partnership is formed as a result of this Agreement. No employees, agents or subcontractors
of one party shall be deemed, or represent themselves to be, employees of the other party.
7.3 No Third Party Rights. It is understood and agreed that this Agreement is solely for the
benet ofthe Parties hereto and gives no right to any other party. Nothing in this
Agreement, whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the Parties.
7.4' Severability. If any of the terms and conditions of this Agreement is determined to be
invalid or unenforceable by a court of competent jurisdiction, the remaining terms and
conditions unaffected thereby shall remain in full force and effect.
7.5 Designated Representatives. The Designated Representative for the Port shall be the
Port's Project Manager, Mark Longridge. The Sound Transit Designated Representative
shall be the Robert Bean, Senior Civil Engineer. The Parties may unilaterally change their
Designated Representatives by sending written notice to the other party as provided in
Section 7.6.
7.6 Notices. All notices to be provided under this Agreement shall be in writing and shall be
hand~delivered or sent by US Mail, and shall be deemed received upon delivery or, in the
case of notice sent by mail, ve (5) days after deposit in the US Mail.
Notices to the Port shall be sent to the following address:
Port ofSeattle
1'. 0. Box 1209
Seattle, WA 98111
Notices to Sound Transit shall be sent to the following address:
Sound Transit
c/o Department ofDesign Engineering and Construction Management
401 S. Jackson
Seattle, WA 98104
7.7 Calculation of Time. Time is of the essence in every provision of this Agreement. Unless
otherwise set forth in this Agreement, the reference to "days" means calendar days. If any
time for action occurs on a weekend or legal holiday, then the time period shall be extended
automaticaily to the next business day.
7.8 Entire Agreement. This Agreement, including its Recitals and Exhibits, embodies the
Parties entire Agreement on the matters covered by it, except as supplemented by
subsequent amendments to this Agreement. All prior negotiations and draft written
agreements are merged into and superseded by this Agreement.
7.9 Execution of Agreement. This Agreement may be executed in two counterparts, any one
of which shall be regarded for all purposes as one original.
IN WITNESS WHEREOF, the Parties hereto hereby agree to the terms and conditions of this
Agreement as of the date rst written above.
For the Port of Seattle:
By: Ralph Graves, PE.
Title: Managing Director, Capital
Development Division Services
APPrO ed as toI Form: Approved as to Form:
9
- M , . '1.
>
By: Traci M. Goodwin
Title: Senior Port Counsel
Attest:
By:
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