2015/08/19 Council Agenda Packet

X 2. Coordination with Third Parties. The Joint Use Agreement and the Third Party Agreements have been structured to enable the City to assume control of the Joint Use Facilities, as provided herein and in accordance with the parties' original intent as described in Recital D, in an expeditious and efficient manier with very limited costs and requirements for consents and approvals from third parties. K -C and the City agree to coordinate all dealings with third parties in connection with the transfer of control to minimize disruption to the continued ownership and use of the Joint Use Facilities and minimize additional costs to K -C and the City. Without limitation, K -C and the City shall do the following: A. Marysville. The City and K -C will jointly coordinate with Marysville with respect to the City's exercise of its right to assume control of the Joint Use Facilities and the City's assumption of K -C's rights and obligations under the K -C Marysville Agreement, as was anticipated in Section 5.3 of the City Marysville Capacity Agreement and Section 5.4 of the K -C Marysville Capacity Agreement. B. Port of Everett. The City and K -C will jointly inform the Port of Everett that K -C has conveyed the Joint Use Facilities to the City and that the City will assume K -C's rights and obligations under the Tri -Party Agreement, as was anticipated in Section 11.E of the Port Easement. C. Department of Natural Resources. K -C will cooperate with the City regarding the City's assumption of control of the Joint Use Facilities and the transfer of the K -C Capacity to the City. D. BNSF. K -C and the City will use commercially reasonable efforts to obtain BNSF's consent to the assignment of the BNSF License to the City pursuant to Section 30 thereof. 3. Operations and Maintenance Costs. K -C shall have no further obligation to reimburse the City for any operation or maintenance costs for the Joint Use Facility arising after the Transfer Effective Date. The City shall pay K -C $71,687.01 within 30 days after receipt of an invoice from K -C for such amount, which the City and K -C agree is full payment for all outstanding amounts due to K -C related to the sediment sampling in 2013 and the beach repair work as originally outlined in the memorandum dated July 19, 2012 from Anchor QEA, LLC to K -C and the City. Upon receipt of such payment, K -C and City agree that they have paid each other in full for all operation and maintenance costs arising prior to the Transfer Effective Date. 4. Transfer Effective Date. The "Transfer Effective Date" for the purposes of this Amendment shall be the first business day after the full execution of this Amendment by the parties hereto. 5. Satisfactory Performance of Prior Construction Obliizations. K -C and the City agree that (i) K -C has designed and constructed the Joint Use Facilities and the Facilities have been finally accepted and placed in service all in accordance Sections 10.4 and 11 and the other provisions of the Joint Use Agreement and (ii) the City has paid, in frill, all amounts payable by the City under Sections 4 and 5 of the Joint Use Agreement. To the extent it has not already done so, K -C hereby assigns as of the Transfer Effective Date to the City all warranties, rights and claims against any engineering firms, designers, architects, suppliers, environnental and other consultants, Construction Contractors and other third parties relating to the design, engineering, construction and operation of the Joint Use Facilities. The provisions of Section 11.3.2 of the Joint Use Agreement shall remain in full force and effect after the Transfer Effective Date. 6. Project Review Team. As of the Transfer Effective Date, K -C shall not have the right to participate on the PRT or have any representatives on the PRT and actions by the PRT after such date shall not be subject to the agreement of K -C. The City shall have the sole right to select the representatives on the PRT, set the agenda for the PRT and, in its discretion, terminate the PRT and select a different method or body to provide policy and management coordination and oversight of the Joint Use Facilities.