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HomeMy WebLinkAbout06/17/2014 05E Firing Center Park & Ride Lot Expansion Grant & Construction Agreement with WSDOTBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 5.E. For Meeting of: June 17, 2014 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ITEM TITLE: Resolution authorizing a grant agreement with the Washington State Department of Transportation (WSDOT) to allow Yakima Transit to expand and resurface the Firing Center Park & Ride. SUBMITTED BY: Scott Schafer, Public Works Director, 576-6411 Alvie Maxey, Acting Transit Division Manager SUMMARY EXPLANATION: Due to continued success of the Yakima -Ellensburg Commuter Service, Yakima Transit applied for grant funding in 2012 to expand and resurface the Firing Center Park & Ride. The funds were awarded June 2013. The grant agreement in the amount of $240,000 required a 20% match and since the property is owned and controlled by WSDOT and Yakima County, their contribution of $60,400 in land will be used as matching funds for this grant. The total cost of the project is $302,000. The expansion of the Park & Ride lot will provide added parking for passengers using the Yakima -Ellensburg Commuter, carpooling, or using Yakima Transit's fixed -route bus system as it connects through the City of Selah. Because the property is owned by Yakima County and WSDOT and controlled & maintained by WSDOT, WSDOT will be contracted with to do the design and construction of the park & ride expansion and resurfacing. There is no cost to the City of Yakima for the proposed project. The City of Yakima will receive up to $10,000 for costs related to administering the grant. Grant Agreement GCB1512 is in the amount of $240,000 (see attached agreement). Interlocal Agreement GCB 1725 Design and Construction Lot Improvement in the amount, not to exceed, $230,000 (see attached agreement). Resolution: X Other (Specify): Contract: X Start Date: 7/01/2013 Ordinance: Contract Term: 240,000 End Date: 6/30/2015 Item Budgeted: Yes Funding Source/Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: RECOMMENDATION: Amount: WSDOT & Yakima County Property ($60,400) & WSDOT Grant ($240,000) Improve the Built Environment City Manager Staff respectfully requests City Council approve the resolution authorizing the City Manager to enter into Grant Agreement GCB 1512 & Interlocal Agreement GCB 1725 to expand the Firing Center Park & Ride Lot and resurface the existing P&R lot. ATTACHMENTS: Description Resolution WSDOT Grant Contract WSDOT Construction Contract Upload Date 6/9/2014 6/9/2014 6/9/2014 Type Resollution Contract Contract Resolution No. R -2014- A RESOLUTION adopting a resolution authorizing the City Manager to enter into a grant & construction agreement with Washington State Department of Transportation to expand the Firing Center Park & Ride Lot. WHEREAS, in 2012, the City of Yakima applied for grant funding under the Washington State Department of Transportation's Regional Mobility Grant Program to expand and resurface the Firing Center Park & Ride to support parking for passengers using the Yakima -Ellensburg Commuter, carpooling, or using Yakima Transit's fixed -route Selah service; and, WHEREAS, the Washington State Department of Transportation (WSDOT) awarded funding on July 1, 2013 in the amount of $240,000; and, WHEREAS, the Washington State Department of Transportation will be completing the design and construction of the park & ride lot that they own jointly with Yakima County; and, WHEREAS, the 20% grant matching requirement in the amount of $60,400 will be provided by Yakima County and WSDOT through in-kind property donation; and, WHEREAS, administrative costs associated with the proposed project will be reimbursed to the City of Yakima in an amount not to exceed $10,000; and, WHEREAS, it is necessary for the City and the Washington State Department of Transportation to enter into an agreement setting forth the terms, conditions, and requirements for allocating this funding and completing the construction; THEREFORE, be it resolved by the City Council of the City of Yakima, the City Manager is hereby authorized to enter into Grant Agreement GCB1512 with WSDOT for grant funding for the expansion and resurfacing of the Firing Center Park & Ride Lot and Interlocal Agreement GCB1725 with WSDOT for the construction & resurfacing of the Firing Center Park & Ride Lot. ADOPTED BY THE CITY COUNCIL at a regular meeting this 17th day of June, 2014. Micah Cawley, Mayor ATTEST: Sonya Claar Tee, City Clerk State Capital Construction Grant Agreement WSDOT Regional Mobility Grant Program Washington State Department of Transportation Public Transportation Division 310 Maple Park Avenue SE PO Box 47387 Olympia, WA 98504-7387 WSDOT Contact: Mark Eldridge 360-705-7273 Contractor: Yakima Transit 129 N 2nd Street Yakima, WA 98901 Contact Person: Kevin Futrell 509-576-6422 or Ken Mehin 509-576-6415 Term of Project: From July 1, 2013 to July 1, 2017 ID #: SW000712202 Scope of Project: As set forth in Exhibit I, Project Scope, Schedule and Budget, and Attachment A to Exhibit I Project Title: Selah Firing Center Park and Ride Expansion Location: As set forth in Exhibit I Attachment A Proiect Costs: Total Project Cost $ 302,000 State Regional Mobility Grant Funds $ 240,000 Minimum Matching Funds Required $ 60,400 Agreement Number: GCB1512 THIS AGREEMENT, entered into by the Washington State Department of Transportation, hereinafter "WSDOT," and the contractor identified above, hereinafter the "CONTRACTOR," individually the "PARTY" and collectively the "PARTIES," WITNESSETH THAT: WHEREAS, pursuant to RCW 47.66.030 the Regional Mobility Grant Program has been established to aid local governments in funding projects such as intercounty connectivity service, park and ride lots, rush hour transit service, and other capital projects that improve the connectivity and efficiency of the state's transportation system; WHEREAS, pursuant to RCW 47.66.040 WSDOT shall select projects based on a competitive process consistent with local, regional, and state transportation plans, local transit development plans and local comprehensive land use plans; WHEREAS, pursuant to chapter 44.48 RCW the Legislative Evaluation and Accountability Program (LEAP) Committee provides analysis and monitoring of state expenditures, budgets and related fiscal matters and consults with Legislative committees; WHEREAS, the State of Washington in its Sessions Laws of 2013, chapter 306, section 220(4) and (5), provides Regional Mobility funding through the multimodal transportation account and the regional mobility grant program account as identified in the budget through its 2013-2015 biennial appropriations to WSDOT; WHEREAS, WSDOT Public Transportation Division administers Regional Mobility Grant Program funds to provide assistance solely for transportation projects as identified in LEAP Transportation Document 2013-2 ALL PROJECTS as developed on April 23, 2013 Public Transportation V; NOW, THEREFORE, in consideration of the terms, conditions, performances, and mutual covenants herein set forth and the attached Exhibit I, "Project Scope, Schedule and Budget," IT IS MUTUALLY AGREED AS FOLLOWS: GCB1512 Page 1 of 13 Section 1 Purpose of Agreement The purpose of this AGREEMENT is for WSDOT to provide capital funding to the CONTRACTOR for the design, acquisition, construction and/or improvements of capital facilities and infrastructure to be used in the provision of transportation services to persons in the State of Washington, hereinafter referred to as the "Project." Reference to the "Project" shall include all such capital facilities, infrastructure and/or associated equipment designed, acquired, constructed, improved or installed under this AGREEMENT. Section 2 Scope of Project The CONTRACTOR agrees to perform the work and complete the Project described and detailed in Exhibit I, "Project Scope, Schedule and Budget" and in accordance with its Attachment A, "Project Application — Location and Description of Work" (hereinafter referred to as "Attachment A") , and in accordance with the terms and conditions of this AGREEMENT. By the preceding reference Exhibit I with its Attachment A is fully incorporated herein as if fully set out in this AGREEMENT. In the event any conflicting terms exist between Exhibit I, "Project Scope, Schedule and Budget" and Attachment A, Exhibit I, "Project Scope, Schedule and Budget" supersedes and shall prevail over Attachment A. Section 3 Term of Project The Project period of this AGREEMENT shall commence and terminate on the dates shown in the caption space header titled "Term of Project" regardless of the date of execution of this AGREEMENT, unless terminated as provided herein. The caption space header titled "Term of Project" and all caption space headers above are by this reference incorporated herein into the AGREEMENT as if fully set forth in the AGREEMENT. Section 4 State Review of Project WSDOT shall review the project identified in this AGREEMENT as Exhibit I, "Project Scope, Schedule and Budget" and Attachment A, at least semiannually to determine whether the Project is making satisfactory progress. If WSDOT has awarded funds, but the CONTRACTOR does not report satisfactory activity within one (1) year of the initial grant award, WSDOT shall review the Project to determine whether the grant should be terminated as provided in Section 33, Termination Section 5 Project Costs and Minimum Match Requirement The reimbursable costs of the Project shall not exceed the amount indicated for "State Regional Mobility Grant Funds" located within the caption space header titled "Project Costs." The CONTRACTOR agrees to expend eligible funds, together with other funds allocated for the Project, in an amount sufficient to complete the Project as detailed in Exhibit I, "Project Scope, Schedule and Budget" and Attachment A. The CONTRACTOR is required to provide a minimum match of funds for the Project as identified in the caption space header titled "Project Costs" in the amount indicated as "Minimum Matching Funds Required." Examples of eligible matching funds are listed in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, which can be found at www.wsdot.wa.gov/Transit/Grants/mobility.htm and any amendments thereto, which by this reference is fully incorporated herein as if fully set out in this AGREEMENT. If at any time the CONTRACTOR becomes aware that the cost which it expects to incur in the performance of this AGREEMENT will exceed or be less than the amount identified as "Total Project Cost" in the caption space header titled "Project Costs," the CONTRACTOR shall notify WSDOT in writing within thirty (30) calendar days of making that determination. Section 6 Inspection of the Project The CONTRACTOR shall inspect the Project pursuant to this AGREEMENT as required during construction and upon Project completion. Upon receipt and acceptance of the Project, the CONTRACTOR agrees that it has fully inspected the Project and accepts it as being in good condition and repair, and that the CONTRACTOR is satisfied with the Project and that the Project complies with all regulations, rules, and laws. GCB1512 Page 2 of 13 Section 7 Use of Park and Ride Facilities In order to be eligible to receive a Regional Mobility grant, a transit agency must establish a process for private transportation providers to apply for the use of park and ride facilities. Section 8 Miscellaneous Charges and Conditions The CONTRACTOR shall pay and be solely responsible for all storage charges, parking charges, late fees, and fines, as well as any fees and taxes, except applicable state sales or use tax, which may be imposed with respect to the Project by a duly constituted governmental authority as the result of the CONTRACTOR's use or intended use of the Project. All replacements, repairs, or substitutions of parts or Project Equipment shall be at the cost and expense of the CONTRACTOR. Section 9 Payment A. State funds shall be used to reimburse the CONTRACTOR for allowable expenses incurred in completing the Project described in Exhibit I, "Project Scope, Schedule and Budget" and Attachment A. Allowable Project expenses shall be determined by WSDOT as described in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, and any subsequent amendments thereto. In no event shall the total amount reimbursed by WSDOT hereunder exceed the "State Regional Mobility Grant Funds" identified in the caption space header titled "Project Costs." B. Payment will be made by WSDOT on a reimbursable basis for actual net Project costs incurred within the timeframe in the caption space titled "Term of Project" less any pre -payment discounts, rebates, late penalties and/or refunds. Such costs to be reimbursed shall be calculated as described in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, and any subsequent amendments thereto. The CONTRACTOR may submit to WSDOT requests for partial payment for eligible costs incurred no more than once per month and the CONTRACTOR shall submit to WSDOT an invoice or financial summary of the activity of the Project at least quarterly. Payment is subject to the submission to and approval by WSDOT of appropriate invoices, reports, and financial summaries C. The CONTRACTOR shall submit an invoice by the 15th of July of every state fiscal year (July 1 through June 30) of the Term of Project. If the CONTRACTOR is unable to provide an invoice by this date, the CONTRACTOR shall provide an estimate of the charges to be billed so WSDOT may accrue the expenditures in the proper fiscal period. Any subsequent reimbursement request submitted will be limited to the amount accrued as set forth in this section. The CONTRACTOR's final payment request must be received by WSDOT by July 15 immediately following the final fiscal year of the Term of Project , within thirty (30) days of the completion of the Project, or within thirty (30) days of the termination of this AGREEMENT, whichever is sooner. Any payment request received after the 15th day after the end of the grant period will not be eligible for reimbursement. Section 10 Assignments, Subcontracts, and Leases A. Unless otherwise authorized in advance in writing by WSDOT, the CONTRACTOR shall not assign any completed Project facilities and/or infrastructure under this AGREEMENT, or execute any contract, amendment, or change order thereto pertaining to the Project or obligate itself in any manner with any third party with respect to its rights and responsibilities under this AGREEMENT or lease or lend the Project or any part thereof to be used by anyone not under the CONTRACTOR's direct supervision. B. The CONTRACTOR agrees to include Sections 11 through 23 of this AGREEMENT in each subcontract and in all contracts it enters into for the employment of any individuals, procurement of any materials, or the performance of any work to be accomplished under this AGREEMENT. The PARTIES further agree that those clauses shall not be modified, except to identify the subcontractor or other person or entity that will be subject to its provisions. In addition, the following provision shall be included in an advertisement or invitation to bid for any procurement by the CONTRACTOR under this AGREEMENT: Statement of Financial Assistance: "This AGREEMENT is subject to the appropriations of the State of Washington." GCB1512 Page 3 of 13 Section 11 Reports and Project Use A. The CONTRACTOR agrees that the Project shall be used for the provision of transportation services within the area indicated in Exhibit I Attachment A Section 4 for the Project's reporting period of project term plus four years after the project is complete, as set forth in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, and any subsequent amendments thereto.. The CONTRACTOR further agrees that it will not use or permit the use of the Project in a negligent manner or in violation of any law, or so as to avoid any insurance covering the same, or permit the Project to become subject to any lien, charge, or encumbrance. Should the CONTRACTOR unreasonably delay or fail to use the Project during the project term and reporting period, the CONTRACTOR agrees that it may be required to refund up to the entire amount of the "State Regional Mobility Grants Funds" expended on the Project. The CONTRACTOR shall immediately notify WSDOT when any Project facilities and/or infrastructure is withdrawn from Project use or when the Project or any part thereof is used in a manner substantially different from that identified in Exhibit I, "Project Scope, Schedule and Budget" and Attachment A. If the Project is permanently removed from transportation services, the CONTRACTOR agrees to immediately notify WSDOT of its intentions regarding the disposal of the Project or any part of the Project thereof. B. Reports. The CONTRACTOR shall submit quarterly reports to WSDOT for the Term of Project, regarding the progress of the Project and annual performance reports for four calendar years after the project is operationally complete, as prescribed in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, and any subsequent amendments thereto or as WSDOT may require, including, but not limited to, interim and annual reports. The CONTRACTOR shall keep satisfactory written records with regard to the use of Project and shall submit the following reports to, and in a form and at such times prescribed by WSDOT as set forth in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, and any subsequent amendments thereto: 1. An approved Performance Measurement Plan must be on file with WSDOT before submitting the first reimbursement request. 2.An Annual Performance Report that includes a summary of overall project performance and supporting data. 3. Reports describing the current usage of the Project and other data which WSDOT may request from the CONTRACTOR by memos, e-mails or telephone requests. 4. In the event any portion of the Project sustains disabling damage, the CONTRACTOR shall notify WSDOT immediately after the occasion of the damage, including the circumstances thereof. 5. The CONTRACTOR shall collect and submit to WSDOT, at such time as WSDOT may require, such financial statements, data, records, contracts, and other documents related to the Project as may be deemed necessary by WSDOT. C. Remedies for Misuse or Noncompliance. The CONTRACTOR shall not use the Project or any part thereof in a manner different from that described in Exhibit I, Project Scope, Schedule and Budget, and Attachment A, as set forth in Section 2 of the AGREEMENT. If WSDOT determines that the Project has been used in a manner different from Exhibit I, Project Scope, Schedule and Budget, and Attachment A, WSDOT may direct the CONTRACTOR to repay WSDOT the State funded share of the "Project Costs." WSDOT may also withhold payments should it determine that the CONTRACTOR has failed to comply with any provision of this AGREEMENT. Section 12 Maintenance of the Project The CONTRACTOR shall make all necessary repairs and reasonably maintain the Project to assure it remains in good and operational condition until the end of its useful life. The useful life of the constructed project will be determined by using the North American Industry Classification System (NAICS) code tables. All service, materials, and repairs in connection with the use and operation of the Project during its useful life shall be at the CONTRACTOR's expense. CONTRACTORS who are transit agencies must also have a Transit Asset Management Plan certified by WSDOT that details the transit agency's plan to maintain the Project. All other CONTRACTORS must submit a written Maintenance Plan to WSDOT for approval prior to the occupation and/or operations of the Project. The CONTRACTOR agrees, at a minimum, to maintain the Project and service or replace parts at intervals recommended in the manuals and/or instructions provided by the subcontractors and/or component manufacturers, or sooner if needed. The CONTRACTOR shall have the Project routinely inspected and make arrangements for any appropriate service and repair under the manufacturer's warranty. WSDOT shall not be liable for repairs. The CONTRACTOR shall retain records of all maintenance and parts replacement performed on the Project in accordance with Section 22, Audits, Inspection, and Retention of Records. The CONTRACTOR shall provide copies of such records to WSDOT, upon request. GCB1512 Page 4 of 13 Section 13 General Compliance Assurance The CONTRACTOR agrees to comply with all instructions as prescribed in WSDOT's Guide to Managing Your Regional Mobility Grant, 2013 version, and any amendments thereto. The CONTRACTOR agrees that, WSDOT and/or any authorized WSDOT representative, shall have not only the right to monitor the compliance of the CONTRACTOR with respect to the provisions of this AGREEMENT, but also have the right to seek judicial enforcement with regard to any matter arising under this AGREEMENT. It is understood by the CONTRACTOR that this assurance obligates the CONTRACTOR and any transferee of the CONTRACTOR, or said transferee's successor(s), for the term of this AGREEMENT." Section 14 Compliance with State Design Standards The CONTRACTOR agrees the Project design must comply with all Washington State Standard Specifications for Road, Bridge, and Municipal Construction (www.wsdot.wa.gov/Publications/Manuals/M41-10.htm), and any revisions thereto. Projects that wish to use design standards that differ from state standards must submit a request to WSDOT's Public Transportation Division and obtain documented approval before design work commences. Section 15 No Obligation by the State Government No contract between the CONTRACTOR and its subcontractors shall create any obligation or liability of WSDOT with regard to this AGREEMENT without WSDOT's specific written consent, notwithstanding its concurrence in, or approval of, the award of any contract or subcontract or the solicitations thereof and the CONTRACTOR hereby agrees to include this provision in all contracts it enters into for the design, acquisition, and construction of facilities and/or infrastructure related to the Project, or the performance of any work to be accomplished under this AGREEMENT. Section 16 Ethics A. Relationships with Employees and Officers of WSDOT. The CONTRACTOR shall not extend any loan, gratuity or gift of money in any form whatsoever to any employee or officer of WSDOT, nor shall the CONTRACTOR rent or purchase any Project equipment and materials from any employee or officer of WSDOT. B.. Employment of Former WSDOT Employees. The CONTRACTOR hereby warrants that it shall not engage on a full, part-time, or other basis during the period of this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of WSDOT without written consent of WSDOT. Section 17 Compliance with Laws and Regulations The CONTRACTOR agrees to abide by all applicable state and federal laws and regulations including but not limited to, those concerning employment, equal opportunity employment, nondiscrimination assurances, project record keeping necessary to evidence compliance with such federal and state laws and regulations, and retention of all such records. The CONTRACTOR will adhere to all of the nondiscrimination provisions in Chapter 49.60 RCW. Section 18 State and Local Law Except when a federal statute or regulation pre-empts state or, local law, no provision of this AGREEMENT shall require the CONTRACTOR to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of state or local law. Thus if any provision or compliance with any provision of this AGREEMENT violates state, or local law, or would require the CONTRACTOR to violate state or local law, the CONTRACTOR agrees to notify WSDOT immediately in writing. Should this occur, WSDOT and the CONTRACTOR agree to make appropriate arrangements to proceed with or, if necessary, expeditiously, terminate the Project. Section 19 Labor Provisions Overtime Requirements. No CONTRACTOR or subcontractor contracting for any part of the Project work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty (40) hours in such workweek unless GCB1512 Page 5 of 13 such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty (40) hours in such workweek. CONTRACTOR will comply with Title 49 RCW, Labor Regulations. Section 20 Environmental Protections and Archeological Preservation The CONTRACTOR agrees to comply with all applicable requirements of chapter 43.21C RCW "State Environmental Policy Act" (SEPA). The CONTRACTOR also agrees to comply with all applicable requirements of Executive Order 05-05, Archeological and Cultural Resources, for all capital construction projects or land acquisitions for the purpose of a capital construction project, not undergoing Section 106 review under the National Historic Preservation Act of 1966 (Section 106). Section 21 Accounting Records A. Project Accounts. The CONTRACTOR agrees to establish and maintain for the Project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified with the Project. The CONTRACTOR agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible and available to WSDOT upon request, and, to the extent feasible, kept separate from documents not pertaining to the Project. B. Documentation of Project Costs and Program Income. The CONTRACTOR agrees to support all allowable costs charged to the Project, including any approved services contributed by the CONTRACTOR or others, with properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and propriety of the charges. The CONTRACTOR also agrees to maintain accurate records of all program income derived from implementing the Project. Section 22 Audits, Inspection, and Retention of Records A. Submission of Proceedings, Contracts, Agreements, and Other Documents. During the term of the Project and for six (6) years thereafter, the CONTRACTOR agrees to retain intact and to provide any data, documents, reports, records, contracts, and supporting materials relating to the Project as WSDOT may require. Project closeout does not alter these recording and record-keeping requirements. Should an audit, enforcement, or litigation process be commenced, but not completed, during the aforementioned six (6) year period then the CONTRACTOR's obligations hereunder shall be extended until the conclusion of that pending audit, enforcement, or litigation process. B. General Audit Requirements. The CONTRACTOR agrees to obtain any other audits required by WSDOT at CONTRACTOR's expense. Project closeout will not alter the CONTRACTOR's audit responsibilities. C. Inspection. The CONTRACTOR agrees to permit WSDOT, and the State Auditor, or their authorized representatives, to inspect all Project work materials, payrolls, maintenance records, and other data, and to audit the books, records, and accounts of the CONTRACTOR and its contractors pertaining to the Project. The CONTRACTOR agrees to require each third party to permit WSDOT, the State Auditor, or their duly authorized representatives, to inspect all work, materials, payrolls, maintenance records, and other data and records involving that third party contract, and to audit the books, records, and accounts involving that third party contract as it affects the Project. Section 23 Permitting The CONTRACTOR agrees to be solely responsible for all required Federal, State and/or local permitting as related to the Project. Section 24 Loss or Damage to the Project A. The CONTRACTOR, at its own expense, shall cover any loss, theft, damage, or destruction of the Project's facilities, associated equipment and/or infrastructure using either of the following methods: 1. The CONTRACTOR shall maintain property insurance for facilities, associated equipment and/or infrastructure adequate to cover the value of the Project; the CONTRACTOR shall supply a copy of the Certificate of Insurance specifying such coverage to WSDOT with the first request for reimbursement, and supply proof of renewal annually thereafter; or GCB1512 Page 6 of 13 2. The CONTRACTOR shall certify that it has self-insurance and provide a written certificate of self-insurance to WSDOT with the first request for reimbursement, and annually thereafter. The CONTRACTOR will cover from its own resources the costs of repairing or replacing any Project facilities, associated equipment and/or infrastructure, if it is stolen, damaged, or destroyed in any manner. B. If the damage to the Project does not result in a total loss, payments for damage shall be paid directly to the CONTRACTOR. The CONTRACTOR shall, within thirty (30) days, either: 1. Devote all of the insurance proceeds received to repair the Project and place it back in service, and the CONTRACTOR shall, at its own expense, pay any portion of the cost of repair which is not covered by insurance; or 2. In the event the CONTRACTOR certified to self- insurance, devote all funds necessary to repair the Project and place it back into service. C. If the Project is a total loss, either by theft or damage, the insurance proceeds or equivalent shall be paid directly to the CONTRACTOR and within fifteen (15) days the CONTRACTOR shall pay WSDOT its proportionate funded share of such proceeds received. The CONTRACTOR shall within sixty (60) days of loss, theft, or damage, notify WSDOT that it either: 1. Intends to replace the lost Project facilities, associated equipment and/or infrastructure; or 2. Does not intend to replace the lost Project facilities, associated equipment and/or infrastructure. D If the CONTRACTOR intends to replace the Project facilities, associated equipment and/or infrastructure then WSDOT will reimburse the CONTRACTOR upon receipt of an approved invoice, funds up to the amount WSDOT received in insurance proceeds. E. Coverage, if obtained or provided by the CONTRACTOR in compliance with this section, shall not be deemed as having relieved the CONTRACTOR of any liability in excess of such coverage as required by the limitation of liability section of this AGREEMENT, or otherwise. Section 25 Limitation of Liability A. The CONTRACTOR shall indemnify and hold WSDOT, its agents, employees, and officers harmless from and process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages, or costs (hereinafter referred to collectively as "claims"), of whatsoever kind or nature brought against WSDOT arising out of, in connection with or incident to this AGREEMENT and/or the CONTRACTOR's performance or failure to perform any aspect of this AGREEMENT. This indemnity provision applies to all claims against WSDOT, its agents, employees and officers arising out of, in connection with or incident to the negligent acts omissions of the CONTRACTOR, its agents, employees and officers. Provided, however, that nothing herein shall require the CONTRACTOR to indemnify and hold harmless or defend the WSDOT, its agents, employees or officers to the extent that claims are caused by the negligent acts or omissions of the WSDOT, its agents, employees or officers. The indemnification and hold harmless provision shall survive termination of this AGREEMENT. B. The CONTRACTOR shall be deemed an independent contractor for all purposes, and the employees of the CONTRACTOR or its subcontractors and the employees thereof, shall not in any manner be deemed to be employees of WSDOT. C. The CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR's employees and/or subcontractors and solely for the purposes of this indemnification and defense, the CONTRACTOR specifically waives any immunity under the State Industrial Insurance Law, Title 51 Revised Code of Washington. D. In the event either the CONTRACTOR or WSDOT incurs attorney's fees, costs or other legal expenses to enforce the provisions of this section of this AGREEMENT against the other PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY. Section 26 Personal Liability of Public Officers No officer or employee of WSDOT shall be personally liable for any acts or failure to act in connection with this AGREEMENT, it being understood that in such matters he or she is acting solely as an agent of WSDOT. Section 27 WSDOT Advice GCB1512 Page 7 of 13 The CONTRACTOR bears complete responsibility for the administration and success of the Project as it is defined by this AGREEMENT and any amendments thereto. If the CONTRACTOR solicits advice from WSDOT on problems that may arise, the offering of WSDOT advice shall not shift the responsibility of the CONTRACTOR for the correct administration and success of the Project, and WSDOT shall not be held liable for offering advice to the CONTRACTOR. Section 28 Forbearance by WSDOT Not a Waiver Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. Section 29 Lack of Waiver In no event shall any WSDOT payment of funds to the CONTRACTOR constitute or be construed as a waiver by WSDOT of any CONTRACTOR breach, or default. Such payment shall in no way impair or prejudice any right or remedy available to WSDOT with respect to any breach or default Section 30 Changed Conditions Affecting Performance The CONTRACTOR hereby agrees to immediately notify WSDOT of any change in conditions or law, or of any other event, which may affect its ability to perform the Project in accordance with the provisions of this AGREEMENT. Section 31 Agreement Modifications Either PARTY may request changes to this AGREEMENT. Any changes to the terms of this AGREEMENT must be mutually agreed upon and incorporated by written amendment to this AGREEMENT. Such amendments shall not be binding or valid unless signed by the persons authorized to bind each of the PARTIES. Section 32 Disputes A. Disputes. Disputes, arising in the performance of this AGREEMENT, which are not resolved by agreement of the PARTIES, shall be decided in writing by the WSDOT Public Transportation Division's Assistant Director or designee. This decision shall be final and conclusive unless within ten (10) days from the date of CONTRACTOR'S receipt of WSDOT's written decision, the CONTRACTOR mails or otherwise furnishes a written appeal to the Director of the Public Transportation Division or the Director's designee. The CONTRACTOR's appeal shall be decided in writing by the Director of the Public Transportation Division within thirty (30) days of receipt of the appeal by the Director of the Public Transportation Division or the Director's designee. The decision shall be binding upon the CONTRACTOR and the CONTRACTOR shall abide by the decision. B. Performance During Dispute. Unless otherwise directed by WSDOT, CONTRACTOR shall continue performance under this AGREEMENT while matters in dispute are being resolved. C. Claims for Damages. Should either PARTY to this AGREEMENT suffer injury or damage to person, property, or right because of any act or omission of the other PARTY or any of that PARTY's employees, agents or others for whose acts it is legally liable, a claim for damages therefore shall be made in writing to such other PARTY within thirty (30) days after the first observance of such injury or damage. D. Rights and Remedies. All remedies provided in this AGREEMENT are distinct and cumulative to any other right or remedy under this document or afforded by law or equity, and may be exercised independently, concurrently, or successively and shall not be construed to be a limitation of any duties, obligations, rights and remedies of the PARTIES hereto. No action or failure to act by the WSDOT or CONTRACTOR shall constitute a waiver of any right or duty afforded any of them under this AGREEMENT, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. Section 33 Termination A. Termination for Convenience. WSDOT and/or the CONTRACTOR may suspend or terminate this AGREEMENT, in whole or in part, and all or any part of the financial assistance provided herein, at any time by written notice to the other PARTY. WSDOT and the CONTRACTOR shall agree upon the AGREEMENT termination provisions including but not limited to the settlement terms, conditions, and in the case of partial termination the portion GCB1512 Page 8 of 13 to be terminated. Written notification must set forth the reasons for such termination, the effective date, and in case of a partial termination the portion to be terminated. However if, in the case of partial termination, WSDOT determines that the remaining portion of the award will not accomplish the purposes for which the award was made, WSDOT may terminate the award in its entirety. PARTIES may terminate this AGREEMENT for convenience for reasons including, but not limited to, the following: 1. The requisite funding becomes unavailable through failure of appropriation or otherwise; 2. WSDOT determines, in its sole discretion, that the continuation of the Project would not produce beneficial results commensurate with the further expenditure of funds; 3. The CONTRACTOR is prevented from proceeding with the Project as a direct result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense; or an Executive Order of the President or Governor of the State with respect to the preservation of energy resources; 4. The CONTRACTOR is prevented from proceeding with the Project by reason of a temporary preliminary, special, or permanent restraining order or injunction of a court of competent jurisdiction where the issuance of such order or injunction is primarily caused by the acts or omissions of persons or agencies other than the CONTRACTOR; or 5. The State Government or WSDOT determines that the purposes of the statute authorizing the Project would not be adequately served by the continuation of financial assistance for the Project. 6. In the case of termination for convenience under subsections A.1-5 above, WSDOT shall reimburse the CONTRACTOR for all costs payable under this AGREEMENT that the CONTRACTOR properly incurred prior to termination. The CONTRACTOR shall promptly submit its claim for reimbursement to WSDOT. If the CONTRACTOR has any property in its possession belonging to WSDOT, the CONTRACTOR will account for the same, and dispose of it in the manner WSDOT directs. B. Termination for Default. WSDOT may suspend or terminate this AGREEMENT for default, in whole or in part, and all or any part of the financial assistance provided herein, at any time by written notice to the CONTRACTOR, if the CONTRACTOR materially breaches or fails to perform any of the requirements of this AGREEMENT, including: 1. Takes any action pertaining to this AGREEMENT without the approval of WSDOT, which under the procedures of this AGREEMENT would have required the approval of WSDOT; 2. Jeopardizes its ability to perform pursuant to this AGREEMENT, United States of America laws, Washington state laws, or local governmental laws under which the CONTRACTOR operates; 3. Failure to perform the Project or any part thereof including, but not limited to: a) Failure to build the Project according to the design specifications and all building code required standards; b) Failure to remedy all defects in the performance of the Project and correct all faulty workmanship by the CONTRACTOR or its subcontractors in a timely manner; c) Failure to take any action which could affect the ability of the Project to perform its designated function or takes any action which could shorten its useful life for Project use or otherwise; or d) Failure to make reasonable and appropriate use of the Project real property, facilities, equipment and/or infrastructure. 4. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers substantial performance of the Project; or 5. Fails to perform in the manner called for in this AGREEMENT, or fails, to comply with or, is in violation of, any provision of this AGREEMENT. WSDOT shall serve a notice of termination on the CONTRACTOR setting forth the manner in which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the CONTRACTOR had an excusable reason for not performing, such as events which are not the fault of or are beyond the control of the CONTRACTOR, such as a strike, fire or flood, WSDOT may: a) allow the CONTRACTOR to continue work after setting up a new delivery of performance schedule, or b) treat the termination as a termination for convenience. C. WSDOT, in its sole discretion may, in the case of a termination for breach or default, allow the CONTRACTOR ten (10) business days, or such longer period as determined by WSDOT, in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If the CONTRACTOR fails to remedy to WSDOT's satisfaction the breach or default within the timeframe and under the conditions set forth in the notice of termination, WSDOT shall have the right to terminate this AGREEMENT without any further obligation to CONTRACTOR. Any such termination for default shall not in any way operate to preclude WSDOT from also pursuing all available remedies against CONTRACTOR and its sureties for said breach or default. GCB1512 Page 9 of 13 D. In the event that WSDOT elects to waive its remedies for any breach by CONTRACTOR of any covenant, term or condition of this AGREEMENT, such waiver by WSDOT shall not limit WSDOT's remedies for any succeeding breach of that or of any other term, covenant, or condition of this AGREEMENT. Section 34 Venue and Process In the event that either PARTY deems it necessary to institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the PARTIES hereto agree that any such action shall be initiated in the Superior Court of the State of Washington situated in Thurston County. The PARTIES agree that the laws of the State of Washington shall apply. Section 35 Subrogation A. Prior to Subrogation. WSDOT may require the CONTRACTOR to take such action as may be necessary or appropriate to preserve the CONTRACTOR's right to recover damages from any person or organization alleged to be legally responsible for injury to the Project or other property in which WSDOT has a financial interest. B. Subrogation. WSDOT may require the CONTRACTOR to assign to WSDOT all right of recovery against any person or organization for loss, to the extent of WSDOT's loss. Upon assignment, the CONTRACTOR shall execute, deliver, and do whatever else necessary to secure WSDOT's rights. The CONTRACTOR shall do nothing after any loss to prejudice the rights of WSDOT. C. Duties of the Contractor. If WSDOT has exercised its right of subrogation, the CONTRACTOR shall cooperate with WSDOT and, upon WSDOT's request, assist in the prosecution of suits and enforce any right against any person or organization who may be liable to WSDOT due to damage to the Project. The CONTRACTOR shall attend hearings and trials as requested by WSDOT, assist in securing and giving evidence as requested by WSDOT, and obtain the attendance of witnesses as requested by WSDOT. Section 36 Severability If any covenant or provision of this AGREEMENT shall be adjudged void, such adjudication shall not affect the validity or obligation of performance of any other covenant or provision, or any part thereof, which in itself is valid if such remainder conforms to the terms and requirements of applicable law and the intent of this AGREEMENT. No controversy concerning any covenant or provision shall delay the performance of any other covenant or provision except as herein allowed. Section 37 Counterparts This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONTRACTOR does hereby ratify and adopt all statements, representations, warranties, covenants, and agreements and their supporting materials contained and/or mentioned herein, and does hereby accept WSDOT's grant and agrees to all of the terms and conditions thereof. Section 38 Complete Agreement This document contains all covenants, stipulations, and provisions agreed upon by WSDOT. No agent or representative of WSDOT has authority to make, and WSDOT shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein or made by written amendment hereto. Section 39 Execution This AGREEMENT is executed by the Director, Public Transportation Division, State of Washington, Department of Transportation or the Director's designee, not as an individual incurring personal obligation and liability, but solely by, for and on behalf of the State of Washington, Department of Transportation, in the capacity as Director, Public Transportation Division, or as a designee. Section 40 Binding Agreement The undersigned acknowledge that they are authorized to execute this AGREEMENT and bind their respective agency(ies) and/or entity(ies) to the obligations set forth herein. GCB1512 Page 10 of 13 IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year last written below. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION CONTRACTOR By: By: Brian Lagerberg, Director Public Transportation Division Authorized Representative Title: Print Name: Tony O'Rourke Print Title City Manager Date: Date: APPROVED AS TO FORM By: Susan Cruise Assistant Attorney General Date: July 11, 2013 GCB1512 Page 11 of 13 EXHIBIT I PROJECT SCOPE, SCHEDULE AND BUDGET Total Project Cost 302,000 2013-15 Biennium Grant Amount 240,000 Minimum match requirement 60,400 Project A Expansion of existing park and ride lot to accommodate 114 vehicles. See Attachment A, Regional Mobility Grant Project Application — Location and Description of Work for additional details. GCB1512 Page 12 of 13 Attachment A to Exhibit I Project Application Location and Description of Work GCB1512 Page 13 of 13 AGREEMENT GCB 1725 Selah Firing Center Park and Ride Lot Design and Construct Lot Improvement This Agreement for the design and construction of the Selah Firing Center Park and Ride Lot improvement is made and entered into between the Washington State Department of Transportation, hereinafter the "STATE," and Yakima Transit, of 129 North 2nd Street, Yakima, WA 98901-2937 (a municipal corporation of the State of Washington), hereinafter "TRANSIT." WHEREAS, the STATE and TRANSIT, in the interest of providing transit capacity and mobility improvements in the I-82 Ellensburg to Yakima Corridor, have planned to expand and improve the park and ride lot, titled "Selah Firing Center Park and Ride Lot," hereinafter the "Project"; and WHEREAS, Yakima County is the lessor and the STATE is the lessee and operator of the existing park and ride lot identified as STATE Inventory Control # 5-39-08929,1ocated on Yakima County property; and WHEREAS, the STATE is the fee owner of the expansion portion of the lot Project; and WHEREAS, Federal Highway Administration granted authority to locate the lot expansion within the I-82 interchange right of way and has authorized the access changes necessary in support of the Project by letter, dated March 19, 2014; and WHEREAS, the Project consists of those improvements to be designed and constructed by the STATE as shown in Exhibit B; and WHEREAS, TRANSIT is providing the funding for the Project with funds received from a state Regional Mobility grant. Matching funds for the grant are provided through STATE right of way upon which the lot expansion will be constructed. The Regional Mobility grant funding represents the total expendable funding for the Project and the total obligation of TRANSIT to fund the Project; any changes to the Project will follow the process stated in Section 4. There are no funds available to be expended on this Project other than the state Regional Mobility grant, NOW, THEREFORE, pursuant to chapter 39.34 RCW, the Interlocal Cooperation Act, the above recitals that are incorporated herein as if fully set forth below, and in consideration of the terms, conditions, and performances contained herein, and the attached Exhibits A, and B which are incorporated and made a part hereof, Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 1 of 9 IT IS MUTUALLY AGREED AS FOLLOWS: 1. PLANS, SPECIFICATIONS, AND ESTIMATES (PS&E) 1.1 The STATE, on behalf of TRANSIT, agrees to design and construct the Project in accordance with the terms of this Agreement, the current Standard Specifications for Road, Bridge, and Municipal Construction, and amendments thereto (Standard Specifications) and pursuant to the attached exhibits. Exhibit A is the Cost Estimate and Exhibit B is the Plan with work description details. 1.2 TRANSIT agrees to participate in 30%, 90% and 100% PS&E development reviews and to issue a letter of approval, conditional approval, or rejection of the 100% PS&E for the Project. 1.3 If TRANSIT rejects the 100%PS&E, or the STATE cannot accept or rejects TRANSIT's conditions of approval after the STATE and TRANSIT have in good faith considered the reasons for rejection and both have explored reasonable solutions in order to proceed with the Project as intended herein and the STATE and TRANSIT cannot reach agreement, this Agreement shall automatically terminate and the Project cancelled. TRANSIT agrees to reimburse the STATE for all costs associated with the. cancellation of the Project. 2. ADVERTISEMENT, BID, AWARD, AND COST ADJUSTMENTS 2.1 The STATE shall advertise the Project for bids. Assuming bids are received and TRANSIT and the STATE agree to accept a bid, the STATE will award the contract. 2.2 Prior to accepting and awarding the bid, the STATE shall provide TRANSIT with written notification of the bid prices for the Project, and the STATE and TRANSIT shall review the bid prices in conjunction with the Regional Mobility grant funding and jointly decide if the grant funding, taking into consideration all potential contingencies, is adequate to fully satisfy the bid price. Once the Parties have verified that the Project funding is adequate, TRANSIT shall have two (2) working days from the date of verification of funding to provide the STATE written approval of the bid price for the Project, or request the Project be cancelled. 2.3 In the event of cancellation, TRANSIT agrees to reimburse the STATE for all costs incurred by the STATE associated with the Project. This Agreement shall then terminate upon STATE's receipt of payment for all work completed prior to the date of cancellation. 2.4 . If TRANSIT approves the bid price for the Project and the STATE does not award or execute the Project contract, but thereafter re -advertises the Project for bids, the STATE agrees to pay all STATE costs to re -advertise the Project to the extent that the Regional Mobility funds are available to reimburse the STATE for said costs. TRANSIT agrees that the STATE is not Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 2 of 9 responsible for increased bid prices or delay to the Project or other impacts to TRANSIT resulting from re -advertising the Project. If the STATE shall re -advertise the Project as provided herein, TRANSIT shall accept or reject the bid price as provided in Section 2.2 and 2.3 above. 2.5 If TRANSIT approves the bid price for the Project and the STATE does not award or execute the Project contract and does not re. -advertise the Project for bids, this Agreement shall terminate upon STATE's receipt of all reimbursement payments in accordance with Section 6. TRANSIT agrees that the STATE is not responsible for potential increased costs for the Project, delay to the Project or other impacts to TRANSIT resulting from not awarding the Project contract. 3. CONSTRUCTION 3.1 The STATE will be TRANSIT's representative during construction and will act as owner in the administration of the contract for the Project. The STATE will designate a STATE Project Engineer as STATE's representative to provide all services and tools, including but not limited to construction administration, inspection, materials testing, and representation, necessary to administer and manage the contract to ensure that the Project is constructed in accordance with the contract. • 3.2 TRANSIT may at all times consult with and inquire of the STATE Project Engineer, attend all meetings, and have access to all documentation concerning the Project. TRANSIT shall not provide direction, directly or indirectly to the STATE's contractor. All formal contacts between TRANSIT and the contractor shall be through the STATE's representative. 3.3 If it becomes known that field changes or conditions will result in an increase in costs for the Project exceeding the total amount available, the STATE shall within three (3) working days consult with TRANSIT. Both Parties mutually agree to review all available options at that time. to move the Project forward, or implement the provisions of Section 4.9. 3.4 TRANSIT may inspect the Project at its sole cost and expense. All contact between TRANSIT's inspector and the contractor shall be only through the STATE's inspector or the STATE's representative identified above. 3.5 The STATE will prepare the final construction documentation in accordance with the STATE's Construction Manual. The STATE will maintain one set of plans as the official "as - built" set, then make notations in red ink of all plan revisions typically recorded per standard STATE practices, as directed by the STATE's Construction Manual. Once TRANSIT has accepted the Project per Section 5, the STATE will provide one reproducible set of as -built plans to TRANSIT within thirty (30) working days following receipt of a request for a set from TRANSIT. Agreement GCB 1725 Selah Firing Center Park & Ride Lot • Page 3 of 9 4. CONTRACT CHANGES 4.1 Contract changes are subject to and contingent upon the availability of the state Regional Mobility grant funding to pay for any changes to the Project. If increases in costs as a result of required or elective changes exceed the available grant as provided herein, the STATE shall initiate Project modifications or take such other steps to maintain Project contract costs within the total available state Regional Mobility grant funding. 4.2 Changes to the Project contract will be documented by change order in accordance with the Standard Specifications. The STATE shall process change orders for all changes affecting the Project in the manner set forth in subsection 1-2.4C (3), Approval of Changes/Checklist, STATE Construction Manual, current edition. 4.3 Required change orders involve such changes in quantities or alterations to the Project as are necessary to satisfactorily complete the Project. All other change orders affecting the Project shall be considered elective. 4.4 TRANSIT authorizes the STATE to initiate all required changes affecting the Project and to negotiate, document and execute the associated change orders. 4.5 The STATE will advise TRANSIT of any proposed required changes affecting the Project as soon as possible and provide it with an opportunity, if time permits, to review the change before implementation. The STATE will determine the length of the review time based upon the need to expedite the change to avoid delay to the Project contract. 4.6 TRANSIT may request additions to the Project through the STATE in writing. The STATE will implement the requested changes as elective changes, provided that a change complies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations, and/or STATE design policies, does not unreasonably delay critically scheduled Project contract activities, and complies with the funding constraints identified in Section 4.1. 4.7 All elective changes to the Project shall be approved in writing by TRANSIT before the STATE directs the contractor to implement the change. TRANSIT agrees to pay for the increases in cost, if any, for such elective changes requested by TRANSIT, subject to available funding and in accordance with Section 6. 4.8 The STATE will make available to TRANSIT all change order documentation related to the Project. 4.9 In the event it is determined that TRANSIT does not have sufficient grant funds to complete the Project, both Parties mutually agree to determine the future of the Project and/or possible modifications or downsizing of the Project to the minimum level of the Project scope as submitted for grant award. Any downsizing or modifications to the Project must be approved by Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 4 of 9 the state Regional Mobility Office and shall first be accomplished by reducing the paved area. If it is determined that the Project cannot proceed, the Project shall be brought to a level that is safe for public use and the STATE will terminate the remainder of the Project contract. In the event the Project is terminated, Section 5 shall apply for that portion of the Project completed up to the time of termination. TRANSIT agrees to pay all costs associated with termination, and pay all contractor claims (Section 8) in accordance with Section 6. 5. ACCEPTANCE 5.1 Prior to Project acceptance, the STATE and TRANSIT will perform a joint final inspection. TRANSIT agrees, upon satisfactory completion of the Project constructed in accordance with the PS&E and receipt of a Notice of Physical Completion, asdetermined by the. STATE, and the close out of the Project by the STATE in accordance with applicable STATE and Federal regulations, to deliver a letter of acceptance which shall include a release of the STATE from all future claims or demands of any nature resulting from the performance of the Project, subject to any contractor claims (Section 8) caused by the negligent acts or omissions of the STATE in administering the Project. 5.2 If a letter of acceptance is not received by the STATE within ninety (90) calendar days following delivery of a Notice of Physical Completion and close out of the Project to TRANSIT, the Project shall be considered accepted by TRANSIT, and the STATE shall be released from all future claims and demands of any nature resulting from the performance of the Project, subject to any contractor claims (Section 8) caused by the negligent acts or omissions of the STATE in administering the Project. 5.3 TRANSIT may withhold its acceptance of the Project by submitting written notification to the STATE within ninety (90) calendar days following delivery of a Notice of Physical Completion of the Project and close out of the Project. This notification shall include the reason(s) for withholding acceptance. The Parties shall then work together to resolve the outstanding issues identified in TRANSIT's written notification. 6. PAYMENT 6.1 TRANSIT, in consideration of the faithful performance of the Project performed by the STATE and its contractor(s), agrees to reimburse the STATE for the actual direct salary and direct non -salary costs of the Project, as estimated in Exhibit A. 6.2 The Indirect Cost Recovery Rate for the STATE's overhead is not applicable to this Project. 6.3 The STATE shall provide detailed invoices to TRANSIT for (a) STATE costs incurred as identified in section 6.1, (b) Project work performed by the STATE's contractor(s), and/or (c) for costs incurred as provided in Sections 1, 2, and 4. TRANSIT agrees to make payment within Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 5 of 9 • thirty (30) calendar days from receipt of an invoice. A payment will not constitute agreement as to the appropriateness of any item. At the time of the final invoice, the Parties will resolve any discrepancies. Payments shall be sent to: Invoices shall be sent to: Washington State Department of Transportation Attn: Cashier P.O. Box 47305 Olympia, WA 98504-7305 Yakima Transit c/o Kevin Futrell 129 North 2nd Street Yakima, WA 98901-2937 6.4 Notwithstanding the foregoing, the STATE and TRANSIT recognize the Project is funded by the 'state Regional Mobility grant which expires on June 30, 2015. Only Project costs incurred by June 30, 2015 and paid by TRANSIT not later than July 8, 2015, are eligible to be reimbursed from the state Regional Mobility grant. The STATE agrees to exercise best efforts to schedule Project construction, purchase of materials, and perform the construction so that as much of the Project costs will occur by June 30, 2015, with payment made by July 8, 2015. This will allow TRANSIT to fully expend the state Regional Mobility grant funding. 7. RIGHT OF ENTRY 7.1 The STATE hereby grants to TRANSIT and its authorized agents and employees, a right of entry upon all land in which the STATE has an interest, including a leasehold interest, for the purpose of inspection, per Sections 3.4 and 5.1. 8. CLAIMS 8.1 Claims for Additional Payment 8.1.1 In the event the contractor makes claims for additional payment associated with the Project; the STATE will immediately notify TRANSIT of such claims. Such claims shall be made in the manner and form as provided for in the Standard Specifications. 8.1.2 TRANSIT shall not be obligated to pay such claims or cost of defense to the extent that the claims are caused, by the negligent acts or omissions of the STATE in administering the Project. 8.1.3 TRANSIT shall have the right to review and comment on any settlement for claims associated with the Project; however, the STATE shall have the ultimate decision and right to settle such claims. If agreement cannot be reached between TRANSIT and the STATE on a claim settlement, the Parties agree to follow the dispute resolution procedure in Section 10.6. Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 6 of 9 9. OWNERSHIP, OPERATION and MAINTENANCE 9.1 Upon TRANSIT's acceptance of the Project as provided in Section 5, the STATE shall be the owner of the Project improvements constructed on state owned right of way. Yakima County will continue to own and the STATE will continue to operate and maintain the leased area. 9.2 TRANSIT and the STATE agree that as a condition for executing this Agreement, TRANSIT shall have the non-exclusive use of the Project property until such time as the STATE determines it is not in the STATE's best interest to continue use by TRANSIT or the lease with Yakima County is terminated or expires. 10. GENERAL PROVISIONS 10.1 Amendment: This Agreement may be amended or modified only by the mutual agreement of the STATE and TRANSIT. Such amendments or modifications shall not be binding unless they are in writing and signed by personsauthorized to bind each of the Parties. No verbal agreement may supersede, replace, or amend this section. 10.2 Termination: Neither the STATE nor TRANSIT may terminate this Agreement without the written concurrence of the other Party, except as otherwise provided under Sections 1.3, 2,2, 2.3, 2.5, or 4.9. 10.2.1 If this Agreement is terminated prior to the fulfillment of the terms stated herein, TRANSIT agrees to reimburse the STATE for all costs in accordance with Section 6 which the STATE has incurred for the Project up to the date of termination, as well as the costs of all non -cancelable obligations and/or contractor claims. 10.3 Any termination of this Agreement shall not prejudice any rights or obligations accrued to the STATE and TRANSIT prior to termination. 10.4 Independent contractor: The STATE shall be deemed an independent contractor for all purposes, and the employees of the STATE or any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be employees of TRANSIT. 10.5 Indemnification: 10.5.1 The Parties shall protect, defend, indemnify, and hold harmless each other and their employees and authorized agents, while acting within the scope of their employment as such, from any and all costs, claims, judgments, and/or awards of damages (both to persons and/or property), arising out of, or in any way resulting from, the Parties' obligations and the construction of the Project to be performed pursuant to the provisions of this Agreement. The Parties shall not be required to indemnify, defend, or save harmless the other Party if the claim, suit, or action for injuries, death, or damages (both to persons and/or property) is caused by the negligence of the other Party; provided that, if such Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 7 of 9 claims, suits, or actions result from the concurrent negligence of (a) the STATE, its employees, authorized agents, or contractors and (b) TRANSIT, its employees or authorized agents, or contractors, or involves those actions covered by RCW 4.24.115. The indemnity provisions provided herein shall be valid and enforceable only to the extent of the negligence of each Party, its employees, authorized agents, and/or contractors. 10.5.2 TRANSIT 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 while performing work under this Agreement while located on state-owned right of way. For this purpose, TRANSIT, by mutual negotiation, hereby waives with respect to the STATE only, any immunity that would otherwise be available to it against such claims under the Industrial Insurance, provisions chapter 51.12 RCW. 10.5.3 This indemnification and waiver shall survive the termination of this Agreement. 10.6 Disputes: In the event that a dispute arises under this Agreement, it shall be resolved as follows: The STATE and TRANSIT shall each appoint a member to a disputes board; these two members shall select a third board member not affiliated with either Party. The three-member board shall conduct a dispute resolution hearing that shall be informal and unrecorded. An attempt at such dispute resolution in compliance with aforesaid process shall be a prerequisite to the filing of any litigation concerning the dispute. The Parties shall equally share in the cost of the third disputes board member; however, each Party shall be responsible for its own costs and fees. 10.7 Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the Parties agree that any such action or proceedings shall be brought in Thurston County Superior Court. Further, the Parties agree that each will be solely responsible for payment of their own attorney's fees, witness fees, and costs. 10.8 Audits/Records: All records for the Project in support of all costs incurred shall be maintained by the STATE for a period of not less than six (6) years. TRANSIT shall have full access to and right to examine said records during normal business hours and as often as it deemed necessary. Should TRANSIT require copies of any records, it agrees to pay the costs thereof. The Parties agree that the work performed herein is subject to audit by either or both Parties and/or their designated representatives, and/or state of Washington and/or the federal government. 10.9 Term of Agreement: Unless otherwise provided herein, the term of this Agreement shall commence as of the date this Agreement is fully executed and shall continue until the Project is accepted by TRANSIT pursuant to Section 5 or as otherwise provided herein, and all obligations for payment have been met. Agreement GCB 1725 Selah Firing Center Park & Ride Lot Page 8 of 9 10.10 Working Days: Working days for this Agreement are defined as Monday through Friday, excluding Washington State holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Party's date signed last below. Yakima Transit STATE OF WASHINGTON DEPARTMENT OF TRANSPORTATION By: By: Name: Don Whitehouse Title: Region Administrator Date: Date: APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: Date: Attorney Assistant Attorney General Agreement GCB 1725 Date: Selah Firing Center Park & Ride Lot Page 9 of 9 AGREEMENT GCB 1725 EXHIBIT "A" COST ESTIMATE Design and Construct Lot Improvement Project: Selah Firing Center Park and Ride Lot NO. DESCRIPTION AMOUNT - Design Phase - 1 Environmental documentation, survey, design, plans, specifications and estimate (PS&E) preparation, advertisement, award contract $ 42,794 Design Total $ 42,794 - Construction Phase - 2 Construct by Contract: clear, grade, drain, fence, surface, pave HMA, stripe, curb, sign and appurtenances $ 127,595 3 Wa St Sales Tax (Amount on State R/W) = $ 76,054 7.9% $ 6,008 4 Wa St Sales Tax (Amount on County R/W) = $ 51,541 0% $ - Contract Subtotal $ 133,603 5 Construction Engineering & Administration $ 43,759 6 Contract Contingencies (4%) $ 5,344 7 Pavement Repair & Seeding by State Forces $ 4,500 Construction Total $ 187,206 Total Agreement Amount $ 230,000 Notes: Maximum amount available for this Project is $230,000.00 Appurtenances may include but are not limited to: cul-de- sac, illumination Appurtenances may be added per Agreement Section 4. 'Contract Change' after bid award, when remaining funds can be determined. Contract Contingency funds may be utilized when approaching the end of the contract work. Agreement GCB 1725 Exhibit A - Cost Estimate Sheet 1 of 1 AGREEMENT GBC 1725 SELAH FIRING CENTER PARK & RIDE LOT Exhibit B — Plan & Details Project Work Description: 1. Complete environmental documentation and P.S. &E. for Project. 2. Advertise, award and administer construction contract. 3. Clear site, remove existing fence, and perpetuate the existing utilities. 4. Grade and drain existing and expansion areas. 5. Place and compact crushed surfacing material. 6. Asphalt the access driveway, as needed, and the existing and expansion lot areas. 7. Construct fencing, curbing, striping, signs, and other items necessary to complete the lot enlargement and improvement. 8. If funding permits, construct lot cul-de-sac, illumination, patron shelter, and bike rack. Agreement GCB 1725 Exhibit B — Plan Page 1 of 1