DRAFT 
INTERLOCAL AGREEMENT BETWEEN PORT OF SEATTLE AND CITY OF KENT
FOR S. 228TH GRADE SEPARATIONS 
PURPOSE 
This Agreement is entered into by and between the City of Kent (City), a
municipal corporation of the State of Washington and the Port of Seattle 
(Port), a municipal corporation of the State of Washington, collectively known
as the Parties, to implement the Memorandum of Understanding among the
principle parties of the FAST Corridor by sharing funds to construct two grade
separations on S. 228th Street in Kent, Washington. 
RECITALS 
WHEREAS, the assurance of continued freight and passenger mobility
throughout Puget Sound is an issue of critical strategic importance to the City
and to the Port; 
WHEREAS,  projected  growth  in  cargo  volumes  and  the
implementation of commuter rail service by the Regional Transit Authority are
expected to generate more frequent mainline rail traffic, with a projected
increase in traffic congestion at many of the at-grade crossings along major
arterials; 
WHEREAS, the Port, the State of Washington (State), King County
(County), the Port of Tacoma, the City , and other local jurisdictions have
developed  and  signed  the  Freight  Action  Strategy  Memorandum  of
Understanding ("FAST MOU") which commits approximately Two Hundred and
Sixty Million Dollars ($260,000,000.00) for grade separation and other road
and rail improvements; 
WHEREAS,   the  Freight  Action  Strategy  Memorandum  of
Understanding ("FAST MOU") commits the Ports of Seattle and Tacoma to
jointly contribute seven percent (7%) of the estimated project costs; 
WHEREAS, S. 228th Street is listed on Attachment B to the FAST
MOU  as  among  FAST  Corridor  Phase  II  Projects  for  immediate
implementation; 
WHEREAS, the S. 228TH Street Project (Project) calls for road
improvements along a three mile corridor, and for grade separations at the
Burlington Northern Santa Fe (BNSF) and Union Pacific (UP) rail lines; 
WHEREAS, the first stage of the Project's scheduled corridor
improvement (road improvements) is complete, open to traffic, and provides
access from the Kent valley up the west hill to I-5, the second stage of the
Project (grade separation at the BNSF) is currently under construction, and
the final stage of the Project, (grade separation at the Union Pacific) will
commence after completion of the grade separation at the BNSF; 

P:\Corporate\Comm\Commrec\mtgmemos\2009\April 14, 2009 SM\228th MOA 3-25-09.doc

WHEREAS, the grade separations of the Project, which will complete
the S. 228th Street corridor, are critical to address the impacts of increased
rail traffic resulting from the reopening of Stampede Pass to freight traffic,
and will specifically benefit the Port by providing a seamless connection
between the forty million square feet of warehouse and industrial space in the
Kent valley and the Port of Seattle and Sea-Tac Airport; 
WHEREAS, the Project grade separations, while located on arterials
within the corporate limits of the City, will benefit all of the parties to the
FAST MOU by promoting the efficient movement of passengers and cargo
throughout the region; 
WHEREAS, pursuant to the FAST MOU, the Port endorsed a 3.5%
funding participation toward the costs of the Project; 
WHEREAS,  the City and the Port agree on a proposed Port
contribution which will be  3.5% of the cost of the Project, based on the
estimated project cost at the time the FAST MOU was executed; and 
WHEREAS, the Port's 3.5% share of the Project cost is estimated to
be One Million One Hundred and Ninety Thousand Dollars ($1,190,000.00), 
which shall be used for construction purposes only. 

TERMS OF AGREEMENT 
1.     Scope of Work 
1.1    Project  Title: South  228th  Street  Union  Pacific  and  BNSF
Railroad Grade Separations 
1.2    Project Description: Construction of grade separations at both
the Union Pacific (UP) and Burlington Northern Santa Fe (BNSF) rail lines on
S. 228th Street to complete the S. 228th Street corridor between 84th
Avenue S. and Military Road/I-5. (See exhibits 1 through 3.) 
1.3    Project Schedule: Construction of the BNSF grade separation
Project is currently ongoing and is scheduled for completion in October of
2009.  Design work on the UP grade separation Project is scheduled to be
completed in 2009 with construction commencing in 2010 and completion in
2011. 
1.4    Direct Costs of Construction - The direct costs of construction
include:  mobilization,  maintenance  of  traffic,  temporary  erosion  and
sedimentation control, earthwork, pavement, drainage, structures, traffic
items (including signage, signalization, lighting, Intelligent Transportation
Systems,   and   pavement   markings),   retaining   walls,   landscaping,
environmental mitigation, and utilities as listed in the bid documents and
corresponding Schedule of Values.

Memorandum of Agreement - City of Kent and Port of Seattle 
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2.     TERMS AND CONDITIONS 
2.1    At-Grade Railroad Crossings: Upon completion of the  Project
grade separations at both the UP and BNSF railroad tracks, the existing atgrade
crossings will be permanently closed. 
2.2    Lead Agency: The City shall be lead agency for the  Project in
regard to State Environmental Policy Act and National Environmental Policy
Act compliance and responsible for obtaining all necessary permits.  As lead
agency, the City shall be responsible for accomplishing all actions necessary
for the construction of the Project. 
2.3    Consultants and Contractors: The City has  already and shall in
the  future  retain  consultants  and  contractors  for  Project  purposes  that
include,  but  are  not  limited  to,  design,  right-of-way  acquisition,  and
construction of the grade separation Project.  The City, at its sole discretion,
shall select, hire, or coordinate with other agencies to retain consultants or
contractors. 
2.4    Value Engineering: A value engineering study was performed
on the BNSF grade separation portion of the Project. A value engineering
study will also be performed on the UP grade separation portion of the
Project. 
2.5    Contact Persons: The parties to this Agreement shall designate
person(s) to act as liaison for the project.  The contact persons shall meet
regularly as appropriate given the phase and status of the project. 
2.6    Schedule: The  City shall determine the schedule for the Project
based on funding, right of way acquisition and other items that dictate the
project schedule. The Port shall be notified of any schedule changes. 
2.7    Progress Reports: The City shall forward progress re ports to the
Port on a monthly basis.  These reports shall review and update the status of
the Schedule of Values and expenditures of the Project. The progress reports
shall also identify any issues that can impact the scope, Project cost and
schedule and describe the action plan to resolve any issues. 
2.8    Extra Work:  If the City decides to make any change from the
design approved by the Port, the City will collaborate with the Port for any
new element of design that affects the Port's anticipated benefit. 



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3.     PAYMENT 
3.1    Reimbursement:  The City shall, in connection with any request
for reimbursement under this Section, provide the Port with the WSDOT
inspection-verified and approved Schedule of Values showing percentage of
completion on the items listed above. The Port agrees to reimburse the City 
for 3.5% of the direct costs of construction for the Project, up to a maximum
amount  of  One  Million,  One  Hundred  and  Ninety  Thousand  Dollars
($1,190,000.00), which includes any applicable taxes under the conditions
described below: 
All  environmental  review  under  SEPA  and  NEPA  has  been
successfully completed; 
All  necessary  permits  have  been  obtained  from  regulatory
agencies; 
Approved Schedule of Values of the direct construction costs,
including: 
- Monthly construction cash flow projections through the life
of the contract 
- Monthly payment requests, including a detailed break down
of the direct construction costs 
The Project, or its component, has been completed in a manner
that is consistent to the with the plans and technical specifications
reviewed and approved by the Port 
3.2    Progress Payments:   The Port will make progress payments,
upon request of the City. These payments will be made in accordance with
the terms of this Agreement.   The Parties agree that by making such
progress payments, the Port shall not waive its right to object to the
appropriateness of any Project expenditure. At the time of final audit for the
Project,  the  Parties  shall  make  all  required  adjustments  and  these
adjustments shall be made and reflected in determining the amount of the
Port's contribution to the funding for the Project. 
3.3    Payment Schedule:  The Port agrees to make payments for the
work by the City on the Project within thirty (30) days from the date of the
Port's receipt of a billing for the Project from the City. 

4.     AMENDMENT 
Either Party may request changes to the provisions contained in this
Agreement.  Such changes to this Agreement shall be agreed upon and
incorporated by written amendment to this Agreement executed with the
same formalities as the Agreement.

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5.     NOTIFICATION 
Any notice required or permitted to be given pursuant to this
Agreement shall be in writing, and shall be sent postage prepaid by U.S.
Mail, return receipt requested, to the following addresses unless otherwise
indicated by the Parties to this Agreement: 
To the CITY:       Project Engineer, S. 228th Street Grade Separations 
City of Kent 
400 W. Gowe Street 
Kent, WA. 98032-5895 
To the PORT:      Project Manager 
Port of Seattle 
2711 Alaskan Way 
Seattle, WA 98121 

6.     RECORDS RETENTION AND AUDIT 
During the progress of the work and for a period not less than three 
(3) years from the date of final payment to the C ity, the records and
accounts pertaining to the Project and accounting thereof are to be kept
available for inspection and audit by the Port and copies of all records,
accounts, documents, or other data pertaining to the Project will be furnished
upon request.  If any litigation, claim, or audit is commenced, the records
and accounts along with supporting documentation shall be retained until all
litigation,  claim,  or  audit  finding  has  been  resolved  even  though  such
litigation, claim, or audit continues past the three year retention period. This
provision is not intended to alter or amend records retention requirements
established by applicable state and federal laws. 

7.     DISPUTES 
The designated representatives herein under section 5.0, NOTIFICATION,
shall use their best efforts to resolve disputes between the Parties.  If the
designated  representatives  are  unable  to  resolve  a  dispute,  then  the
responsible project directors for each Party shall review the matter and
attempt to resolve it.  If the project directors are unable to resolve the
dispute, the matter shall be reviewed by the department director or chief
executive officer of each Party or his or her designee.  The Parties agree to
exhaust each of these procedural steps before seeking to resolve disputes in
a court of law or any other forum. 


Memorandum of Agreement - City of Kent and Port of Seattle 
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8.     EFFECTIVENESS AND DURATION 
This Agreement is effective upon the date of recording and will remain in
effect until October 31, 2013, unless otherwise amended or terminated.

9.     TERMINATION 
10.1  Either party may terminate this Agreement at any time upon
thirty (30) days written notice.  If either Party decides to terminate this
Agreement, the Port shall reimburse the City for all costs payable under this
Agreement and all non-cancelable obligations that the City incurred prior to
termination.  For  the  purposes  of  this  Agreement,  "non-cancelable
obligations" are defined as those costs that the City is obligated to pay as of 
the  day  that  either  Party  provides  notice  that  it  is  terminating  this
Agreement. 

11.   INDEMNIFICATION AND HOLD HARMLESS 
11.1  Each of the Parties, shall protect, defend, indemnify, and save
harmless the other Party, its officers, officials, employees, and agents, while
acting within the scope of their employment as such, from any and all costs, 
claims, judgment, and/or awards of damages, arising out of, or in any way
resulting from, each of the Party's own negligent acts or omissions. 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 other Party.  Where such claims, suits, or actions result
from the concurrent negligence of the Parties, the indemnity provisions
provided herein shall be valid and enforceable only to the extent of each 
Party's own negligence. 
11.2  Each of the Parties agrees that its obligations under this section
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 provision of Title 51 RCW.
11.3  The indemnification, hold harmless, and/or waiver obligation
described in this section shall survive the termination of this Agreement.  In
any action to enforce the provisions of the Section each party shall be
responsible for its own costs and attorneys' fees. 


Memorandum of Agreement - City of Kent and Port of Seattle 
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12.   VENUE 
12.1  This Agreement shall be deemed to be made in the County of
King, State of Washington, and the legal rights and obligations of the CITY
and PORT shall be determined in accordance with the laws of the State of
Washington.  All legal actions in connection with this Agreement shall be
brought in the County of King, State of Washington. 
IN  WITNESS  WHEREOF,  the  Parties  hereto  have  executed  this
Agreement which shall be effective upon the date of recording. 
PORT OF SEATTLE                 CITY OF KENT 

___________________________ ____________________________ 
Tay Yoshitani, Chief Executive Officer         Suzette Cooke, Mayor 
Date: ________________           Date: ___________________ 

APPROVED AS TO FORM:           APPROVED AS TO FORM: 

__________________________ ________________________ 
Kent City Attorney                    Port of Seattle Legal Department 

Date: ___________________        Date: _____________________ 








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Union Pacific Grade SeparationPhase 3 

















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