Consent Item (A) Washington Metropolitan Area Transit Authority Board Action/Information Summary

Transcription

1 Consent Item (A) Washington Metropolitan Area Transit Authority Board Action/Information Summary Action Information MEAD Number: Resolution: Yes No TITLE: Indemnificaiton of Fairfax County PRESENTATION SUMMARY: To obtain Board approval for indemnification of Fairfax County for permits required for the Cinder Bed Road Bus Garage. PURPOSE: To obtain Board approval for indemnification of Fairfax County for permits required for the Cinder Bed Road Bus Garage. DESCRIPTION: Key Highlights: The Cinder Bed Road Bus Garage is located in Fairfax County and the county requires permits. Background and History: The Cinder Bed Road Bus Garage is proposed as a replacement for the Royal Street Bus Garage. Discussion: The Cinder Bed Road Bus Garage Project is in the permitting phase and is following Fairfax County requirements to obtain the permits. The County requires the preparation and submission of their standard forms as part of the permitting process. Some of the forms include language requiring that the signatory indemnify the County. Board policy states that only the Board can offer indemnification. FUNDING IMPACT: There is no impact on funding for WMATA to indemnify Fairfax County. Project Manager: John D. Thomas Project TIES/MCAP Department/Office:

2 TIMELINE: Previous Actions Anticipated actions after presentation Issued notice to proceed for the design build contract in Febraury Complete applications for permits. RECOMMENDATION: Board approval for indemnification of Fairfax County for permits required for the Cinder Bed Road Bus Garage.

3 PRESENTED AND ADOPTED: February 26, 2015 SUBJECT: INDEMNIFICATION OF FAIRFAX COUNTY IN CONNECTION WITH THE CONSTRUCTION OF THE CINDER BED ROAD BUS DIVISION RESOLUTION OF THE BOARD OF DIRECTORS OF THE WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY WHEREAS, The Washington Metropolitan Area Transit Authority (WMATA) is in the process of building the Cinder Bed Road Bus Division; and WHEREAS, WMATA is required to receive certain permits and approvals from Fairfax County as part of the development and construction; and WHEREAS, Fairfax County requires certain indemnification provisions in the documents the County requires prior to issuing these approvals and permits, as shown in Attachment A, and requires specific written authorizations from the Board of Directors to execute and deliver these documents; and WHEREAS, WMATA must move forward with the project immediately in order to remain compliant with conditions in the County-issued Special Exception for the project; and WHEREAS, The Board of Directors' approval is required for WMATA to indemnify a third-party; now therefore be it RESOLVED, That the Board of Directors approves inclusion of the indemnification provisions shown in Attachment A in the permits and approvals required by Fairfax County, unless more favorable language can be negotiated by WMATA Staff; and be it further RESOLVED, That the Board of Directors authorizes the Interim General Manager/Chief Executive Officer, or the General Manager/Chief Executive Officer, or the Chief Procurement Officer, each individually to execute the permitting documents required by Fairfax County; and be it further RESOLVED, That the Board of Directors authorizes the Interim General Manager/Chief Executive Officer, or the General Manager/Chief Executive Officer, or the Director, Station Area Planning and Asset Management, each individually to execute the real property related documents required by Fairfax County; and be it further Motioned by Mrs. Hudgins, seconded by Mr. Downs Ayes: 8 - Mr. Downey, Mr. Goldman, Mrs. Hudgins, Mr. Downs, Ms. Tregoning, Mrs. Hampshire-Cowan, Mr. Corcoran and Mr. Evans

4 RESOLVED/ That the Board of Directors authorizes and empowers the Officers named above and their delegates to execute and deliver performance agreements, bonds, escrow agreements, permits applications, deeds, record plats and other related documents that may be required by Fairfax County and its agencies in connection with the development and construction of the Cinder Bed Road Bus Division; and be it finally RESOLVED/ That this Resolution shall be effective immediately to ensure that the project can move forward on the timeline authorized by the County-issued Special Exception. Reviewed as to for. and legal sufficiency, WMATA File Structure No.: Grants of Indemnification Mark R. Pohl Acting General Counsel 2

5 ATTACHMENT A CONSERVATION AGREEMENT (WMATA is "Developer") 2. In the event that measures for conservation as provided for in the conservation plan referred to herein, or on any approved revision hereof, are not constructed, installed, maintained, or otherwise implemented, as determined by the Director of the Department of Public Works and Environmental Services and or his designee or successor (''Director''), the County may give the Developer notice of violation and an opportunity to comply, and upon failure of the Developer to comply within the time period allowed by the County in its notice, the County, or its designee or agent, shall have the right, but not the obligation, to enter upon Developer's property and shall construct such measures or do such other work as may be necessary, according to the conservation plan. 3. In the event that immediate construction, installation, maintenance, and/or any implementation of conservation measures is required, as determined by the Director, during the development process to prevent adverse sedimentation or erosion or to protect the public health, safety or welfare, the County may give the Developer notice of violation and an opportunity to comply, and upon failure of the Developer to comply within the time period allowed by the County in its notice, the County, or its designee or agent, shall have the right but not the obligation to enter upon Developer's property and construct such measures or do such other work as may be necessary. 4. In the event the conservation plan has been installed or constructed according to design, but fails, or inadequately effectuates the conservation measures required by County standards, or inadequately controls sediment or erosion as determined by the Director, upon notice to the Developer by the County, the Developer agrees to submit a revision to the conservation plan and institute measures to effectuate such measures or control. In the event Developer fails to do so within the time period allowed by the County in its notice, the County may revise the conservation plan and may but is not obligated to enter upon Developer's property to construct the necessary measures, all at the expense of the Developer. 5. In the event sedimentation and/or erosion from the property adversely affects down-stream drainage, any adjacent or down-stream property owner, or any street, road, highway or other public easement, the County may give the Developer notice of violation and an opportunity to comply, and upon failure of the Developer to comply within the time period allowed by the County in its notice, the County shall have the right but not the obligation to enter upon Developer's property to take such steps as may be necessary to prevent future off-site or on-site sedimentation or erosion, repair or clean-up any off-site or on-site damage, or install any appropriate conservation measures, all at the expense of the Developer. 6. In the event tree protection or other conservation measures are not installed, damaged trees are not repaired, dead, dying or hazardous trees or branches within and

6 contiguous to the development area are not removed, or trees or other conservation measures required by the conservation plan, or required revision, are not installed as specified on the conservation plan, or required revision, the County may give the Developer notice of violation and an opportunity to comply, and upon failure of the Developer to comply within the time period allowed by the County in its notice, the County shall have the right but not the obligation to enter upon the Developer's property to perform such work, all at the expense of the Developer. 7. In the event County performs work of any nature, including labor, use of equipment, and materials under the provisions of Paragraphs 2, 3, 4, 5 and 6 above, either by use of public forces or by private contract, it shall use the sum deposited herewith and any accrued interest to pay for such work. The Developer shall be sent notice when such sums are used. In addition, the Developer shall reimburse the County for all costs the County incurs to perform such work in excess of the amount of the sum deposited with this agreement. And 12. In the event Developer fails to comply with any provision of this Agreement and the County initiates legal proceedings to enforce its provisions, the County shall be entitled to receive all foreseeable damages, including, but not limited to, costs of engineering, design, construction, administration, and reasonable attorneys' fees. STORMWATER MANAGEMENT AGREEMENT (WMATA is "Landowner'1 5. In the event the County, pursuant to this Agreement, performs work of any nature, or expends any funds in performance of said work for labor, use of equipment, supplies, materials, and the like, the Landowner shall reimburse the County upon demand, within ten (10) days of receipt of an invoice thereof for all costs incurred by the County hereunder. And 7. The Landowner, its executors, administrators, assigns, and any other successors in interest, shall indemnify and hold harmless the County and its agents and employees for any and all damages, accidents, casualties, occurrences or claims which might arise or be asserted against the County from the construction, presence, existence or maintenance of the Stormwater management facilities by the Landowner of the County. In the event a claim is asserted against the County, its agents or employees, the County shall promptly notify the Landowner and the Landowner shall defend at his own expense any suit based on such claim. If any judgment or claims against the County, its agents or employees shall be allowed, the Landowner shall pay all costs and expenses in connection therewith. 2

7 DEVELOPMENT AGREEMENT (WMATA is "Developer'') 6. To provide and maintain all-weather access, including snow removal and ice control, from all occupied dwellings to a public highway in the primary or secondary highway system. The Developer is responsible for providing and maintaining this access for roads within the dedicated right-of-way until the roads are accepted by the Virginia Department of Transportation (VDOT) into the state system of highways. Streets that will not be accepted by VDOT for maintenance shall be maintained by the Developer until the project is released by the Director from bond or other such instrument of security. If the Developer fails to provide and maintain this access, the Board or its assigns has the right to enter upon the property to provide and maintain this access. In the event that the Developer fails to provide and maintain all-weather access as described in this paragraph, or is otherwise in default, the Director may withhold the issuance of any permits to the Developer on this project. In addition, in the event that the Board has performed this work, the Developer shall fully compensate the Board for all documented costs and fees associated and related to the performance of such work. 7. That if, in the opinion of the Director that immediate action is required to secure, correct and/or restore any work, structural failure or similar occurrence that is causing or likely will cause damage or result in a health or safety hazard as a result of the project, the Developer shall fully compensate the Board for all its documented costs and fees directly associated with and related to the performance of such work. And 9. That any construction or improvement required under this agreement that is ultimately to be maintained by a governmental entity shall be considered complete when it is accepted by the governmental entity. The Developer further agrees to be responsible for all maintenance and deterioration of the physical improvements and facilities until such improvements are accepted by the applicable governmental entity or until the bond and development agreement are released. And 12. In the event that any suit, action or proceeding is brought by the County to enforce any provision of this Agreement, it is expressly agreed and understood that, regardless of when the breach of this Agreement occurs, the measure of damages recoverable shall be the costs of completion and/or correction of the work required by the Agreement as of the earlier of the following two dates: (a) when the work is actually completed and/or corrected to final local and final state approval and acceptance; or (b) date of trial. It is further expressly agreed and understood that the measure of damages shall include, but shall not be limited to, construction, engineering, surveying, maintenance, 3

8 deterioration, administration, superv1s1on, reasonable attorney's fees, and any costs associated or related to any litigation of this Agreement and shall be adjusted for inflation. RETAINING WALL AGREEMENT (WMATA is "Owner'1 4. In the event that the County shall conclude, in its sole discretion, that the Owner has failed to properly inspect, maintain or repair the retaining wall and/or the Outer Pipe and that such failure threatens the Inner Pipe or other storm drainage facilities within the Easement, the County shall give the Owner written notice of its failure under this Agreement and allow a reasonable period of time, not to exceed 45 days, for the Owner to cure said failure. Upon the failure of the Owner to cure said failure to the satisfaction of the County, the County may take whatever steps it deems necessary to cure said failure. Notwithstanding any other provision in this Agreement to the contrary, if the County determines that upstream flooding is imminent or any emergency situation exists, the County may, without providing notice to the Owner, take whatever steps it deems necessary to maintain the Easement and the storm water facilities therein. Whenever reasonably possible, the County shall attempt to notify the Owner prior to entering the Property. 5. In the event that the County performs work of any nature, or expends funds for claims, labor, use of equipment, supplies, materials, or the like, the Owner shall reimburse the County for such costs upon demand, within thirty (30) days of receipt of an invoice therefore. If the Owner does not pay the invoice within 30 days of receipt, it agrees that the County may, among other things, record a lien against the Property for the invoice amount. Notwithstanding the preceding provisions of this Paragraph No. 5, the County shall not seek reimbursement for the routine maintenance of the Easement or the storm water facilities located therein. 6. The Owner, its successors and assigns, agrees to indemnify and hold harmless the County, its officers, agents and all employees and volunteers from any and all claims for bodily injury or damages to property arising in any way out of the construction, maintenance, presence, existence or use of the Easement, the retaining wall, the Outer Pipe, the Inner Pipe, or appurtenant facilities located within the Easement and, in connection with such claims, the Owner agrees to indemnify and hold harmless the County, its officers, agents and all employees and volunteers from the costs of investigation and all expenses of litigation, including, but not limited to, reasonable attorneys' fees and costs of appeals. 4