Loading...
HomeMy WebLinkAboutContract 9 { CAG-19-237 MEMORANDUM OF UNDERSTANDING FOR UTILITY UNDERGROUNDING This MEMORANDUM OF UNDERSTANDING_F( UTILITY UNDERGROUNDING (this "Agreement") is made and entered into on the Zr—"-day o , 2019, by and between the City of Renton, a municipal corporation of the State of shington (the "City") and Renton School District No. 403, a municipal corporation of the State of Washington (the"School District"). The City approved the construction and development of Sartori Elementary School (the "Project") pursuant to a building permit issued by the City under file number B16006797, and conditionally approved the Preliminary Planned Urban Development and conditional use permit application filed by the School District under file number LUA1 6-000692,PPUD, CU-H pursuant to a Hearing Examiner's Decision dated November 27, 2016 (the "PUD/CUP Approval"). The conditions of approval were set forth in the PUD/CUP Approval, including conditions related to common facilities, including utilities. Condition No.24 of the PUD/CUP Approval requires that"all common facilities,including but not limited to utilities, storm drainage, streets,recreation facilities, etc., shall be completed by the [School District]." Pursuant to the PUD/CUP Approval and the utility plan approved by the City and Puget Sound Energy ("PSE"), the School District agrees that it is required to and will underground existing conduits and power lines and telecommunications cables (collectively,the"Underground Lines") beneath public rights-of-way, specifically (a) three underneath Park Avenue, (b) one underneath North 3rd Street, and(c) one under North 4th Street(collectively, the"ROW"). These undergrounding-related conditions(the"Utility Undergrounding Conditions")are set forth in more detail in Section 27 (Trifrastructure and Services)of the Hearing Examiner Recommendation dated November 1, 2016 relating to the PUD-CUP Approval. Once completed, the Underground Lines will be owned, operated and maintained by the utilities using them, including without limitation PSE. The portions of the Underground Lines located on the District Property will be governed by an easement granted to PSE and/or the applicable utility by the School District (the "Utility Easement") and underneath the ROW (i) pursuant to the City construction standards that apply as of the date of this Agreement and (ii) in compliance with applicable undergrounding tariffs (collectively, "Undergrounding Standards"). The School District has not yet satisfied the Utility Undergrounding Conditions and has not yet installed the Underground Lines. The School District has requested of the City that the School District receive the benefit of deferring construction of the Underground Lines (the "Work") upon the School District obtaining funding for this additional public project work, and the City is willing to defer to the Work for a reasonable period, as set forth in this Agreement. Although the Underground Lines are not installed,utility service to the elementary school is already established and sufficient to meet service needs for the use of the school facilities. In order to allow the issuance of a temporary certificate.of occupancy for the Project before the School District satisfies the Utility Undergrounding Conditions and performs the Work,the parties desire 00790-0800/140391572.5 to enter into this Agreement to ensure that the Work is completed and to identify timelines and other terms and conditions for the School District's performance of the Work. The issuance of a temporary certificate of occupancy for the Project is necessary to allow Sartori Elementary School to open. • NOW, THEREFORE, THE PARTIES AGREE as follows: 1. Timeline for the Work; Remedy for Non-Completion. (a) If the next School District capital bond scheduled for the ballot in February 2019 (the"2019 Capital Bond") passes, the School District shall complete the Work by October 1, 2022, at no expense to the City. (b) If the 2019 Capital Bond does not pass, the School District shall complete the Work by October 1, 2025, at no expense to the City. (c) If the Work is not completed by October 1, 2025, then the School District expressly agrees that the City may, in the City's sole option and discretion, complete the Work and recover from the School District all of the City's reasonable out-of-pocket costs incurred to complete the Work. The City expressly reserves the right to seek any remedy available at law or in equity to recover the City's costs and/or to seek redress for the violation or nonperformance of any of the provisions of this Agreement. 2. Performance of Work. When it performs the Work, the School District shall perform the Work(a) within the Utility Easement and on the District Property in accordance with the design drawing provided by PSE, as the same may be amended from time to time, and (b)underneath the ROW in accordance with the Undergrounding Standards applicable as of the date of this Agreement. The School District's architect and/or construction manager, or another officer or agent of the School District appointed by the School District from time to time, shall administer and oversee the Work. The School District will be responsible for creating and adhering to a budget for the Work. The City agrees to periodically inspect the Work, while under construction,to verify that it complies with the design standards and construction specifications of the City,the present rules,regulations and resolutions of the City,and the terms of this Agreement. 3. Certificates of Occupancy;No Waiver. The execution of this Agreement satisfies the Utility Undergrounding Conditions for the purpose of issuing a temporary certificate of occupancy only. The School District acknowledges and agrees that it is required to obtain a final certificate of occupancy for the Project and that the City will review and issue such final certificate of occupancy in accordance with the City's generally applicable standards and criteria. By issuing the temporary certificate of occupancy prior to installation of the Underground Lines, the City does not waive any rights or remedies available to it, including but not limited to the authority to demand compliance with local laws and regulations and to enforce the same. 4. Ownership of Underground Lines. Upon completion of the Work, the School District shall convey the Underground Lines to PSE and/or to the applicable utility provider. -2- 00790-0800/140391572.5 • 5. Term of Agreement. This Agreement shall remain in full force and effect until the completion date of the Work,with such completion date being mutually determined in writing by the School District and the City. 6. Notices. Notices shall be provided by overnight courier to the parties at the following addresses: (a) If to the City: City of Renton 1055 South Grady Way Renton, WA 98057 Attn: Administrator, Community&Economic Development (b) If to the School District: Renton School District No. 403 7812 South 124th Street Seattle, WA 98178-4830 Attn: Matt Feldmeyer Notices shall be deemed to be delivered on the date received or delivery refused. 7. Indemnification. The School District agrees to release,indemnify,defend,and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, reasonable attorney's or attorneys' fees, costs, and/or litigation expenses (collectively, "Claims") to or by any and all persons or entities, arising from, resulting from, or related to demands for compensation by the contractor, subcontractors,laborers,materialmen or suppliers, which Claims are based upon work performed to complete the Work,except for that portion of the claims caused by the City's sole negligence. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the School District and the City, its officers, officials, employees and volunteers, the School District's obligation to release, indemnify, defend, and hold the City harmless shall be only to the extent of the School District's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. 8. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. -3- 00790-0800/140391572.5 9. Prevailing Party. In the event that either party initiates any action to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorney's fees from the other party. 10. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. 11. Severability. A court of competent jurisdiction's determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. 12. Effect of Agreement. This Agreement shall be binding on the assigns and successors-in-interest of the parties hereto, and the obligations hereunder shall run with the land of the above-referenced parcels. This Agreement contains the entire understanding of the parties with respect to the matters set forth herein and any prior or contemporaneous understandings are merged herein. This Agreement shall not be modified except by written instrument executed by the parties hereto. 13. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. [Signature Page Follows] • • -4- 00790-0800/140391572.5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above set forth. SCHOOL DISTRICT: CITY: Renton School District No. 403, City of Renton, a Washington municipal a Washington municipal corporation corporation 10,111/ By: �. V Y am: l./ t/ ifW4, Name: C. E. "Chip"Vincent Its: fft: Its: Administrator,Department of Community &Economic Development • [SIGNATURE PAGE TO MEMORANDUKOF UNDERSTANDING FOR UTILITY UNDERGROUNDING]