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Port of Allyn sidewalk Improvements Maintenance Agreement - Interlocal Agreement �I y cS��z1 PORT OF ALLYN Serving Mason County Since 1921 portofallyn.com East Lakeland Drive Sidewalk Improvements Maintenance Agreement This agreement is entered into between Mason County, hereafter referred to as the "COUNTY," and the Port of Allyn, 18560 East COUNTY Highway 3, Allyn, WA 98524,hereafter referred to as the "PORT, "together referred to as the "Parties" and individually as the "Party." WHEREAS, the PORT will construct a project on Lakeland Drive in Allyn, WA, titled "East Lakeland Drive Sidewalk Improvements" hereinafter the "Project," and WHEREAS, The PORT'S project has been approved by the COUNTY, and includes sidewalk construction and lighting within the county-owned managed access right-of-way within the community of Allyn, hereafter"Right-of-Way," and WHEREAS, the PORT has agreed to maintain specific elements of its Project, and WHEREAS, the Parties desire to define the PORT'S maintenance and/or repair obligations of Project elements within the Right-of-Way. NOW, THEREFORE pursuant to RCW 47.08.070 and Chapter 39.34 RCW, the above recitals that are incorporated herein as if fully set forth below, and in consideration of the terms, conditions, covenants, and performance contained herein, and the attached Exhibit A, which are incorporated and made a part of hereof, IT IS MUTUALLY AGREED AS FOLLOWS: PORT ROADSIDE MAINTENANCE OBLIGATIONS 1.1 Sidewalk Maintenance: The PORT agrees, at its sole cost and expense, to maintain the sidewalk within the Right-of- Way constructed by the PORT'S Project, as shown in Exhibit A, by sweeping and/or cleaning, and performing the removal of snow and ice. 1.2 Landscape Maintenance: The PORT agrees, at it's sole cost and expense, to maintain planting beds and landscaping vegetation, including ground cover, that may be installed adjacent to the sidewalk area constructed by phone: 360-275-2430 1 info@portofallyn.com 1 18560 E. State Route 3 1 PO Box 1 • Allyn, WA 98524 the PORT's Project, as shown in Exhibit A. Maintenance of landscaping shall be such that vegetation will not obstruct vehicle or pedestrian sight distances, block the readability of highway signs, or allow encroachment of vegetation onto sidewalks, or traveled way. Any hazardous or dangerous tree, identified by either the COUNTY or the PORT, located within the Right of Way within the Project limits, that endangers the safety of the traveling public or is a hazard to vehicles or pedestrians shall be immediately removed by the PORT at its sole cost and expense. The PORT agrees, at its sole cost and expense that it will be responsible for the replacement of plants that may be used within the landscape planting beds. The PORT, at its sole cost and expense, shall be responsible for the cleanup of any material tracked onto the COUNTY's highway should any planting bed and landscape maintenance activities occur, and any other maintenance or repair activities, and shall comply with the provisions of RCW 46.61.655, Dropping load, other materials - Covering. 1.3 Weed Control. The PORT shall, at its sole cost and expense, keep the landscaping and any planting beds free of all noxious weeds (noxious weeds as listed by Mason County). The PORT may remove these weeds manually and/or through chemical control as follows: Any use of herbicides by the PORT for vegetation maintenance shall be applied by a person who is licensed to apply herbicide for the control of vegetation. . Any herbicide the PORT wishes to use shall be pre-approved in writing by the COUNTY prior to usage. The PORT shall provide the COUNTY with annual records of the PORT's herbicide application(s). The PORT may apply pesticides (insecticides, fungicides) in accordance with the label recommendations, and if used, the PORT shall comply with all federal, COUNTY and local laws, rules and orders, now in effect or as amended, including U.S. Washington COUNTY Department of Ecology, Washington COUNTY Department of Agriculture orders and local sensitive area ordinances. All pesticide applications shall be performed by an applicator licensed by the COUNTY of Washington in the category for the pesticides utilized. The licensed applicator shall complete and sign a Commercial Pesticide Application Record for each daily application of pesticides. A copy of the Pesticide Application Record shall be kept on file for a period of seven (7) years at the PORT and shall be subject to the provisions of RCW 17.21.100 which outline "Record keeping by licenses and agricultural users." These Records shall be made available within five (5) business days upon request by the COUNTY. The provisions for records in this Section shall survive the termination of this Agreement. 1.4 Illumination Maintenance: The PORT agrees, at its sole cost and expense, to oversee the maintenance and repair of the illumination on the poles constructed owned by PUD 3 within the Right of Way of the PORT'S project as shown in Exhibit A. The PORT agrees to be responsible for payment of the electrical bill for the above illumination. The PORT shall arrange for the electric billings to be placed in the PORT's name. 1.5 Graffiti Removal: The PORT agrees, at its sole cost and expense, to remove all graffiti from sidewalks and sidewalk footing constructed by the PORT's Project, as shown in Exhibit A. The PORT agrees to remove graffiti on a monthly basis or immediately if offensive language or graphics are present. 1.6 Litter Control: The PORT agrees, at its sole cost and expense, to pick up litter throughout the planting beds and landscaping vegetation areas of the PORT's Project no less than twice per calendar year. 1.7 Port Damage to Right of Way.- The PORT shall not damage the highway or Right of Way in any way as it performs repairs or maintenance and agrees to be directly liable to the COUNTY for all Right of Way or highway repair and/or replacement costs if such damages occur. 1.8 Third Party Damage: The PORT agrees that it shall be responsible to repair all third party damage to all Project facilities, including but not limited to vegetation, illumination, and fencing, constructed by the PORT within the Right of Way. 1.9 Traffic Control: The PORT shall not perform any work authorized under this Agreement in such a manner as to conflict with, impede or disrupt in any way COUNTY highway construction, operation or maintenance, or interfere with or endanger the safety of the traveling public or pedestrians. The PORT agrees that all traffic control for any maintenance or repair work within the Right of Way shall be in compliance with the Manual or Uniform Traffic Control Devices (MUTCD) and/or the COUNTY's Work Zone Traffic Control Guidance M54-44. 2. EMERGENCY MAINTENANCE 2.1 In the event a hazardous condition arises associated with the repair or maintenance responsibilities described in Section 1 of the Agreement that the COUNTY deems may endanger the COUNTY highway, pedestrians, or the traveling public, the COUNTY will immediately notify the PORT of the hazard and the PORT agrees to immediately correct said hazard at the expense of the PORT. 2.2 The COUNTY reserves the right to perform emergency maintenance of an identified hazard under Section 2.1, where: (1) the PORT notifies the COUNTY that it does not have the ability to immediately correct the identified hazard and requests the COUNTY within twenty four (24) working hours of notification by the COUNTY of when the PORT will correct the hazard. 2.3 If the PORT (1) notifies the COUNTY that it does not have the ability to immediately correct the identified hazard and requests the COUNTY to perform the correction; or(2)fails to notify the COUNTY within twenty four (24) working hours of notification by the COUNTY of when the PORT will correct the hazard, per Section 2.2, the PORT agrees to pay the costs of the COUNTY's emergency maintenance or repair work in accordance with Section 4. 3. START OF WORK 3.1 The PORT agrees that it shall start its maintenance and repair obligations under this Agreement upon physical completion of the PORT's Project. 4. PAYMENT 4.1 In the event the COUNTY finds it necessary to perform work under this Agreement under Sections 2 and 11.2, the PORT agrees to reimburse the COUNTY for 100% of its actual and documentable direct salary and direct non-salary costs. The COUNTY shall provide a detailed invoice to the PORT for COUNTY work performed. 4.2 The PORT agrees to make payment to the COUNTY within sixty (60) calendar days after the county has received a detailed invoice from the COUNTY. 4.3 The PORT agrees that if it fails to make payment within the prescribed time defined above, the PORT will pay the COUNTY interest on outstanding balances in accordance with RCW 43.17.240. 5. AGREEMENT REPRESENTATIVES 5.1 The COUNTY and the PORT have designated the following Representatives for all communications under this Agreement. COUNTY: Mason County Public Works County Engineer 100 W. Public Works Drive Shelton, WA 98584 (360) 427-9670 ext. 450 PORT: Executive Director P.O. Box 1 Allyn, WA 98524 (360) 275-2430 6. RIGHT OF ENTRY 6.1 The COUNTY hereby grants to the PORT a right of entry upon the Right of Way for the purpose of performing all maintenance and/or repair work as described in the Agreement. 7. MODIFICATION 7.1 This Agreement may be amended or modified only by the mutual agreement of the Parties. Such amendments or modifications shall not be binding unless they are in writing and signed by persons authorized to bind each of the Parties. 8. IMDEMNIFICATION 8.1 The PORT shall protect, defend, indemnify, and save harmless the COUNTY, 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 the damages (both to persons and/or property), arising out of, or in any way resulting from maintenance and/or repair obligations pursuant to the provisions of the Agreement. The PORT will not be required to indemnify, defend, or save harmless the COUNTY if the claim, suit, or action for injuries, death, or damages (both to persons and/or property) is caused by the sole negligence of both Parties, or involves those actions covered by RCW 4.24.115, the indemnity provisions provided herein shall be valid and enforceable only to the extent of each Party's own negligence. 8.2 The PORT specifically assumes potential liability for actions brought by the PORT's own employees against the COUNTY and; solely for the purposes of this indemnification, the PORT mutually waives any immunity it might have under the COUNTY industrial insurance laws, Title 51 RCW. The COUNTY specifically assumes potential liability for actions brought by the COUNTY's own employees against the PORT and; solely for the purposes of this indemnification, the COUNTY mutually waives any immunity it might have under the PORT industrial insurance laws, Title 51 RCW. 8.3 The terms of sections 8.1 and 8.2 shall survive the termination of this Agreement. 9. DISPUTES 9.1 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 in Sections 9.1A through 9.1D shall be a prerequisite to the filing of litigation concerning any dispute between the Parties: The Representatives designated in the 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. 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 the Section 9.1 D. The Representatives shall meet within five (5) working days of receiving the written notice and attempt to resolve the dispute. In the event the Representatives cannot resolve the dispute or issue, the PORT's Chair of the Board of Commissioners and the COUNTY's Chair of the Board or respective designee shall meet and engage in good faith negotiations to resolve the dispute. In the event the PORT's Chair of the Board of Commissioners and the COUNTY's Chair of the Board or respective designee, cannot resolve the dispute issue, the PORT and the COUNTY shall each appoint a member to a disputes board. These two members shall then select a third member 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. 10. VENUE 10.1 In the event that either Party deems it necessary to institute legal action or proceeding to enforce any right or obligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in the superior court situated in Thurston County, Washington. Further, the Parties agree that each will be solely responsible for payment of its own attorney's fees, witness fees, and costs. 11. TERMINATION 11.1 The COUNTY may terminate this Agreement after providing the PORT with a sixty (60) calendar days written notice of termination. The PORT may terminate this Agreement only with written concurrence from the COUNTY. 11.2 In the event that this Agreement is terminated by the PORT or the COUNTY, the COUNTY, at its sole discretion, may perform landscape and/or Irrigation Systems maintenance, repair and operation, or may alter or remove the landscaping and/or Irrigation Systems from the Right of Way. 11.3 In the event the COUNTY elects to alter or remove the landscaping and/or Irrigation Systems, per Section 11.2, the PORT agrees to be responsible of all costs of the work performed by the COUNTY and shall make payment in accordance with Section 4. 11.4 In the event that the Agreement is terminated by either Party, it will not become effective until the terms of Sections 2 and 11.2 are completed and payment under Section 4 is received by the COUNTY. 12. WORKING DAYS 12.1 Working days for this Agreement are defined as Monday through Friday, excluding Washington COUNTY holidays per RCW 1.16.050. IN WITNESS WHEREOF, the Parties hereto have executed the Agreement as of the Party's date last signed below. PORT OF ALLYN: MASON COUNTY DEPARTMENT OF PUBLIC WORKS: e�� X By: )��E Lawrence F. oppo ecutive Director Meli sa McFadden, PE, County Engineer