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HomeMy WebLinkAbout22-213-TRN-001 Interlocal Agreement INTERLOCAL AGREEMENT #22-213-TRN-001 BETWEEN THE SAMISH INDIAN NATION AND THE CITY OF ANACORTES FOR PUBLIC STREET IMPROVEMENTS FOR THE EARLY LEARNING CENTER This agreement is made and entered into on ______________, by and between the Samish Indian Nation, a federally recognized Tribal Nation in the State of Washington, hereinafter called Ðthe NationÑ and the City of Anacortes, a municipal corporation of the State of Washington, hereinafter called ÐCityÑ, hereinafter individually called ÐPartyÑ or collectively ÐPartiesÑ. I. RECITALS WHEREAS, the Nation and the City have authority under the Washington Interlocal Cooperation Act, Chapter 39.34 RCW, to enter into this Interlocal Agreement ("Agreement") as set forth herein; and WHEREAS, the Nation intends to construct an early learning center near 16th Street in Anacortes (hereinafter the "Improvements" and/or the "Project"); and WHEREAS, the Nation and the City have agreed to procedures for the design and construction of public street improvements associated with the project using federal Tribal Transportation Program (TTP) Funds and/or other funding identified by the Nation; and WHEREAS, the proposed street improvements are identified in the NationÓs approved Long Range Transportation Plan and Tribal Transportation Improvement Program and on the National Tribal Transportation Facility Inventory (NTTFI). NOW, THEREFORE, the Parties hereto, in consideration of the promises, mutual covenant and agree as follows: II. AGREEMENT A. CITY OBLIGATIONS 1. Design Development. The City shall cause to be prepared plans and specifications adequate for the construction of the Improvements. The City shall retain such design professionals as are necessary for the accomplishment of these tasks. The City shall secure the services of necessary design professionals pursuant to the Washington State Department of Transportation Local Agency Guidelines Manual (ÐLAG ManualÑ). The plans and specifications for the Improvements shall meet City Public Works construction standards and comply with applicable federal and state requirements, including those set forth in the LAG Manual. The City shall, upon completion of plans and specifications, obtain as necessary, estimates for construction of the Improvements as required by Chapter 39.04 RCW. 2. Bid Packages. The City shall cause to be prepared bid packages for construction of the Improvements. The City shall solicit construction contractors using the LAG Manual requirements. The bid packages shall be prepared in compliance with Chapter 39.04 RCW and all applicable federal and state regulations, including those contained in the LAG Manual. The City shall require that the design professionals who create the bid packages engage in the normal course of providing information and clarifications to potential bidders, assist in bid openings and assist in the evaluation of bids, including recommendation of award in tğŭĻЊƚŅБ compliance with Chapter 39.04 RCW and the LAG Manual. The bid packages shall identify the City as the "Owner" and contracting party for construction of the Improvements. The Project shall be put out to bid at time for completion of the Improvements pursuant to a construction schedule established by the City. The Parties hereby acknowledge that LAG Manual procurement and contracting rules meet all of the NationÓs contracting requirements. 3. Property Acquisition. The City shall not exercise its powers of eminent domain to acquire any right of way or construction easements for this Project. 4. Environmental Review. An environmental review, pursuant the National Environmental Protection Act (NEPA), shall be conducted by the Nation. The Nation shall arrange for completion of all required permits including, NEPA documentation and any required SEPA documentation. 5. Bid Solicitation and Award. a. The City shall, in full compliance with applicable state law and the LAG Manual provisions, administer the process of bid solicitation for the Improvements, including provision of supplemental information to potential bidders, bid opening, bid review and bid award and protest. The City may delegate these activities to its design professionals and the City shall be named the "Owner" and contracting agency for the project. All bids shall be solicited using the LAG Manual procurement rules. The Parties hereby acknowledge that LAG Manual procurement and contracting rules meet all of the NationÓs contracting requirements. b. All bids shall be received at the time and place specified in the bid documents and advertisements and opened and read aloud as required by the LAG Manual. After opening and reading the bids, the City shall take custody of the bids and review them for accuracy and completeness as required by the LAG Manual. The City shall also prepare a bid tabulation showing all items for work and the bid amounts for each item, the extended amounts for each item and the total amount of the bid. The bid tabulation shall also contain the Engineer's Estimate in the same manner. A copy of the bid tabulations shall be transmitted to the Nation and additional copies shall be made available for public inspection. 6. Project Administration and inspection. a. The City shall, in consultation with the Nation, undertake the administration of all phases of post-bid construction of the improvements contemplated herein until such improvements are complete, have been "final" accepted and all costs and expenses paid and/or disputes, if any, resolved. Such administration shall be in full compliance with state law and the LAG Manual. b. The City may hire a third party to administer the projects and/or to conduct inspections and act as Owner's representative. The costs related thereto shall be paid by the City with reimbursement from the Nation. 7. Permits. The City shall seek to obtain all necessary permits in which the City has jurisdiction and in accordance with the City's Municipal Code. 8. Records. The City or third-party administrator shall keep complete records of all its activities hereunder. The Nation will provide the City with a list of records the Nation is required to maintain by or submit to relevant federal agencies, and the City shall provide a copy of any such records in the CityÓs possession to the Nation. The City shall not be required by this Agreement to retain additional records or records beyond their prescribed retention requirements under the Public Records Act at Chapter 42.56 RCW. All records shall be maintained in conformance with Washington law. tğŭĻЋƚŅБ B. PAYMENT OF COSTS AND EXPENSES/OWNERSHIP OF IMPROVEMENTS 1. Payment of Expenses. The Parties expect that all Expenses, including Design Development, Bid Packages, Environmental Review, Permit Fees, construction and labor costs, inspection fees and project administration fees, whether owed to a third party ("Construction Fees") or reimbursable to the City ("City Reimbursable ExpensesÑ) will be paid by the Nation using federal Tribal Transportation Program funding and/or other funding identified by the Nation. The City shall not approve or incur any expenses of any kind related to the Project, for design, administration or management, or construction, or any other expenses or costs, without the approval of the Nation. The Nation shall be responsible for all Construction Fees and City Reimbursable Expenses related to the Improvements. The City will work with the Nation on all compliance requirements per funding sources. The City shall not be responsible for any loss of grant funds or interruption of federal funding for any reason. The City shall once a month, upon the receipt of invoices related to the design, permitting, evaluation and approval of the Improvements from all engineers, consultants, material providers, contractors, and the Owner's representative/inspector, provide such invoices to the Nation for review. The City thereupon shall seek reimbursement for such payments from the Samish Indian Nation. All change orders resulting in change of cost need to be approved by Samish Indian Nation prior to work being performed. Samish Indian Nation is not responsible for any additional cost or expenses that have not be approved by the Nation. 2. Ownership of Improvements. a. The Improvements shall be exclusively owned by the City, which shall have the sole obligation to maintain the Improvements. The Nation shall, upon request, execute any reasonable document establishing the City's ownership of the Improvements. b. Any third-party warranties attaching, and/or claims related, to either the Improvements are hereby assigned by the Nation to the City. The Nation shall, upon request, cooperate with the City to document such assignment and/or to pursue a claim or warranty claim against a third party. C. MISCELLANEOUS PROVISIONS 1. Legal Provisions. This Agreement shall be construed pursuant to the laws of the state of Washington. Venue for any suit or action between the parties shall be exclusively in Skagit County Superior Court. The prevailing party in any action shall receive an award of its reasonable attorney's fees and costs, including those incurred on appeal. 2. Duration. The term of this Agreement shall commence upon mutual acceptance by the parties and terminate when the projects are complete, final acceptance has been made, all expenses have been paid and any disputes resolved; provided, that the parties accrued rights and obligations at the time of termination as established herein, including, but not limited to, the provisions in this Paragraph C, shall survive termination. 3. Administration/Notices. The following individuals are designated as representatives of the respective parties. The representatives shall be responsible for administration of this Agreement and for coordinating and monitoring performance under this Agreement. In the event such representatives are changed, the Party making the change shall notify the other Party: The NationÓs representative shall be Jon Barrett, Planning Director. tğŭĻЌƚŅБ The City's representative shall be Steven Lange, Project Manager. Any notice required to be given in writing pursuant to the terms of this Agreement shall be addressed as follows: To the Nation: Samish Indian Nation c/o Jon Barrett 8327 Summit Park Road Anacortes, WA 98221 Phone: (360) 726-2781 Email: jbarrett@samishtribe.nsn.us To the City: City of Anacortes Public Works Department c/o Steve Lange P.O. Box 547 Anacortes, WA 98221 Phone: 360.299.1983 Email: stevel@cityofanacortes.org With copy to: City of Anacortes Legal Department c/o Tiffany Matson P.O. Box 547 Anacortes, WA 98221 Phone: 360.299.1971 Email: contracts@cityofanacortes.org Any notice addressed to the postal address to the recipient, as set forth above, shall be deemed delivered and received the third day thereafter, any email message shall be deemed delivered upon transmission. The Parties shall be deemed to have received such notices at the addresses and telephone numbers listed above, unless the Party(ies) shall have given written notice to the other Party of any change(s). 4. Mutual Indemnity. a. The Nation shall indemnify the City for any claim of loss by a third party for personal injury or property damage to the extent such loss resulted from an act or omission of the Nation, its employees or its agent. Such indemnity obligation includes the amount of any judgment in favor of such a third party and the cost of defense of any claim, including attorney fees. b. The City shall indemnify the Nation for any claim of loss by a third party for personal injury or property damage to the extent such loss resulted from an act or omission of the City, its employees or its agent. Such indemnity obligation includes the amount of any judgment in favor of such a third party and the cost of defense of any claim, including attorney fees. c. Each Party shall, upon learning of any third-party claim or potential third-party claim, shall give written notice of such claim or potential claim to the other Party. d. No Party shall admit liability of the other Party nor settle or compromise any claim in a manner requiring contribution from or imposing liability on the other Party without the other Party's prior written approval. tğŭĻЍƚŅБ 5. Relationship of Parties. The Parties are not acting as partners or as joint venturers hereby. Neither Party assumes the liabilities of the other Party related to the activities contemplated hereby. This Agreement shall not be construed to confer any benefit on any person or entity not a Party hereto. Џ͵Integration/Amendment. This Agreement constitutes the entire understanding between the Parties and any oral agreements or representations shall be disregarded. Any amendments to this Agreement shall become effective only upon mutual written agreement of the Parties. 7. Interpretation. No inference or presumption shall be drawn if a Party or its attorney prepared and/or drafted this Agreement; it shall be conclusively presumed that the Parties participated equally in its preparation and/or drafting. Each Party was represented by counsel in the preparation of this Agreement. Should any provision of this Agreement be held by a court to be invalid or unenforceable, the other provisions shall remain in full force and effect. 8. Force Majeure. If either Party is rendered unable, wholly or in part, by force majeure or any other cause of any kind not reasonably within its control to perform or comply with any obligation or condition of this Agreement upon giving written notice to the other Party, such obligation or condition shall be suspended during the continuance of the inability so caused and such Party shall be relieved of any liability during such period. The term force majeure shall include, without limitation by the following enumeration, acts of God, federal, state, county, or municipal orders, regulations or directives of any governmental authority or persons purporting to act therefor, or when the supply of product or any facility of production, manufacture/storage, transportation, distribution or delivery contemplated by either Party is prevented or delayed by terrorist or enemy attack, pandemics, riots, other disturbances, earthquakes, hurricanes, strikes, or lockouts of any class of workmen, or stoppage of labor, or damage to piers or essential equipment, floods, fire, explosion, or destruction from any cause of any character either similar or dissimilar to the foregoing and reasonably beyond the control of the Party failing to perform. 9. Signing/Recording. This Agreement may be executed in counterparts and shall be recorded with the Skagit County Auditor at the NationÓs Expense. 10. Dispute Resolution. In the event of a dispute between the City and the Nation regarding the rights, duties, or liabilities of the parties under this Agreement, or the delivery of services under this Agreement, the Nation's Tribal Council; and the City Council shall designate representatives who shall review such dispute and discuss options for resolution. If any dispute, controversy, or claim arising out of or relating to this Agreement or the alleged breach of such Agreement cannot be resolved by the parties, such dispute shall be submitted to binding arbitration in accordance with the rules and procedures of the Commercial Rules and Expedited Procedures of the American Arbitration Association, with appeal limited to that set forth in Chapter 7.04 RCW. The judgment or award rendered by the arbitrator may be entered and enforced in Skagit County Superior Court. In any arbitration or suit to compel arbitration or to enforce an arbitrator's award, the prevailing party shall receive an award of its reasonable attorney fees and costs, including those incurred on appeal. 11. Nation's Limited Waiver of Sovereign Immunity; Jurisdiction; Binding Arbitration; Remedies Against Tribal Assets; Tribal Council Resolution. a. The Nation expressly and irrevocably grants a limited waiver of its immunity and consents to suit by City and only for the benefit of the City in the Skagit County Superior Court and in the United States District Court for the Western District of Washington, tğŭĻЎƚŅБ and if the Skagit County Superior Court and the United States District Court for the Western District of Washington are without, abstain, or decline to exercise jurisdiction, in the Samish Tribal Court, at the City's sole option, to enforce the terms of this Agreement. The NationÓs limited waiver of sovereign immunity in this Agreement is only for the benefit of the City and confers no rights or benefits on any third party. b. The Nation and City voluntarily submit themselves to the exclusive jurisdiction of the Skagit County Superior Court, to the exclusion of any other court, forum, remedy, or proceeding, to resolve any Dispute; provided, however, if for any reason the Skagit County Superior Court does not have, abstains, or otherwise declines to exercise subject matter jurisdiction over any Dispute, the Nation and City voluntarily submit themselves to the exclusive jurisdiction of the United States District Court for the Western District of Washington, to the exclusion of any other court, forum, remedy, or proceeding, to resolve any Dispute; and, farther provided, if for any reason the United States District Court for the Western District of Washington is without, abstains or otherwise declines to exercise subject matter jurisdiction over any Dispute, the Nation and City voluntarily submit themselves to binding arbitration as the exclusive remedy to resolve any Dispute ("Binding Arbitration"). The Commercial Arbitration Rules of the American Arbitration Association shall apply in Binding Arbitration. If a question exists whether a matter is a Dispute subject to Binding Arbitration, that question shall be decided solely by the arbitrator(s), whose decision shall be final and binding, the same as any other matter subject to Binding Arbitration herein. Costs of the arbitration shall be borne equally by the parties. Under American Arbitration Association rules, the arbitrator(s) is limited to entry of an order or judgment to enforce the terms of this Agreement. Each Party consents to suit solely by the other Party in the Skagit County Superior Court and the United States District Court for the Western District of Washington in the order and subject to the considerations described in the first sentence of this subsection, and in the Samish Tribal Court solely at the instance of the City if and after the Skagit County Superior Court and the United States District Court for the Western District of Washington both determine, or the Parties agree, that such courts are without jurisdiction or such courts abstain or otherwise decline to exercise jurisdiction to (i) enforce the Parties' agreement to resolve any Dispute by Binding Arbitration; (ii) confirm, enter judgment on, and enforce any award arising out of Binding Arbitration in accordance with standards set by the Federal Arbitration Act; and (iii) vacate, modify, or correct any decision or award arising out of Binding Arbitration in accordance with standards set by the Federal Arbitration Act. As to any Dispute submitted to Binding Arbitration, the parties expressly waive any right to seek judicial remedies, except as provided above, including the right to a jury trial. In a Binding Arbitration proceeding, interpretation of this Agreement shall be governed by Washington state law. c. The parties agree that the City shall have all legal remedies available now and during the term this Agreement under Washington state law, except as limited by this Agreement. d. To the extent exhaustion of tribal remedies under federal law may apply to any dispute that arises under this Agreement, the Tribe expressly waives any such exhaustion requirement in favor of the dispute resolution procedures set forth in this Section. If for any reason any Dispute is deemed to be or may be subject to any rule of law, equity, comity, or otherwise requiring exhaustion of Tribal remedies, the Parties designate Binding Arbitration, including procedures for enforcement and review thereof, as provided in subsection b herein, as the exclusive Tribal remedy. If any proceeding is initiated in any Tribal Court or any other Tribal forum, whether legislative, executive, judicial, or otherwise, relating to a Dispute without CityÓs advance written consent (a "Proceeding"), the Nation shall immediately give notice thereof to the City and seek dismissal of such Proceeding and take and follow such other action relating to such Proceeding as required by the City. tğŭĻЏƚŅБ IN WITNESS THEREOF, the Samish Indian Nation has caused this instrument to be executed by its Chairman, being thereunder duly authorized and the City of Anacortes has caused this instrument to be executed by its Mayor, being thereunto duly authorized. SAMISH INDIAN NATION, WASHINGTON _______________________________ Thomas Wooten, Chairman APPROVED AS TO FORM _________________________ Dorsay & Easton LLP, Samish Tribal Attorney CITY OF ANACORTES, WASHINGTON ___________________________ Matt Miller, Mayor ATTEST: _________________________ Steven D. Hoglund, City Clerk APPROVED AS TO FORM _________________________ Darcy Swetnam, City Attorney tğŭĻАƚŅБ SCOPEOFWORK CITYOFANACORTES TH 16STREET,DAVENUE,ANDCAVENUEIMPROVEMENTS The work on this project shall be accomplished in accordance with the Standard Specifications for Road, Bridge and Municipal Construction, current English edition, as issued by the Washington State Department of Transportation (WSDOT) and the American Public Works Association (APWA), Washington State Chapter (hereafter ÐStandard SpecificationsÑ). The Standard Specifications, as modified or supplemented by the Amendments to the Standard Specifications and these Special Provisions, all of which are made a part of the Contract Document, shall govern all of the Work. DESCRIPTION OF WORK th The project provides for the infrastructure within the Right-of-Way of D Avenue, and 16 Street, including but not limited to Management of Design and Construction Consultants, Environmental Impacts Statements, Surveying, Sanitary Sewer Conveyance, Storm Drainage Conveyance, Storm Water Quantity and Quality (On-site and Off-site), Water System Improvements, Excavation Work to make room for improvements, Traffic Circles for Traffic Calming, Cement Traffic Curb and Gutter, Cement Concrete Sidewalk, Cement Concrete Driveway Entrances, Cement Concrete Curb Ramps, Detectable Warning, Paint Striping and markings, Rapid Flashing Beacons, Signage, Asphalt, Monumentation, Landscaping, Power Conduits, Communication and Cable Conduits, Gas Lines, Fiber Conduits, Utility Coordination and other work and appurtenances necessary to complete the work required for this project as outlined in Exhibit A, B, and C. The project is located: thth - D Avenue, 15 Street to 16 Street (Exhibit A) thth - D Avenue, 16 Street to 17 Street (Exhibit B) th - 16 Street, C Avenue to D Avenue (Exhibit C) tğŭĻБƚŅБ DocuSign Envelope ID: 2859C6F6-463D-4E83-970C-BC4D6D1910E3 R W R\W— R\W I RWW W I RWe tMrN [ I Ya. YDV,PkVI 11 TP I'NO1'8u n Y IN C MN ',WAI: x d r I m�� w 41P,k0 GPR QUo p II u" V3RG)V�,I R N i MN ;vVYfdk[ ..._._ ... � ;. ��i�, w��„ t�.' ,� � � t'���Vk�R✓�49�Y°"�;drhti"If�y,. p� G E pz n o a CNNN P d i LO 3 C Tr v Z r Y r� ,V1 t� (/_ r z� s m < >> n v c) rn�Ql m b P p�°tdw�°ate rr _, — R\W— • ■ n w v n 0 A O 0 r D N man x�' ' O F m .q `N r7 �n V V d"I D ' me 7. A 0 exk-� 1,6 1-r