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HomeMy WebLinkAbout034-26 - WSDOT - ContractDocusign Envelope ID: B7ECBE0F-0DB1-40F4-A00B-7F9D6BEE810E MEMORANDUM OF UNDERSTANDING BETWEEN Washington State Department of Transportation AND City of Port Orchard This Memorandum of Understanding is between the Washington State Department of Transportation (WSDOT) and City of Port Orchard (Utility) individually the "Party" and collectively the "Parties." RECITALS 1. The Parties desire to jointly establish a mutual and cooperative system to carry out their respective obligations of this Agreement for the construction of the WSDOT Fish Passage Program (Program). 2. The Program works to comply with a U.S. District Court injunction that requires WSDOT to remove state owned culverts that are barriers to salmon and steelhead spawning and migration. 3. WSDOT will fund the Program with state or federal funds approved by the Washington State Legislature. WSDOT will procure services needed to deliver the Program in conformance with applicable laws, here in WSDOT Contractor. The Utility will fund the installation and relocation of any Utility -owned utilities that are located within WSDOT Right of Way pursuant to applicable franchise, permit or undocumented permission which are owned by the Utility. 4. The Program encompasses multiple culverts that are barriers to fish passage in Kitsap County that are located within the Utility's service area, Exhibit A. WSDOT may deliver the Project using traditional or alternative contract methods. WSDOT continually reviews culverts that are barriers to fish. Additional culverts may be added to Exhibit A. 5. The Utility owns facilities that may need to be removed and/or relocated and/or constructed to facilitate construction of a Project, herein the "Work". 6. The Work shall be defined as all materials, equipment, labor, contract administration and any other efforts required to perform the relocation, construction, and/or removal of the Utility's facilities. 7. The Work may include betterments, installation of new facilities, removal of existing facilities from WSDOT right of way; and/or protection in place of facilities. NOW THEREFORE, pursuant to Chapter 39.34 of the Revised Code of Washington, the above recitals that are incorporated herein as if fully set forth below, and in consideration of the terms, conditions, covenants, and performances contained herein, It Is Mutually Agreed as Follows: 1. PURPOSE The purpose of this Agreement is to establish a cooperative system where the Parties jointly determine how to best accomplish the Work for each Project, for the duration of the Program. 2. GENERAL 1. This Agreement does not establish any separate legal or administration entity. 11188293.1 -366922- 0001 Docusign Envelope ID: B7ECBEOF-ODB1 -40F4-AOOB-7F9D6BEE81 CE 2. A separate Utility Construction Agreement may be executed by the Utility and the WSDOT Contractor to establish the scope of work and payment provisions for Work to Utility facilities for each Project. 3. RESPONSIBILITIES This Agreement will be administered jointly by WSDOT and the Utility pursuant to RCW 39.34.030. 2. WSDOT itself may conduct the procurement process for goods or services related to the Work as part of the Project. Alternatively, upon notice by the Utility to WSDOT, the Utility may conduct the procurement process for goods or services related to all, or portions of the Work. 3. For any Project where the Utility and WSDOT agree that the Utility will not conduct the procurement process for goods or services related to all, or portions of the Work, the Utility shall coordinate and develop an agreement directly with the WSDOT contractor. 4. The Parties will work in a timely and cooperative manner to determine the contracting strategy for the Work for each Project. 5. PERIOD OF PERFORMANCE Subject to its other provisions, the period of performance of this Agreement shall commence on January 20, 2026, and be completed on December 31, 2032, unless terminated sooner as provided in this Agreement, or extended through a properly executed amendment. 6. COMPENSATION This is a non -financial Agreement. In no event shall either party seek compensation for work performed under this Agreement. 7. AMENDMENT This Agreement may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 8. ASSIGNMENT The work to be provided under this Agreement, and any claim arising under this Agreement, is not assignable or delegable by either party in whole or in part, without the express prior written consent of the other party, which consent shall not be unreasonably withheld. 9. ASSURANCES The parties agree that all activity pursuant to this Agreement shall be in accordance with all applicable federal, state and local laws, rules, and regulations as they currently exist or as amended. 10. CONTRACT MANAGEMENT The contract manager for each of the parties shall be responsible for and shall be the contact person for all communications regarding the performance of this Agreement. 11188293.1 - 366922 - 0001 Docusign Envelope ID: B7ECBE0F-0DB1-40F4-A00B-7F9D6BEE810E The Contract Manager for WSDOT is: The Contract Manager for City of Port Orchard is: Devin Maher Olympic Region Utility Manager Denis Ryan dryan@portorchardwa.gov Office: 360-570-6745 Cell: 509-863-3314 Devin. maher@wsdot.wa.gov 11. DISPUTES The Parties shall work collaboratively to resolve disputes and issues arising out of, or related to, this Agreement. Disagreements shall be resolved promptly and at the lowest level of hierarchy. To this end, following the dispute resolution process shown below shall be a prerequisite to the filing of litigation concerning any dispute between the Parties: a. The representative, as shown herein designated in this Agreement shall use their best efforts to resolve disputes and issues arising out of or related to this Agreement. The representatives shall communicate regularly to discuss the status of the tasks to be performed hereunder and to resolve any disputes or issues related to the successful performance of this Agreement. The representatives shall cooperate in providing staff support to facilitate the performance of this Agreement and the resolution of any disputes or issues arising during the term of this Agreement. b. A Party's representative shall notify the other Party in writing of any dispute or issue that the representative believes may require formal resolution according to this Section. The representatives shall meet within five (5) working days of receiving the written notice and attempt to resolve the dispute. c. In the event the representatives cannot resolve the dispute or issue, the Utility's General Manager, and WSDOT's Region Administrator, or their respective designees, shall meet and engage in good faith negotiations to resolve the dispute. d. In the event the Utility's General Manager and WSDOT's Region Administrator, or their respective designees, cannot resolve the dispute or issue, the Utility and WSDOT shall each appoint a member to a Dispute Board. These two members shall then select a third member professional mediator not affiliated with either Party. The three -member board shall conduct a dispute resolution hearing that shall be informal and unrecorded. All expenses for the third member of the Dispute Board shall be shared equally by both Parties; however, each Party shall be responsible for its own costs and fees. 11188293.1 -366922- 0001 Docusign Envelope ID: B7ECBE0F-0DB1-40F4-A00B-7F9D6BEE810E 12. GOVERNING LAW AND VENUE This Agreement shall be construed and interpreted in accordance with the laws of the state of Washington and the venue of any action brought under this Agreement shall be in Superior Court for Thurston County. 13. INDEPENDENT CAPACITY The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that party and shall not be considered for any purpose to be employees or agents of the other party. 14. MAINTENANCE OF RECORDS a. The parties to this Agreement shall each maintain books, records, documents and other evidence that sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of the service(s) described herein. These records shall be subject to inspection, review or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. All books, records, documents, and other material relevant to this Agreement will be retained for six years after expiration of agreement. The Office of the State Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period. b. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. c. Records and other documents, in any medium, furnished by one party to this Agreement to the other party, will remain the property of the furnishing party, unless otherwise agreed. The receiving party will not disclose or make available any confidential information to any third parties without first giving notice to the furnishing party and giving it a reasonable opportunity to respond. Each party will utilize reasonable security procedures and protections to assure that records and documents provided by the other party are not erroneously disclosed to third parties. However, the parties acknowledge that State Agencies are subject to chapter 42.56 RCW, the Public Records Act. 15. ORDER OF PRECEDENCE In the event of an inconsistency in the terms of this Agreement, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: a. Applicable state and federal statutes, and local laws, rules and regulations; b. Exhibits and Appendices — list separately; and c. Any other provisions of the agreement, including materials incorporated by reference. 16. RESPONSIBILITIES OF THE PARTIES Each party to this Agreement hereby assumes responsibility for claims and/or damages to persons and/or property resulting from any act or omissions on the part of itself, its employees, its officers, and its agents. Neither party assumes any responsibility to the other party for the consequences of any claim, act, or omission of any person, agency, firm, or corporation not a part to this Agreement. 17. SEVERABILITY If any term or condition of this Agreement is held invalid, such invalidity shall not affect the validity of the other terms or conditions of this Agreement. 18. SITE SECURITY and SAFETY While on WSDOT premises, the Utility, its agents, employees, or subcontractors shall comply with 11188293.1 -366922- 0001 Docusign Envelope ID: B7ECBE0F-0DB1-40F4-A00B-7F9D6BEE810E WSDOT safety and security policies and regulations. Including requirements for the prevention of transmission of communicable diseases such as Covid. 19. TERMINATION FOR CAUSE If for any cause either party does not fulfill in a timely and proper manner its obligations under this Agreement, or if either party violates any of these terms and conditions, the aggrieved party will give the other party written notice of such failure or violation. The responsible party will be given the opportunity to correct the violation or failure within 15 working days. If the failure or violation is not corrected, this Agreement may be terminated immediately by written notice of the aggrieved party to the other. 20. TERMINATION FOR CONVENIENCE For any reason, either party may terminate this Agreement upon 30 calendar days' prior written notification to the other party. 21. MUTUAL INDEMNIFICATION a. To the extent permitted by law, each Party to this Agreement will protect, defend, indemnify, and save harmless the other Party, its officers, officials, employees, and agents, while acting within the scope of their employment as such, from any and all costs, claims, judgments, and/or awards of damages, including attorney's fees (both to persons and property), arising out of, or in any way resulting from, each Party's negligent acts or omissions with respect to the provisions of this Agreement. Neither Party will be required to indemnify, defend, or save harmless the other Party if the claim, suit, or action for injuries, death, or damages (both to persons and property) is caused by the sole negligence of the other Party. Where such claims, suits, or actions result from the concurrent negligence of the Parties, their agents, officials or employees, and/or involve those actions covered by RCW 4.24.115, the indemnity provisions provided herein will be valid and enforceable only to the extent of the negligence of the indemnifying Party, its agents, officials or employees. b. The Parties agree that their obligations under this section extend to any claim, demand, and/or cause of action brought by, or on behalf of, any of their officers, officials, employees or agents. For this purpose only, the Parties, by mutual negotiation, hereby waive, with respect to each other only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 RCW. c. This indemnification and waiver will survive the termination of this Agreement. 22. WAIVER A failure by either party to exercise its rights under this Agreement shall not preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement. Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Agreement unless stated to be such in writing and signed by personnel authorized to bind each of the parties. 11188293.1 -366922- 0001 Docusign Envelope ID: B7ECBE0F-0DB1-40F4-A00B-7F9D6BEE810E 23. ALL WRITINGS CONTAINED HEREIN This Agreement contains all the terms and conditions agreed upon by the parties. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. 24. COUNTERPARTS AND ELECTRONIC SIGNATURE This Agreement may be executed in counterparts or in duplicate originals. Each counterpart or each duplicate shall be deemed an original copy of this Agreement signed by each party, for all purposes. Electronic signatures or signatures transmitted via e-mail in a "PDF" may be used in place of original signatures on this Agreement. Each party intends to be bound by its electronic or "PDF" signature on this Agreement and is aware that the other parties are relying on its electronic or "PDF" signature. IN WITNESS WHEREOF, the parties have executed this Agreement. Washington State P-11 fin Entity Signed by: g Department of Transportation By. By: 3B96492E3F5847D.. Printed: Rob Putaansuu Pri d: JoAnn Schueler Title: Mayor Title: Asst. Region Administrator - Olympic Region Date: 2/25/2026 Date: 3/18/2026 11188293.1 -366922- 0001 Docusign Envelope ID: B7ECBE0F-0DB1-40F4-A00B-7F9D6BEE810E 11188293.1-366922-0001