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HomeMy WebLinkAboutR-2004-047 Yakima County Agreement (re: test pits / railroad grade separation project)RESOLUTION NO. R-2004-47 A RESOLUTION authorizing the City Manager of the City of Yakima to execute an agreement with Yakima County to allow the excavation of two (2) test pits necessary to investigate soil suitability for the City of Yakima Railroad Grade Separation Project. WHEREAS the County owns certain property adjacent to the City's Railroad Grade Separation Project in the City of Yakima; and WHEREAS the City is entering final design for the purpose of constructing two Railroad Grade Separations on "B" Street and Lincoln Avenues; and WHEREAS the City and its consultant, Berger ABAM Engineers, Inc., have identified portions of three (3) County -owned parcels (Nos. 191319-22410, 191319-22411 and 191319- 22412) near the two Grade Separations as appropriate for soil exploration at a depth of approximately twenty-five (25) feet; and WHEREAS the City desires to excavate for investigating soil suitability for certain construction methods at two pit locations measuring 100 x 100 feet on said three contiguous County -owned parcels; and WHEREAS the County is willing to allow the excavation of said test pits in accordance with the terms and conditions provided in the attached Agreement; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize execution of the attached agreement with Yakima County, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated agreement with Yakima County to allow the excavation of two (2) test pits necessary to investigate soil suitability for the City of Yakima Railroad Grade Separation Project ADOPTED BY THE CITY COUNCIL this 16th day of March, 2004. 412 ATTEST: Paul P. George, Mayor City Clerk res -test pits rr grade separation.pm LICENSE AGREEMENT FOR TEMPORARY EXCAVATION OF COUNTY PROPERTY FOR CITY OF YAKIMA RAILROAD GRADE SEPARATION PROJECT THIS AGREEMENT, hereinafter "Agreement," is made and entered into by and between Yakima County, a municipal corporation, hereinafter the "County," and the City of Yakima, a municipal corporation, hereinafter the "City." WITNESSETH: WHEREAS the County owns certain property adjacent to the City's Railroad Grade Separation Project in the City of Yakima. WHEREAS the City is entering final design for the purpose of constructing two Railroad Grade Separations on "B" Street and Lincoln Avenues. WHEREAS the City and its consultant, Berger ABAM Engineers, Inc., have identified portions of three (3) County -owned parcels (Nos. 191319-22410, 191319-22411 and 191319- 22412) near the two Grade Separations as appropriate for soil exploration at a depth of approximately twenty-five (25) feet. WHEREAS the City desires to excavate for investigating soil suitability for certain construction methods at two pit locations measuring 100 x 100 feet on said three contiguous County -owned parcels. WHEREAS the County is willing to allow the excavation of said test pits in accordance with the terms and conditions provided in this Agreement. NOW, THEREFORE, the above named municipalities do hereby mutually consent and agree to the following: 1. Excavation of Test Pits Within Subject Property. a. Yakima County owns certain real property (Parcel Nos. 191319-22410, 191319- 22411 and 191319-22412) ("Subject Property") that is adjacent to the City's Railroad Grade Separation Project. The Subject Property is legally described on Exhibit "A," a copy of which is attached hereto and incorporated herein by this reference. b. Subject to the terms and conditions of this Agreement, Yakima County hereby grants a license to the City to excavate two (2) test pits to a depth of twenty-five (25) feet on the Subject Property. The purpose of the two test pits shall be to investigate soil suitability for certain construction methods relative to the Railroad Grade Separation Project. The two test pits shall be excavated within two (2) one hundred foot by one hundred foot by twenty-five foot (100' x 100' x 25') designated areas within the Subject Property (hereinafter "Designated Excavation Areas"). The location and description of each Designated Excavation Area within the Subject Property is shown on Exhibit "B," a copy of which is attached and incorporated herein by this reference. 1 c. The two test pits shall be excavated in a good and workmanlike manner under the inspection of the City and also subject to the inspection and approval of the County Public Works Director, and with the following requirements: • Each test pit and stockpile area will occupy and be contained within the respective Designated Excavation Area. • Cones and barricades will be placed around each Designated Excavation Area excavation. • The Designated Excavation Areas will not be dewatered. • Following excavation, the test pits will be backfilled using the excavated material and water settled. • The asphalt edges will be saw cut, and ten (10) inches of 5/8 -inch minus crushed rock will be placed in the test pit areas. The full area of asphalt pavement removed or damaged will be replaced. • Upon completion of all excavation and backfill, the top four (4) inches of crushed rock will be removed and a 4 -inch lift of asphalt will be placed and compacted. The City shall be solely responsible for the cost and expense of said test pits. Unless extended by agreement of the parties, the excavation and fill of the test pits shall be completed on or by April 30, 2004. d. Prior to the start of excavation of said test pits, the City shall provide the County Public Works Director with sufficient information as to the proposed plan drawings and details thereof and an opportunity to be present when the excavation is commenced. 2. Term of Agreement. The term of this Agreement shall commence upon full execution by the parties and shall terminate at midnight, May 15, 2004, unless extended by mutual agreement of the parties or terminated earlier by either party in accordance with Section 8. The Yakima County Public Works Director and City Engineer are specifically authorized by the County and the City, respectively, to extend the term of this Agreement if they determine it is appropriate and necessary. 3. General Indemnification and Hold Harmless. a. The City agrees to protect, defend, indemnify, and hold harmless Yakima County, its officers, elected officials, agents and employees from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including reasonable attorneys' fees and disbursements) resulting from death or bodily injury to any person or damage or destruction to a third party to the extent caused by any negligent act and/or omission of the City, its officers, employees, agents, contractor and/or subcontractors arising out of the excavation and/or fill of the test pits described in Section 1 of this Agreement. b. In the event that both the City and the County are negligent, the City's liability for indemnification of the County shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable 2 attorneys' fees) that can be apportioned to the City, its officers, employees, agents, contractors and/or subcontractors. c. Nothing contained in this section of this Agreement shall be construed to create a liability or a right of indemnification in any third party. d. This section of the Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. 4. Environmental Indemnification and Hold Harmless. a. The City agrees to indemnify, defend and hold Yakima County, its officers, elected officials, agents and employees harmless from and against any and all claims, causes of action, demands and liability, including but not limited to any costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments and reasonable attorneys' fees associated with the removal and/or remediation of any hazardous substances located on or within the Designated Excavation Area of the Subject Property as defined and described in Section 1(b) of this Agreement to the extent that any such removal and/or remediation results from, is necessitated by, or is related to excavation of the test pits described in Section 1 of this Agreement. b. Yakima County agrees to indemnify, defend and hold the City, its officers, elected officials, agents and employees harmless from and against any and all claims, causes of action, demands and liability, including but not limited to any costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments and reasonable attorneys' fees associated with the existence of and/or removal or remediation of any hazardous substances that have been released or otherwise come to be located on the Subject Property outside the Designated Excavation Area as defined in Section 1(b) of this Agreement even though such removal and/or remediation may result from, is necessitated by, or is related to the excavation of the test pits described in Section 1 of this Agreement. c. For the purposes of this Agreement, "hazardous substances" includes all substances identified as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., and the Washington Model Toxics Control Act, RCW 70.105D et seq. d. The provisions of this section shall survive the termination or expiration of this Agreement. 5. Severability. a. If a court of competent jurisdiction holds any part, term or provision of this Agreement to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. b. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict and shall be deemed modified to conform to such statutory provision. 3 6. Non -Waiver. A waiver by either party hereto of a breach by the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon stnct performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 7. Drafting of Agreement. Both the County and the City have participated in the drafting of this Agreement. As such, it is agreed by the parties that the general contract rule of law that ambiguities in the contract language shall be construed against the drafter of a contract shall have no application to any legal proceeding, arbitration and/or action in which this Agreement and its terms and conditions are being interpreted and/or enforced. 8. Termination. The County or the City may terminate this Agreement, with or without cause, by giving the other party ten (10) calendar days' written notice of termination. 9. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO THE CITY: TO THE COUNTY: K. Wendell Adams, P.E., City Engineer Engineering Division 129 North Second Street Yakima, WA 98901 Vern M. Redifer, Director Yakima County Public Works Department 128 North Second Street Yakima, WA 98901 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 10. Third Parties. The County and the City are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide, any right or benefit, whether directly or indirectly or otherwise, to third persons. 4 11. Integration. This written document constitutes the entire agreement between the County and the City. There are no other oral or written Agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 13. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 14. Filing with County Auditor. A copy of this Agreement shall be filed with the Yakima County Auditor's Office Pursuant to RCW 39.34.040. CITY OF YAKIMA R. A. Zais, Jr., City Manager Date: ATT ST: f / , City Clerk ,Lii2cia- 4.-,4977C/, 5 /46,7--,4o6 City Contract No. (.›Wli4 X Authorized by City Resolution No. ARD OF COUNTY OMMISSIONERS James M. Le >_r Ronald F. Gamache, Commissioner esse S. Palacios, Commissioner Date: - 6 Li ATEST: ALLI4A alaV Carla Ward Clerk of the Board `r, %tt{lUS/tree z:ZE 00= ES -At S:\kwayenbe\Karen's Files\AGREEMENTS\McMURRAY\County test pit re railroad grade separation.doc V. 5 Exhibit "A" Legal Descriptions: Parcel "A": Parcel Number 191319-22410 Lots 17 through 28 of Block 8, Plat of the Town of North Yakima Parcel "B": Parcel Number 191319-22411 Lot 29 of Block 8, Plat of the Town of North Yakima Parcel "C": Parcel Number 191319-22412 Lots 30, 31 & 32 of Block 8, Plat of the Town of North Yakima z. • '** EXHIBIT B • A ' jv 4 APPROVED11.20.03 ',4kr,04t, "B" STREET PARKING LOT Site Plan ITEM TITLE: SUBMI1"1'ED BY: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. XJ3 For Meeting of March 16, 2004 Agreement with Yakima County to excavate test pits on County property Cook, Dept. of Community and Economic Development CONTACT PERSON/TELEPHONE: K4 endell Adams, P.E., City Engineer Engineering Division Manager / 575-6096 SUMMARY EXPLANATION: The City of Yakima, Engineering Division, in cooperation with Yakima County Public Works, is preparing for the construction of railroad grade separation projects at "B" Street and Lincoln Avenue near Front Street. Soil excavation and exploration is necessary for completion of the design to ensure that soil of the type anticipated will be encountered. The cost for this soil excavation exploration by local contractor, Ken Leingang, Inc., was budgeted and is included in the existing contract with Berger/ABAM Engineers, Inc. Under their contract to the City, Berger/ ABAM Engineers, Inc., will have geotechnical sub - consultant Shannon Wilson, Inc., oversee the soil exploration. The proposed attached agreement with Yakima County, allows for the excavation of two exploration pits approximately sixty (60) feet across and twenty-five (25) feet deep on portions of three (3) contiguous County -owned parcels. The attached agreement provides for the City to block off an area of current county parking lot in two (2) one hundred (100) foot square areas in the parking a lot, to excavate and stockpile material within the two (2) areas, backfill with the excavated soil, compact the excavation and restore the parking areas disturbed. The City will coordinate interim parking for displaced county employee parking during the period of excavation and parking lot reconstruction as well as maintain access to surrounding parking in the remainder of the parking lot. This exploration excavation will commence as soon as the agreement is executed so we can take advantage of the current low water table. Resolution X Ordinance Contract _ Other (Specify) Agreement, Vicinity Map Funding Source: Various Federal and State Funds APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt the attached resolution authorizing the City Manager to execute this Agreement. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION Resolution adopted. RESOLUTION NO. R 2004-47. March 11, 2004