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AG 96-174 REQUEST F'OR I,," , t- run /) CITY OF" F"EDERAL WAY LAW DEPARTMENT CONTRACT PREPARATION/DoCUMENT REVIEW/SIGNATURE ROUTING 1. ORIGINATING DEPT./OIV.: CAs; / ifL~ y 2. ORIGINATING STAFF PERSON: ~e~ ~XT:..!:/J..d 4. TYPE OF DOCUMENT REQUESTED (CHECK ONE!: 0 PROFESSIONAC SERVICES AGREEMENT 0 SECURITY DOCUMENT 0 MAINTENANCEfLABOR ASREEMENT """ A.'EE.E.T & P.."HA'H BONO' A..'.H.EHT O' "".D. 'H L"u O. BoHol 0 PUSCIC WORKS CONTRACT 0 CONTRACTOR SECECTION DOCUMENT 0 SMACC PUSCIC WORKS CONTRACT 1<.0" "FB. REP, "Fal ICE.. T.AH "',0001 0 CONTRACT AMENOM~NT 0 PURCHASE AGREEMENT 0 EASEMENT IHATE""., "uBB"n, EOU'B.EHTI 0 OTHER S. PR:::A~TE:T:::URC~AG~¿fr '1:tu AlhuJ ~/~ws b1tZ/D 3. DATE REQ. By: AG#: 6, NAME OF' CONTRACTOR: ADDRESB: PHONE: TYPE OF PERSON OR ENTITY (CHECK ONE!: 0 INDIVIOUAC 0 PARTNERSHIP 0 SOCE PROPRIETORSHIP STATE: 0 CORPORATION TAX IO#/SS#: SIGNATURE NAME' TITLE: 7. SCOPE OF' WORK: ATTACH EXHISIT A - A COMPCETE AND DETAICEO DESCRIPTION OF THE SERVICES OR SCOPE OF WORK, INCCUOING COMPCETION DATES FOR EACH PHASE OF WORK AND LOCATION OF WORK. s. TERM: COMMENCEMENT DATE: COMPLETION DATE: 9. TOTAL COMPENSATION: $ (INCCUDES EXPENSES AND SALES TAX, IF ANY) '" ."cULAno OH Hou"," LA.OR CHAR.E . ATTACH ..HEDU'" D. EHe,"".. ToT,.. AHD HoU'.T "T'" REIMSURSASLE EXPENSES: DYES ONo IF YES, MAXIMUM DOLLAR AMOUNT: $ Is SACES TAX OWED? 0 YES 0 No IF YES, $ PAID BY: 0 CONTRACTOR OCITY 1 D. SECECTION PROCESS USED (CHECK ONE): 0 REaUEST FOR BIOS 0 REaUEST FOR PROPOSACS 0 REaUEST FOR QUOTES 0 REaUEST FOR QUAUFICATIONS 0 ARCHITECT & ENG'NEER L,ST 0 SMACC WORKS ROSTER 11. CONTRACT REVIEW INITIAUDATE ApPROVED ~--- ':~~~:::T'::'::~'";.";,"T~~: :";,~':::,:~~;o, 0 PURCHASING 1 2. CONTRACT SIGNATURE ROUTING ~DATE ::P R:V~/- ~ LAW OEPARTHENT 7~ ~ ---~. ? I~ ¡~ ~::: :~:RAKGER 57/37 7 f ~ SIGNEO COpy SA~ TO OR'~:'1ATING DEPT. "t'LJ4-uJ DEff (//' '\ ASS'GNEO AG # '1(P-t7ï ft>lao/1l,C!Ø..- 0 PURCHASING' PCEASE CHARGE TO' DO..OH" bJ,n~~ ~ &-d I bl7l7~ - ~ ~fF ~~ WHOTE' DR'..... om. WOTH CDNTRAD' CANARY..".. '0 ow. D'NK' ,^W OOPT, DaCOENROO' OR'.'NAToNO moo ca'02 'RE" ..." ...~ ~~9.P. A.~ ~..MA:X.. 7.,.), ~~.~............. ................................... m~.M/I. ~.:- (f ) ................................ CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: SCHOOL DISTRICT IMPACT FEE INTERLOCAL AGREEMENT .........-............................................................................................................................................................................................. ............................................ CATEGORY: BUDGET IMPACT: _X_CONSENT _ORDINANCE _BUSINESS -HEARING _FYI _RESOLUTION _STAFF REPORT _PROCLAMATION _STUDY SESSION _OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ .................................................................................-..................................................................................................................... ............................................ ATIACHMENTS: INTERLOCAL AGREEMENT, STAFF MEMORANDUM TO LAND USE AND TRANSPORTATION COMMITTEE (LUTC) .........................................................-.......................................................................................................................-..................... .."""""""""""""""".", SUMMARYIBACKGROUND: 00 November 21, 1995 the City Council passed Ordinance 95-249 which put into place a system for the city to collect impact fees from new residential developments on behaH of the Federal Way Scbool District. This ordinance requires an interiocai agreement between the city and the District that sets forth the responsibilities of the city and District with respect to the collection and distribution of impact fees. The attached Interiocai Agreement was presented to the LUTC on April 15, 1996 and the Committee moved to forward the Interiocai to fo11 City Council with a recommendation of approval. ....................................................................................................................................................................................................... ............................................. CITY COUNCIL COMMIITEE RECOMMENDATION: Approval- Land Use & Transportation Committee, 4/15/96. .......................................--.........-...............................................................................-.................................................................... ................................. ...~.~.:..~~~ ~ ~..~~~~~.~ ~~::........._.~~~1.)!~~(~..... .......................................... ..... APPROVED FOR INCLUSION IN COUNCIL PAC~~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: _APPROVED _DENIED _TABLEDfflEFERREDINO ACTION COUNCIL BILL # ORDINANCE # RESOLUTION # NERCC.5124194 ~ 0 a) 0 <:1' 0 ~ 0 CoO a) After reco~ding, ret -AS q(¡;-! 7Lt to: City Attorney City of Federal Way 33530 1 st Way S. Federal Way, WA 98003 INTERLOCAL AGREEMENT FOR THE COLLECTION, DISTRIBUTION, AND EXPENDITURE OF SCHOOL IMPACT FEES TInS AGREEMENT is dated effective the 22nd day of December, 1995 and is entered into by and between the City of Federal Way (the "City") and the Federal Way School District No. 210 (the "District"). WHEREAS, the Washington State Legislature passed the Growth Management Act of 1990 and 1991, RCW 36.70A ~~. and RCW 82.02 ~~. (the "Act"), which authorizes the collection of impact fees on development activity to provide public school facilities to selVe new development; and WHEREAS, the Act requires that impact fees may only be collected for public facilities which are addressed by a capital facilities element of a comprehensive land use plan; and WHEREAS, the District has prepared a capital facilities plan in compliance with the Act which has been adopted by the City of Federal Way as a subelement of the City of Federal Way Comprehensive Plan by Ordinance No. 95-248; and WHEREAS, the City of Federal Way has adopted Ordinance No. 95-249 for the assessment and collection of school impact fees upon certain new residential developments on behalf of the District; and WHEREAS, the City of Federal Way and the District enter into this Agreement pursuant to and in accordance with the State Interlocal Cooperation Act, Chapter 39.34 RCW, for the purposes of administrating and distributing the authorized impact fees. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN, IT IS AGREED THAT: I. GENERAL AGREEMENT: The City of Federal Way (the "City") and the Federal Way School District No. 210 (the "District") agree to comply with the terms of this Agreement which govern the collection, distribution, and expenditure of school impact fees. II. RESPONSffiILITIES OF THE DISTRICT: The District, by and through its employees, agents, and representatives, agrees to: A. Annually submit to the City a six-year capital facilities plan or an update of a previously adopted plan, which meets the requirements of the Act and Ordinance No. 95-249 on or before April 1st of each year. B. Authorize King County, as Treasurer for the District, to establish a School Impact Fee Account into which school impact fees may be deposited. ORt GINAL I iiI 8 ~ i ~ i II ã '" 8 ~ 0 ~ 0 ~ 0 (.þ 0 (.þ ~ C. Expend impact fee revenues provided to the District under this Agreement, and all interest proceeds on such revenues, for expenditures authorized by Sec. 14-216 of the Federal Way City Code ("FWCC"). D. Prepare an annual report in accordance with the requirements ofRCW 82.02.070 and FWCC Sec. 14-218 showing the system improvements that were financed in whole or in part by impact fees and the amount of funds expended. The annual report shall be sent to the City on or before April 1st of each year for the preceding calendar year. E. Refund impact fees and interest earned on impact fees when a refund is required under applicable law; including but not limited to (1) when the proposed development activity does not proceed and no impact to the District has resulted; (2) when the impact fees or interest earned on impact fees are not expended or encumbered within the time limits established by law; or (3) when the school impact fee program is terminated. F. Maintain all accounts and records necessary to ensure proper accounting for all impact fee funds and compliance with this Agreement, the Act, and Ordinance No. 95-249; including, without limitation, accounting for fees received, interest earned on fees, date of receipt of funds, and the capital or system improvements that were financed by the impact fees. G. Indemnification and Hold Harmless. 1. The District shall, at its own expense, protect, defend, indemnify, and hold harmless the City, its officers, employees and agents, from any and all costs, claims, judgments or awards of damages, arising out of or in any way resulting from the acts or omissions of the District, its officers, employees or agents, relating to the District's implementation of the school impact fee program, performance of the duties set forth in paragraph II of this Agreement, or compliance with the terms of Ordinance No. 95-249, all as may be amended from time to time. This indemnification by the District of the City shall include, but not be limited to: (a) The District's responsibility to refund any fees with interest, which are determined by a court of competent jurisdiction to have been improperly paid, regardless of whether the City erroneously required the fee amount; (b) The District's agreement not to impose any liability on the City for the City's failure to collect the proper fee amount or any fee from a developer conducting any development activity, but the City shall make reasonable attempts to collect such fee; (c) All acts or omissions of the District, its officers, employees or agents relating to implementation of the school impact fee program. -2- 2. The District shall, at its own expense, protect, defend, indemnify, and hold harmless the City, its officers, employees, and agents, from any and all costs, claims, judgments, or awards of damages, resulting from a challenge to the legality of Ordinance No, 95-249; provided however, that if the District offers to defend, the District shall not be liable for any of the City's attomey's fees or litigation costs incurred after such offer to defend is made; provided further, that if the District defends the City, the District shall be authorized to settle any such challenge. If the City declines to agree to the settlement, the City may continue the challenge, but shall be responsible for its own City attorney's fees and litigation costs. C& 0 ~ 0 ~ 0 c.r; 0 e,:¡ ~ 3. The District further agrees that the District shall, at its own cost and expense, protect, defend, indemnify, and hold harmless the City, its officers, employees, and agents from any and all costs, claims, judgments, or awards or damages arising out of or in any way resulting from the District's failure to refund impact fees, or interest on such impact fees, including but not limited to a determination that impact fees from development activity that was not completed are not refundable because the funds were expended or encumbered by the District whether or not the District's determination was made in good faith; provided however, that if the District offers to defend, the District shall not be liable for any of the City's attorney's fees or litigation costs incurred after such offer to defend is made. 4. The District's duties to the City under this Section shall not be diminished or extinguished by the prior termination of this Agreement pursuant to Section VI. ill. RESPONsmn..ITIES OF THE CITY: The City, by and through its employees, agents, and representatives, agrees to: A. Timely review the District's updated Capital Facilities Plan and the District's revised impact fee schedule. B. Deposit promptly all impact fees collected on behalf of the District in the School Impact Fee Account in the Office of the King County Treasurer, and advise the District concerning the dates that the impact fees were received and the names of the applicants.. C. After receipt of the District's annual report required by Section ILD. above, prepare an annual report based solely upon the District's annual report, as required by RCW 82.02.070(1). D. Determine whether applicants are excluded from the application of the impact fee pursuant to FWCC Sec. 14-214, as may be amended from time to time. E. Indemnification. Except as provided in Section ILG. I, 2, 3, and 4, the City shall, at its own cost and expense, protect, defend, indemnify and hold harmless the District, its officers, employees, or agents, from any and all costs, claims, judgments or awards of damages, arising out of the acts or omissions of the City, its officers, employees or agents relating to the City's implementation of the school impact fee program and performance of the duties set forth in -3- C.lJ 0 (J'J 0 ~ 0 e,:¡ 0 e,:¡ (J'J Paragraph III of this Agreement; provided however, that if the City offers to defend, the City shall not be liable for any of the District's attorney's fees or litigation costs incurred after such offer to defend is made, and provided further that the District shall promptly refund any fees as required by a final court order including payment of any pre- or post-judgment interest. The City shall not be liable for judgments or awards of damages unless there is a finding that the City's conduct was at least negligent; provided further, that if the City defends the District, the City shall be authorized to settle any such challenge. If the District declines to agree to the settlement, the District may continue the challenge, but shall be responsible for its own District attorney's fees and litigation costs. The City's duties to the District under this Section shall not be diminished or extinguished by prior termination of this Agreement pursuant to Section VI. IV. GENERAL TERMS: A. This Agreement shall become effective when executed by both parties and filed with the Secretary of State and with King County, and shall remain in effect until terminated pursuant to Section VI of this Agreement. B. It is recognized that amendments to this Agreement may become necessary, and such amendment shall become effective only when the parties have executed a written addendum to this Agreement. C. The District acknowledges that the City is vested with the authority to impose and collect school impact fees. The parties agree that the City shall in no event be liable to the District for the payment of money in connection with the school impact fee program, with the exception of remitting to the District the impact fees collected for the District. V. AUDIT: A. The District's records and documents with respect to all matters covered by this Agreement shall be subject to inspection, review, or audit by the City or appropriate state agency. B. The District agrees to cooperate with any monitoring or evaluation activities conducted by the City that pertain to the subject of this Agreement. The District agrees to allow the City, or appropriate state agencies and/or any of their employees, agents, or representatives, to have full access to and the right to examine during normal business hours, all of the District's records with respect to all matters covered by this Agreement. The City and/or any of its employees, agents, or representatives shall be permitted to audit, examine, and make excerpts or transcripts from such records and to make audits of all invoices, materials, payrolls, and record of matters covered by this Agreement. The City will give fifteen (15) days advance notice to the District of fiscal audits to be conducted. C. The results and records of said audit shall be maintained and disclosed in accordance with Chapter 42.17 RCW. -4- C& 0 '" 0 ~ 0 (,() 0 e,:¡ g: VI. TERMINATION: A. The obligation to collect impact fees under this Agreement may be terminated without cause by the City, in whole or in part, at any time. All other obligations under this Agreement shall remain in effect until both of the following conditions have been satisfied: (1) the City or the District provides written notice that this Agreement is being terminated; and (2) neither the District, nor the City on behalf of the District, retain unexpended or unencumbered impact fees. The obligations under Section II.G. and Section IIIE of this Agreement shall be continuing and shall not be diminished or extinguished by the termination of this Agreement. B. The District shall be responsible to ensure that upon termination of this Agreement, any remaining unexpended or unencumbered impact fees are refunded pursuant to RCW 82.02.080. C. Nothing herein shall limit, waive, or extinguish any right or remedy provided by this Agreement or by law that either party may have in the event that the obligations, terms, and conditions set forth in this Agreement are breached by the other party, VII. SEVERABILITY: In the event any term or condition of this Agreement or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other terms, conditions, or applications of this Agreement which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this Agreement are declared severable. VIII. RIGHTS TO OTHER PARTIES: It is understood and agreed that this Agreement is solely for the benefit of the parties hereto and conveys no right to any other party. Ix. GOVERNING LAW AND FILING: This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of Washington. This Agreement shall be filed with the Secretary of the Board of Directors of District No. 210, the City Clerk of the City of Federal Way, the King County Records and Elections Division, the Secretary of State, and the Washington Department of Community Development. X. ADMINISTRATION: A. The City's representative shall be: Marie Mosley Deputy Management Services Director City of Federal Way 33530 1st Way S. Federal Way, Washington 98003 Telephone: (206) 661-4063 -5- Jody Putman Federal Way School District No. 210 31405 18th Avenue South Federal Way, Washington 98003 Telephone: (206) 941-0100 ENTIRE AGREEMENTIWAIVER OF DEFAULT: B. The District's representative shall be: XI. The parties agree that this Agreement is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. Both parties recognize that time is of the essence in the performance of the provisions of this Agreement. Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver or breach of any provision of the Agreement shall not be deemed to be waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of the Agreement unless stated to be such through written approval by the City, which shall be attached to the original Agreement. Ct) 0 1;1') 0 <:1' 0 Ct) 0 Ct) 1;1') CITY OF FEDERAL WAY, WASHINGTON ~? /~- Kenneth E. Nyber!k.c ,', ""~ City Manager APPROVED AS TO FORM ~~~ ~ .Llne City Attorney ;?t- )Y¡d /. "5' Tili;, I y -a:.;z --; 1996 ( Œ¿ ~£4~ N. hristine Green, CMC Federal Way City Clerk K"NTERLCL"MPACTFE,SD 3m/96 -6- FEDERAL WAY SCHOOL DISTRICT NO. 210 p~ Superintendent