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HomeMy WebLinkAbout2016-02-08-minutes-public-works-study-sessionKITTITAS COUNTY COMMUNITY DEVELOPMENT SERVICES 411 N. Ruby St., Suite 2, Ellensburg, WA 98926 CDS@CO.KITTITAS. WA.US Office (509) 962-7506 "Building Partnerships—Building Communities" Fax (509) 962-7682 PW STUDY SESSION MINUTES February 8, 2016 THOSE PRESENT: Gary Berndt, Paul Jewell, Obie O'Brien (BOCC) Doc Hansen, Angela San Filippo, Lindsey Ozbolt, Stephanie Mifflin (CDS) Mark Cook (PW) GUESTS PRESENT: None. ***Mark Cook asked to add Floodplain Permitting under Other Business on the agenda, Staf rrnr Update: Mark gave an update on staff (see attached report) and asked if the Board of County Commissioners would like to sit in on the interviews. Commissioner Jewell asked that Mark contact the City of Ellensburg and City of Cle Elum to see if they want to sit in. Commissioner Jewell also suggested contacting the Home Builders Association, Farm Bureau, and Department of Fish and Wildlife. Board Direction: None. Manastash Bridge Replacement Proiect Update: Mark gave an update on the project. See attached report. Board Direction: None. Patrick Avenue Improvements- City ofKittttas: Mark gave an update on the project. See attached report. There was a brief discussion on reimbursement issues. Board Direction: None. Federal Aviation Administration Disadvantaged Business Enterprise Policy: Mark presented a staff report to the Board. See attached. Mark stated he will have the document to the Board for action by noon on Thursday. Board Direction: None. Public Facility Funding Award(s): Mark presented a staff report to the Board. See attached. Mark stated Public Works is preparing for recipients of the awards. Commissioner Jewell asked for clarification on Section I (A) and (C). Mark clarified. Board Direction: Take to next agenda session for recommendation. Other Business: Floodplain Permitting: Mark stated he has talked to Jacob's Engineering and it is not a resource that will work for the County. Mark stated he has contacted a group out of Yakima to get on the "small contract roster." Commissioner Jewell asked for a timeline on the No. 6 Road Improvements. Mark stated Public Works is looking at April through mid-June. Board Direction: None. Mark Cook, Director X Obie O'Brien, Chairren COMMUNITY PLANNING • BUILDING INSPECTION • PLAN REVIEW • ADMINISTRATION • PERMIT SERVICES • CODE ENFORCEMENT KITTITAS COUNTY COMMISSIONERS REGULAR MEETING PUBLIC WORKS STUDY SESSION MONDAY, FEBRUARY 08, 2016 1:30 PM Commissioners' Auditorium 205 West 5th Room 109 - Ellensburg 1. Call to Order 2. Staffing Update 3. Manastash Bridge Replacement Project Update 4. Patrick Avenue Improvements - City of Kittitas 5. Federal Aviation Administration Disadvantaged Business Enterprise Policy 6. Public Facility Funding Award(s) 7. Other business 8. Adjourn Created on 2/4/2016 5:08:40 PM KITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS PUBLIC WORKS — BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT WORK SESSION DATE: February 8, 2016 TOPIC: Staffing Update ACTION REQUESTED: Informational Only LEAD STAFF: Mark R. Cook RECOMMENDATION: None. BACKGROUND: Public Works (PW) is currently advertising for numerous department vacancies. Vacant positions include: Receptionist (R), County Engineer (CE), County Surveyor (CS), Transportation Planning Manager (TPM), Water Resource Manager (WRM) and Engineering Technician III (ETIII). The positon of Construction Manager (CM) has recently become vacant (01-29-2016). DISCUSSION: PW has closed advertisement for R, having received 26 applications during the initial two week run. We anticipate making an offer of employment during the week of February 8, 2016. We have received three applications for ETIII. One application for CE has been received. Currently, we have two applications for CS. A single applicant has applied for WRM. No one has applied for TPM. PW proposes discussion of the vacant CM during an upcoming Human Resources work session. PW proposes notice to all applicants for interviews the week of February 15, 2016 for possible interviews the week of February 29, 2016. Providing there is sufficient qualified applicants for interviews, PW make elect to make offers of employment following the first interview round (week of February 29, 2016). The Board of County Commissioners is invited to notice PW of potential stakeholders for interview participants in the various vacant positions and/or submit questions for interview consideration. FISCAL IMPACTS: All vacant positions are budgeted in 2016. ATTACHMENTS: None. Page 1 of 1 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT KITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS PUBLIC WORKS — BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT WORK SESSION DATE: February 8, 2016 TOPIC: Manastash Bridge Update ACTION REQUESTED: None required LEAD STAFF: Mark R. Cook RECOMMENDATION None required. BACKGROUND: In late 2015, Public Works awarded the Manastash Bridge replacement to Belsaas and Smith construction. The bridge replaces a corroded culvert that experienced significant failure during the 2011 flood. DISCUSSION: Foundation support piles are installed. Pile caps are cast (02-03-2016). Bridge fabrication drawings are approved and WSDOT inspection services have been notified. The next major construction item is casting of the wingwalls then removal of the existing culvert and placement of the bridge superstructure and deck components. Completion of the project is anticipated late spring 2016 (May). FISCAL IMPACTS: The project is on budget. ATTACHMENTS: None. Page 1 of 1 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT KITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS PUBLIC WORKS — BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT WORK SESSION DATE: February 8, 2016 TOPIC: Patrick Avenue Improvements City of Kittitas ACTION REQUESTED: Informational LEAD STAFF: Mark R. Cook RECOMMENDATION: Information only. BACKGROUND: In 2014, the Board of County Commissioners (BOCC) authorized Public Works (PW) act as the Certified Agency (CA) for Phase 1 Patrick Avenue Improvements (City of Kittitas). As one of two certified agency in the county (City of Ellensburg is also a CA), PW administers its own construction contracts involving federal funds. In the absence of CA, the county would pay for contract administration either from a CA or to Washington State Department of Transportation (WSDOT). Recently, PW was noticed of construction funding award for the project from WSDOT. DISCUSSION: The City of Kittitas has contracted Gray & Osborne, Inc. (G&O) for plans, specification and engineering (PS&E) support and development. A review package arrived on 02/01/2016 for the Director's (PW) signature. I did not sign as requested. Immediately PW began gathering information on the project. We have no record of any funding reimbursements for any of the Engineering Phase of the project. An initial inquiry to WSDOT Local Programs did not provide knowledge on the process. None the less, as CA, we should have participated in the PE Phase including reimbursement requests through phase completion (or at least been noticed) prior to moving to the construction phase. The lack of project documentation may account for lack of notice of any record. The lack of any project record is troubling. We are currently collecting all PE phase funding requests as we are responsible for all project audits. We will begin compiling all federal aid required documentation consistent with CA requirements. We completed our review of PS&E during the evening of 02/03/2016. Review comments (attached as EXHIBIT A) have been sent to G&O with courtesy copy Page 1 of 3 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT to WSDOT Local Programs and the City of Kittitas. Once requested changes are addressed by G&O, we will meet discussing roles and responsibilities. Failure in meeting our project management mandate as CA, PW could lose our certification. A discussion with WSDOT Local Programs following our "roles and responsibilities" discussion with G&O is advisable. Any actionable item that comes from our WSDOT discussion should be a requirement burdened on the City's construction contract. FISCAL IMPACTS: PW has not budgeted any project support funding for 2016. Following the roles and responsibility meeting with G&O, we will be in positon forecasting probable cost and other impacts to our 2016 work program. ATTACHMENTS: EXHIBIT A: PS&E COMMENTS Page 2 of 3 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT February 03, 2016 Mr. Michael Meskimen Mr. Don M. Tulloch Gray & Osborne, Inc. 107 South Third Street Yakima, WA 98901 HITTZTAiS COUNTY DEPARTMENT OF PUBLIC WORKS Mark R. Cook, PE Director RE: PS&E City of Kittitas, Patrick Avenue Improvements Phase 1 Gentlemen: I have reviewed the PS&E provided for City of Kittitas, Patrick Avenue Improvements Phase 1. My review comments appear below for your consideration. 1. Cover sheet signature request: I will sign the cover once the design engineers have signed and dated their stamps. 2. Please sign and date the seals on the cover of the PS&E package with your response submittal. 3. Please revise the opening date once we have agreed on the final issue date for the revised PS&E package. 4. The project limits total 1,080 feet and not the 1,100 as shown on the "Call for Bids'. Please advise if the 1,100 is intended to be an approximate value. 5. Division 1, General Requirements Description of Work Please see comment no. 4 above. 6. Page 1-2, line no. 27: Please change "Contracting Agency' to "Certified Agency". Please ensure the there is a prior reference to Kittitas County Public Works as the Certified Agency. Please be advised that we will require a record of all project costs prior to project closeout. 7. Page 1-3. Notice of Award and Notice to Proceed: Please be advised that if is our understanding that the City of Kittitas desires Gray and Osborne, Inc. provide construction management services for this project. To date, Kittitas County does not appear to have been significantly involved in the project. I desire a meeting with G&O project management prior to final signatory on the PS&E package defining roles and expectations. We will review and manage all financial reporting as certified agency. Other aspects of project management can easily be deferred once we have a better understanding of the project management package that G&O is proposing for the City. 8. Page 1-6. 1-02.9 and Page 1-7 1-02.13: 1 note that there is no discussion about proposal whose delivery is inconsistent with delivery requirements. Is it your position that a proposal submitted without proper Project Name and Project Number on the envelope will be accepted? 9. Page 1-23, 1-05.11(2): Please be advised that Kittitas County will conduct the final inspection with the project engineer and any required additional attendees. 10. Page 1-25, 1-05.15: Please include Kittitas County on all notices. 11. Page 1-06.1(4) Fabrication Inspection Expense The section is deleted. Are there no project components requiring fabrication inspection? Please excuse our ignorance in 411 N. Ruby St, Suite #1 TEL (509) 962-7523 Ellensburg, WA 98926 FAX (509) 962.7663 Dept. of Public Works Page 2 asking but time in responding to this review request does not afford and exhaustive evaluation on the plans. 12. Page 1-26, Buy America: I presume this is the latest federal guidance. 13. Page 1-29, line no.28-31: 1 do not see a pay item for the required confined space program. Is this requirement intended to incidental to another pay item? 14. Page 1-35, line no.20: I note the listed nondiscrimination "non -SMSA counties" target as being 7.2 percent. The DBE COA goal (page 1-44) states a contract goal of 13%. It is my ignorance but does the higher goal negate the lesser goal? 15. Page 1-70, lines 16-17: 1 note the requirement for "Type A Progress Schedule" no later than the preconstruction conference. I do not see a pay item for the request. Is the request incidental to another pay item? Kittitas County requires copies of all project schedules. 16. Page 1-73, line no.13: Kittitas County requires copy on the notice of completion. 17. Page 5-2, 5-04.3(7)A2: During our 2015 construction season, we experienced significantly poor HMA from a local vendor. While our contract was non -statistical, we got caught having to use the composite price adjustment (Standard Specifications) because the asphalt content was so low. We have since written a special provision allowing us full rejection without having to follow the required process as defined in the Standard Specifications. In the absence of the special provision, we also had to add the price adjustment to the contract as a zero value change order as the means of adjusting the HMA payment. We can discuss further if you have interest. 18. Page 5-4. 5-04.3(8)A4: During our 2015 construction season, we experienced significant confusion over our lack of defining project sampling lot size and sublot size. Looking at engineer quantity, we suggest defining the lot as 570 tons and setting two sublots of 285 tons each (inbound lane and outbound lane). 19. Page 5-6, 5-04.5: Please see comment 17 above. 20. Page 8-2, 8-01.4: We have had difficulty obtaining the required weekly reports from various contractors. We do not pay item no.2 (G&O bid tab) on any pay request unless the reports are filed for the pay request period. 21. Page8-15. Record Drawings: Please be advised that Kittitas County requires a copy of all final record drawings. 22. Page 9-1. 9-02.1(4): Please discuss the rationale for deleting the additional requirement of 60 percent minimum RTFO Residual Elastic Recovery for PG 64-28 Asphalt Binder. Plan Comments 23. Please list the current mayor on the cover sheet. 24. All sheets: please sign and date all sheets. 25. Sheet 3: Please consider a note advising that the center of right of way is not the center of project stationing. 26. Sheet 6: Please add the slope down station of the grade break at 19+00. 27. Sheet 14: 1 do not see a note requiring shoring or slope profiling beyond a depth of four (4) feet. Please address where is covered elsewhere in the plan set of other documents. 411 N. Ruby St, Suite #1 TEL (509) 962-7523 Ellensburg, WA 98926 FAX (509) 962-7663 Dept. of Public Works Page 3 Preliminary Cost Estimate 28. 1 note that there is no provision for construction contingency. How do you anticipate handling change order costs? Please let me know when you are available for a discussion regarding roles and responsibilities prior to bid call. Sincere Mark R. Cook Director/Interim County Engineer C: Mr. Bryan Nash City of Kittitas County 207 N. Main Kittitas, WA 98934 Mr. Roger Arms WSDOT 2809 Rudkain Road Union Gap, WA 98903 411 N. Ruby St, Suite #1 TEL (509) 962-7523 Ellensburg, WA 98926 FAX (509) 962-7663 KITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS PUBLIC WORKS — BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT WORK SESSION DATE: February 8, 2016 TOPIC: Federal Aviation Administration Disadvantaged Business Enterprise Policy ACTION REQUESTED: Calendar the Policy for Adoption LEAD STAFF: Mark R. Cook RECOMMENDATION: Calendar the policy for adoption. BACKGROUND: The Federal Aviation Administration (FAA) is requesting the County adopt its disadvantaged business enterprise (DBE) policy, as a condition of funding the airport master plan revision. Public Works (PW) provided our adopted DBE policy with Federal Highway Administration (FHWA) to the FAA and rejected it for use. PW prepared a draft FAA policy presenting it to the Board of County Commissioners (BOCC) in late 2015. At the time of presentation, PW had not received comments from the Prosecuting Attorney's office (PA). Recently, we received comments from the PA on our draft FAA DBE policy. DISCUSSION: PA review identified one item for PW consideration and revision at Subpart F — Compliance and Enforcement. The preferred FAA language attempts to circumvent disclosure law using the term: "Notwithstanding any provision of Federal or state law". PA suggested language is: "To the extent allowed by any provision of federal or state law". PW has made the requested change to the proposed FAA DBE policy and the change is provided (EXHIBIT A) for BOCC review. Adoption of the policy is a requirement of FAA supporting the master plan update for Bowers Field. FISCAL IMPACTS: The planning grant has been accepted and contract work is underway. ATTACHMENTS: EXHIBIT A: REDLINE CHANGES TO DRAFT FAA DBE POLICY Page 1 of 1 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT August 19, 2015 SUBPART E — CERTIFICATION PROCEDURES Section 26.81 Unified Certification Programs OMWBE, provides certification services for DBE and Small Businesses. The OMWBE maintains a directory of certified firms and maintains procedures for certification. The County of Kittitas, WA relies on the OMWBE Office certification process. A link to the OMWBE Office is included in Attachment 9. SUBPART F — COMPLIANCE AND ENFORCEMENT Section 26.109 Information, Confidentiality, Cooperation and intimidation or retaliation We will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local law. Netw4hMar+dia9 any provas+en of -T To the extent allowed by any provision of federal or state law, we will not release any information that may reasonably be construed as confidential business information to any third party without the written consent of the firm that submitted the information. This includes applications for DBE certification and supporting information. However, we will transmit this information to DOT in any certification appeal proceeding under § 26.89 of this part or to any other state to which the individual's firm has applied for certification under § 26.85 of this part. All participants in the Department's DBE program (including, but not limited to, recipients, DBE firms and applicants for DBE certification, complainants and appellants, and contractors using DBE firms to meet contract goals) are required to cooperate fully and promptly with DOT and recipient compliance reviews, certification reviews, investigations, and other requests for information. Failure to do so shall be a ground for appropriate action against the party involved (e.g., with respect to recipients, a finding of noncompliance; with respect to DBE firms, denial of certification or removal of eligibility and/or suspension and debarment; with respect to a complainant or appellant, dismissal of the complaint or appeal; with respect to a contractor which uses DBE firms to meet goals, findings of non -responsibility for future contracts and/or suspension and debarment). Page 19 of 44 KITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS PUBLIC WORKS — BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT WORK SESSION DATE: February 08, 2016 TOPIC: 2015 Public Facility Funding Awards ACTION REQUESTED: Approve Use of Staff's Award Contract and Define Award Notice Signatory LEAD STAFF: Mark R. Cook RECOMMENDATION: Approve use of the contract prepared by Public Works supporting awards for 2015 Public Facility funding. BACKGROUND: During late 2015, staff developed a funding agreement for Board of County Commission (BOCC) following a request from the Board. Initial review of the agreement was followed by final revisions that came back to the BOCC for approval. Our records do not support any final action taken on the part of the BOCC authorizing use of the agreement. Previous notice of awards was provided by the Director of Public Works DISCUSSION: The attached agreement (EXHIBIT A) contains final redline comments from Public Works for BOCC consideration. Once final comments are resolved, the contract template is ready for distribution. Please note the insurance requirements contained in the contract, as these are expected to be met with various levels of acceptance by funding recipients. Public Works has previously engaged the BOCC on setting fund reserve limits for the Public Facility fund. Currently, two reserves are maintained: one for emergency use and the other for supporting overruns of obligated projects. COG meetings are staffed by CDS. It may be prudent for PW involvement annually during PF project review and funding discussions — eliminating any potential for expectation violations between PW and COG members. It may be prudent for the Chair to sign notice of award letters underscoring the Board's authority in the matter. Page 1 of 2 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT FISCAL IMPACTS: Setting specific reserves within the fund will influence the amount available for future awards. Clarity will eliminate confusion amongst COG members annually. EXHIBIT A: DRAFT FUNDING AGREEMENT Page 2 of 2 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT 2015 DISTRESSED COUNTY SALES AND USE TAX INFRASTURCTURE IMPROVEMENT PROGRAM AGREEMENT BETWEEN KITTITAS COUNTY AND This Contract, dated , 20165 is made and entered into by and between KITTITAS COUNTY ("County"), a subdivision of the State of Washington, and _ Formatted: centered —("Funding Recipient'). WHEREAS, the purpose of this Agreement is to provide for public facility construction and foster economic development opportunities within Kittitas County; NOW THEREFORE, in consideration of the terms and conditions contained herein, or attached and incorporated and made a part hereof, the County and the Funding Recipient mutually agree as follows: Section 1. Scope of Work. a. Funding Recipient shall provide the services and staff described in its Application for Funds submitted to the Council of Governments, attached hereto as Exhibit "A" and incorporated herein by this reference. b. Except as otherwise specifically provided in this Agreement, Funding Recipient shall furnish the following as required to perform the services, described in Paragraph (a) above, in accordance with this Agreement: Personnel, labor and supervision; technical, professional and other services. All such services, property and other items furnished or required to be furnished, together with all other obligations performed, or required to be performed, by Funding Recipient under this Agreement are collectively referred to herein as "Services." c. Funding Recipient shall identify all items that do not qualify for funding in Exhibit A and list those items as Exhibit "B" which is attached hereto and incorporated herein by this reference. Section 2. Commencement Date/Agreement Term. j Formatted: Font: Bold Section 3. Payment. a. As full compensation for satisfactory performance of the Funding Recipient Services, the County agrees to pay Funding Recipient the sum of (enter the amount here as Distressed County Sales and Use Tax Infrastructure Improvement Program Funding Agreement Page 1 Formatted: Font: 11 pt text) and as numeric value ($). b. Additional payment terms: The County will make payment to the Funding Recipient only on a reimbursement basis, as receipts for eligible items are submitted to the County, not to exceed the sum of (enter the amount here as text) and here as a numeric value ($). c. Final date to submit reimbursements requests is ninety (90) days after the ending of this agreement as defined by Section 2 of this agreement. d. Requests for reimbursements must be submitted to: Kittitas Public Works Finance Director Attn: Kathy Jurgens 411 North Ruby, — Suite 1 Ellensburg, WA 98926 e. Reporting requirements will be on prescribed forms from the Kittitas County Public Works Department. Section 4. Performance by Fundinq Reciuient a. Funding Recipient shall not (by contract, operation of law or otherwise) delegate or subcontract performance of any Services to any other person or entity without the prior written consent of the County. Any such delegation or subcontracting without the County's prior written consent shall be voidable at the County's option. b. Funding Recipient shall at all times be an independent Funding Recipient and not an agent or representative of the County with regard to performing the Services. Funding Recipient shall not represent that it is, or hold itself out as, an agent or representative of the County. In no event shall Funding Recipient be authorized to enter into any Agreement or undertaking for or on behalf of the County. It is understood that the Funding Recipient and the Funding Recipient's staff and employees are not employees of the County and are not, therefore, entitled to any benefits provided employees of the County. c. Funding Recipient shall comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, and other requirements, now or hereafter in effect, of any governmental authority (including, but not limited to, such requirements as may be imposed upon the County and applicable to Services). Funding Recipient shall furnish such documents as may be required to effect or evidence such compliance. All laws, ordinances, rules, and orders required to be incorporated into agreements of this character are incorporated into this Agreement by this reference. Funding Recipient agrees to obtain all required licenses and permits, and further agrees to keep them in full force and effect during the term of this Agreement. d. The County and the Funding Recipient agree that in fulfilling the terms and conditions of this Agreement neither shall discriminate on the basis of race, creed, color, national origin, age, sex, marital status, or the presence of a physical, sensory, or mental handicap. e. The Services shall at all times be subject to inspection by and approval of the Distressed County Sales and Use Tax infrastructure Improvement Program Funding Agreement Paget County, but the County's making (or failure or delay in making) such inspection or approval shall not relieve Funding Recipient of its responsibility to perform the Services in accord with this Agreement, notwithstanding the County's knowledge of defective or non -complying performance, or the substantiality or ease of discovering the same. Funding Recipient shall provide the County with sufficient, safe, and proper facilities and equipment for such inspection and free access to such facilities. This contract is subject to review by any Federal or State auditor. Funding Recipient shall promptly furnish the County or its designee, or such Federal or State auditor with such Information related to the Services as may be requested by the applicable governmental entity. Funding Recipient shall preserve and maintain all financial records and records relating to performance of Services under this Agreement for six (6) years after contract termination. For such duration after the County makes final payment of compensation due hereunder, Funding Recipient shall provide the County access to (and the County shall have the right to examine, audit and copy, with or without notice) all of Funding Recipient's books, documents, papers and records related to the Services or this Agreement. g. Funding Recipient understands and acknowledges that Funding Recipient is solely responsible for its own reporting and accounting of all state, federal, social security, and local taxes, of every nature, arising from Funding Recipient's performance of this Agreement. All compensation received by the Funding Recipient will be reported to the Internal Revenue Service at the end of the calendar year in accord with the applicable IRS regulations. Section 5. Release. Indemnity, and Hold Harmless. The County assumes no liability for the Funding Recipient's actions under this Agreement. Funding Recipient releases and shall defend, indemnify, and hold harmless the County, its officers and employees, agents, representatives, attorneys and/or volunteers, from and against all claims, costs, liabilities, damages, and expenses, (including, but not limited to, reasonable attorney fees) which arise or may arise or be alleged to arise out of or by reason of this Agreement including: • Any fault, negligence, strict liability or product liability of Funding Recipient in connection with the Services for this Agreement; • Any lien asserted upon any property of the County in connection with the Services for this Agreement; • Any failure of Funding Recipient, or of the Services, to comply with any applicable law, ordinance, rule, regulation, order, license, permit and other requirement, now or hereafter in effect, of any governmental authority; or • Any breach of or default under this Agreement by Funding Recipient. Section 6 Compliance with Public Records Law. a. In compliance with Washington's public records law, the County will retain copies of any documents associated with this Agreement, which may be required by law unless legally exempt from such retention, for any applicable legally required retention period. Distressed County Sales and Use Tax Infrastructure Improvement program Funding Agreement 3 b. In the event a public records request is made to the County for documents created in relation to this Agreement, should legal uncertainty arise regarding the disclosability of any documents under federal or state public records laws, the County shall provide notice to Funding Recipient pursuant to Washington's public records act, chapter 42.56 RCW, to allow Funding Recipient to seek a court injunction. c. The County specifically shall not be liable to Funding Recipient for the County's release under public records laws of any documents not protected by trademark, copyright or other law. Section 7. Industrial Insurance Waiver. With respect to performance of this Agreement and as to any claims against the County, its Additional Insureds, officers, agents and employees, the Funding Recipient expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to Funding Recipient's employees and agrees that the obligations to indemnify, defend and hold harmless provided in this Agreement extend to any claim brought by or on behalf of any employee of the Funding Recipient. This waiver is mutually negotiated by the parties to this Agreement Section 8. Insurance and Endorsements. a. The County requires that the Funding Recipient provide the County with a certificate, binder, or policy of liability insurance, acceptable to the County in an amount specified by the County. b. Such liability insurance shall be such as will protect Funding Recipient, its employees, agents and representatives, from all claims, losses, harm, costs, liabilities, damages and expenses arising out of personal injury (including death) or property damage that may result from performance of the Services or this Agreement, whether such performance is by Funding Recipient or any of its employees, agents or representatives. c. Funding Recipient agrees to provide proof of insurance prior to commencing performance of this Agreement. d. Copies of the County's written request and the insurance documents provided by Funding Recipient shall be attached to this Agreement and by this reference will be made part hereof. e. All liability insurance policies shall be endorsed to include the County as an Additional Insured and shall stipulate that the insurance afforded by the policies shall be primary insurance, and that any insurance, self-insured retention, deductibles, or risk retention trusts maintained or participated in by the Parties shall be excess and not contributory to any other insurance maintained by the County. Funding Recipient shall furnish the County a certificate of insurance with Endorsement as evidence that the required policies are in full force and effect. Distressed County Sales and Use Tax Infrastructure Improvement Program funding Agreement Page 4 Section 9. Termination The County may, by written notice thereof to Funding Recipient, terminate this Agreement as to all or any portion of the Services not yet performed, whether or not Funding Recipient is in breach or default. Upon receiving such notice of termination, Funding Recipient shall, except as otherwise directed by the County, immediately stop performing the Services to the extent specified in the notice. In the event the County terminates the Funding Recipient's Services, the Funding Recipient is obligated and hereby agrees to refund to the County all monies paid for Services not yet rendered by the Funding Recipient, if any, as of the date of the notice of termination. Section 10. Miscellaneous a. Funding Recipient shall not (by contract, operation of law or otherwise) assign this Agreement or any right or interest in this Agreement without the County's prior written consent. b. This Agreement embodies the entire Agreement between the County and Funding Recipient, and supersedes any and all prior oral or written communications, proposals, conditions, promises, representations, or understandings regarding the Services. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written amendment to the Agreement signed by both parties. c. Notice for any purpose under this Agreement, except service of process, shall be given by the Funding Recipient to the Kittitas County Commissioners and the Kittitas County Public Works Director, 411 North Ruby, Suite 1, Ellensburg, WA 98926. For all purposes under this Agreement, any notice by the County to the Funding Recipient shall be given to the Funding Recipient's address provided on the signature page. Notice may be given by delivery or by depositing in the U.S. Mail, first class, postage prepaid, certified mail, return receipt requested. d. The section and paragraph headings of this Agreement are for reference convenience only and are not intended to restrict, affect or be of any weight in interpreting or construing the provisions of such sections or paragraphs. e. This Agreement may be executed in one or more counterparts and by facsimile, each of which will be deemed an original, but all of which together will constitute one and the same instrument. f. Funding Recipient warrants to the County that the individual signing on Funding Recipient's behalf has the requisite power and authority to enter into and to perform Funding Recipient's obligations under this Agreement. Funding Recipient further warrants to the County that Funding Recipient has made no misrepresentation or misleading statement in connection with this Agreement, and is not in violation of any applicable law, ordinance, or regulation the consequence of which will or may materially affect Funding Recipient's ability to perform its obligations under this Agreement. g. If any term or condition of this Agreement or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect the other terms, conditions or applications which can be given effect without the invalid tens, condition or Distressed County Sales and Use Tax Infrastructure Improvement Program Funding agreement Page 5 application. To this end, the terms and conditions of this Agreement are declared severable. h. The exclusive venue for any action brought to enforce this Agreement or any of its terms shall be in Kittitas County, State of Washington. Distressed County Sales and Use Tax Infrastructure Improvement Program Funding Agreement Page 6 KITTITAS COUNTY BOARD OF COUNTY COMMISSIONERS FUNDING RECIPIENT Chair Vice—Chair Representative Address Commissioner Telephone ATTEST: Clerk of the Board APPROVED AS TO FORM: Deputy Prosecuting Attorney Distressed County Sales and Use Tax Infrastructure Improvement Program Funding Agreement Page 7 EXHIBIT & APPLICATION FOR FUNDS Distressed County Sales and Use Tax Infrastructure Improvement Program Funding Agreement Page 8 EXHIBIT B: NON-QUALIFIED EXPENSE FOR REIMBURSEMENT Please list all expenses that do not gualifv for reimbursement under the terms of this agreement Distressed County Sales and Use Tax Infrastructure Improvement Program Funding Agreement Page 9