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AG 18-062 RETURN TO: PW ADMIN EXT: 2700 ID#:374$ CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/DIV: PUBLIC WORKS/yf/ LAffiQ/1fA1//(l E1/e,7V1"- 2. ORIGINATING STAFF PERSON: 2 y7buGETIL' EXT: 21s-3 3. DATE REQ.BY: LJ7/11/$ 3. TYPE OF DOCUMENT(CHECK ONE): _/ o CONTRACTOR SELECTION DOCUMENT(E.G.,RFB,RFP,RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT o PROFESSIONAL SERVICE AGREEMENT o MAINTENANCE AGREEMENT o GOODS AND SERVICE AGREEMENT o HUMAN SERVICES/CDBG o REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT(E.G.BOND RELATED DOCUMENTS) o ORDINANCE 0 RESOLUTION o CONTRACT AMENDMENT(AG#): ❑ INTERLOCAL 7c OTHER Mau 4. PROJECT NAME: 6W,C r In'i',^_Z f'I S 3 0 5rWig 60.t UT 44T ffiGt+bwIll 141 5. NAME OF CONTRACTOR:zr/ AleivE;/ILC, ADDRESS: 963 S Z93 $r filto©Gft G/ L/A Qg1'Jo3 TELEPHONE: E-MAIL: FAX: SIGNATURE NAME:I,/4vM 4ZZObti TITLE: (ovoe•V't( 6. EXHIBITS AND ATTACHMENTS:❑ SCOPE,WORK OR SERVICES o COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE 0 ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES 0 PRIOR CONTRACT/AMENDMENTS2 CFW LICENSE# BL,EXP. 12/31/ UBI 403 /i/ 2t9(plp 3 ,EEXP.7 (/(8' I 7. TERM: COMMENCEMENT DATE: - 16— 11e COMPLETION DATE: /I 6 46 8. TOTAL COMPENSATION:$ (INCLUDE EXPENSES AND SALES TAX,IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE-ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑YES ❑NO IF YES,MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED: o YES ❑NO IF YES,$ PAID BY: o CONTRACTOR ❑CITY RETAINAGE: RETAINAGE AMOUNT: ❑RETAINAGE AGREEMENT(SEE CONTRACT)OR ❑RETAINAGE BOND PROVIDED o PURCHASING: PLEASE CHARGE TO: covet Araut376 49144e5 9. DOCUMENT I CONTRACT REVIEW INITIAL/ P ATE REVIEWED INITIAw7/�P ATE APPROVED �•�l e+Jep [X PROJECT MANAGER i� +Ak �/�s A 311 ,, DIVISION MANAGER PM/ •1IL 3 I , IQ DEPUTY DIRECTOR { �z✓3 111r. DIRECTOR1,r� MO - ❑ RISK MANAGEMENT (IF APPLICABLE) dd LAW DEPT g/DffI g g toll? a a 6 Mor s r$ 10. COUNCIL APPROVAL([F APPLICABLE) COMMITTEE APPROVAL DATE: 11-02-1M COUNCIL APPROVAL DATE: 4/17 p 1 O 11. CONTRACT SIGNATURE ROUTING 'SENT TO VENDOR/CONTRACTOR DATE SENT: 2�/yd2I$ a4o�A 1I DATE REC'D: 1/1/22/$1 I27/l ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE,L C NSES,EXH ITS o CREATE ELECTRONIC REMINDER/NOTIFICATION FOR I MONTH PRIOR TO EXPIRATION DATE (INCLUDE DEPT.SUPPORT STAFF IF NECESSARY AND FEEL FREE TO SET NOTIFICATION MORE THAN A MONTH IN ADVANCE IF COUNCIL APPROVAL IS NEEDED.) INITIAL/DATE SIGNED f IN,kNCE- EPARTMBNT --Et-L-**13ESI GNATORRYJMAYORI)R DIRECTOR) �f�.�irl �/ CITY CLERK ' /j�_JLILta ASSIGNED AG# AG# IIiglar;41 SIGNED COPY RETURNED DATE SENT: RET ..ORIGJIS A T COMMENTS: EXECUTE" l"ORIGINALS Mak A MSOVe/r"AI)b a70#/d Az S 3310 myvt afivrrAlto/At- 0y99. 4/2017 MEMORANDUM OF UNDERSTANDING BETWEEN NYH PROPERTIES, LLC AND THE CITY OF FEDERAL WAY THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made this (31" day of j 2018 by and between the City of Federal Way ("City"), a Washington municipal co oration, and NYH Properties, LLC, ("Owner"), a Washington limited liability company, collectively referred to as the "Parties." RECITALS WHEREAS, the City's 1996 Comprehensive Surface Water Management Plan proposed two capital improvement projects at the northwest corner of S 336th Street and Pacific Highway South, Projects SEA-03 and SEA-04, that included a presettling basin, re-grading the channel, replacing the inlet structure, and incorporating a low-flow diversion and infiltration trench; and WHEREAS, the City did not construct Projects SEA-03 and SEA-04 from the 1996 Comprehensive Surface Water Management Plan and incorporated a revised water quality facility project in the 2014 Surface Water Management Capital Improvement Plan (SWM CIP), Project#13, the S 336th Street Water Quality Facility at Highway 99; and WHEREAS, the City's 2014 SWM CIP scheduled the S 336th St Water Quality Facility at Highway 99 project to acquire property in 2019, design the project in 2020, and construct the project in 2021; and WHEREAS, the Owner of the parcel at 33333 Pacific Highway South desires to expand development on the property and grant the City an easement rather than sell the undeveloped portion to the City for the scope of the City's S 336th Street Water Quality Facility at Highway 99 project; and WHEREAS, the City revised the S 336th Street Water Quality Facility at Highway 99 project concept to meet the project goals and fit within the available footprint by revising the project scope to incorporate a water quality facility and installing drainage conveyance; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, it is mutually agreed by and between the Parties as follows: 1. Commitment of NYH Properties,LLC. (a) The owner will negotiate with the City a temporary construction easement along the northern and western property border to construct both Schedule 1 and Schedule 2, and negotiate with the City the conditions of a permanent easement large enough to maintain the final constructed footprint of Schedule 1 and Schedule 2. The permanent easement may limit the use of the land within the easement area to parking as the only approved use. (b) The Owner will pay the City for the cost of designing and constructing Schedule 1. The Owner acknowledges that any preliminary estimate is an opinion and that the actual - 1 - project cost may exceed or be less than the engineer's estimate. The Owner will deposit the anticipated design cost of$10,000, the engineer's preliminary construction estimate of $213,550, and a contingency amount of $22,335, a total of $245,905, with the City after the City Council approves the project and provides authorization to bid but before the City advertises the project for construction. In the event that the lowest responsive, responsible bid for Schedule 1 exceeds the engineer's estimate and contingency, the Owner reserves the right to discontinue with the project. The City may either proceed with the project and pay any costs above the Deposit Amount, or reject all bids and discontinue the project. If the project is discontinued, the City will refund the deposit to the Owner after deducting design costs incurred by the City. (c) In the event that proposed change orders associated with the construction of Schedule 1 cause the total project costs to exceed the Deposit Amount, the Owner has the right to review the proposed change order(s) and discuss options with the City, including discontinuing with the project and paying associated restoration and/or impact costs. If the Owner discontinues with the project during construction, the City may either proceed with the project and pay any cost above the Deposit Amount, or discontinue the project. If the project is discontinued during construction of Schedule 1, the City will refund the deposit to the Owner after deducting construction costs to date and any costs incurred by the City for site restoration. (d) In the event the project is completed and any funds remain from the deposit, remaining funds will be returned to the Owner following completion of Schedule 1. (e) The project schedule will be dependent on regulatory permitting requirements, current work load and will follow the City's standard project delivery process, including presenting to City Council for authorization to bid, authorization to award, and authorization to accept the final work. (f) The City makes no guarantees for future development of the parcel by current or future owner(s). The easement, Schedule 1 storm drain construction and Schedule 2 water quality facility are independent of development on the parcel and the cost of any future development on the parcel, including surface water facilities, shall be at the sole responsibility of the Owner. (g) The project will require a Joint Aquatic Resources Permit Application (JARPA) with Hydraulic Project Approval (HPA) from the Washington Department of Fish and Wildlife (WDFW) and may require a permit from the U.S. Army Corps of Engineers (USACE). WDFW staff have indicated that proposed SWM CIP projects downstream of the Owner's parcel are suitable mitigation for tightlining the stream across the parcel. However, the Owner understands that no official permits have been granted by local, state or federal agencies and that WDFW may change their opinion of suitable mitigation and not grant a permit for the project. The Owner agrees to hold the City harmless if the project is unable to advance due to the project's inability to meet permitting requirements. (h) In the event that the project is not granted required permits and construction does not occur, the Owner will not be responsible for any costs incurred by the City during the preliminary design process. 2. Commitment of the City. (a) The project will be split into two Schedules. Schedule 1 will be construction of the tightline storm drain conveyance along the northern and western property border. - 2 - Schedule 2 will be the City water quality component of the project which will be funded by the City under a revised SWM CIP schedule and constructed concurrently. (b) The City will design, permit, bid, administer funds received and manage construction of Schedule 1 of the project to construct the storm conveyance system. Schedule 1 will include installing the tightline storm drain conveyance per the City's Development Standards and the current edition of Washington State Department of Transportation Standard Specification for Road, Bridge, and Municipal Construction which includes backfill, compaction, and grading of the open trench areas but will not include any site grading outside of the storm drain conveyance limits. (c) The City will fund, design, permit, bid and manage construction of Schedule 2, the water quality facility. (d) The City will apply for all required permits for both Schedule 1 and Schedule 2, but makes no guarantees that outside agencies will grant permits. 3. Term. The term of this MOU shall commence on the date written above and shall continue until Schedule 1 and Schedule 2 construction is complete and the Owner has granted a permanent easement. The project schedule is based on the following milestones: (a) Obtaining permits from the City, WDFW, and USACE by January 1, 2019; (b) Completing the project design with Council approval and advertising the project by March 1, 2019; (c) Awarding the contract work by June 1, 2019; and (d) Constructing the improvements within an anticipated WDFW and/or USACE permit approved work window from July 15 to September 15, 2019. In the event the project schedule is delayed and the March 1, 2019 advertising milestone is not feasible, the owner reserves the right to discontinue the project. However, once the project has been advertised and deposits the project costs with the City, the owner agrees to continue with the project until completion, pending bid results as outlined in Section 1(b) of this MOU. 4. Indemnification. The Owner shall indemnify and hold harmless the City and its officers, boards, commissions, employees, agents, attorneys, and contractors from and against any and all liability, damages, and claims, (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be asserted by reason of any act or omission of the Owner, its employees, agents, or contractors, which may arise out of this MOU. The City shall indemnify and hold harmless the Owner and its officers, boards, commissions, employees, agents, attorneys, and contractors from and against any and all liability, damages, and claims, (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be asserted by reason of any act or omission of the City, its employees, agents, or contractors, which may arise out of this MOU. Nothing in this agreement shall be construed to create a cause of action against the Owner, or to create liability for damage to property caused by the actions of third parties. Any repairs to the storm drain and/or future water quality facility required after damage caused by third party will be borne by the City or the responsible third party. - 3 - 5. Governing Law. This MOU shall be governed by and construed in accordance with the laws of the State of Washington. 6. Entire Agreement. This MOU represents the entire understanding and agreement between the Parties. This MOU cannot be amended or modified except by another written document duly signed and executed by the City and the Owner. Signature page follows - 4 - IN WITNESS WHEREOF, the Owner and the City have executed this Memorandum of Understanding as of the day and year first written above by their duly authorized representatives. CITY OF FEDERAL WAY BY: ._irrzl7 "errell, Mayor 'ff3325 8th Ave S Federal Way, WA 98003 NYH PROPERTIES, LLC / BY: //. i7.r://.// -- . Wasim Azzam, Gri ernor NYH Properties, LLC . 963 S 293rd St Federal Way, WA 98003 STATE OF WASHINGTON ) ) ss. COUNTY OF L, , j ) On this day personally appeared before me Wasim Azzam to me known to be the Governor of NYH Properties, LLC that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this o` O day of Flare VI , 20A . V h_e_ .._ Notary Public �-�('-\--c� 1. S - r � State of Washington (typed/printed name of notary) Roberta F Bischoff My Public in and for the State of Washington. My commission expires - q\'--- I Commission '- Commission Expires 8.29.2018 S:\CIP\Projects\^9-West Hylebos\Proposed\S 336th Tightline and WQ\Draft MOU for easement and funding for the South 336th Street Water Quality Facility.docx - 5 -