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ORDINANCE NO. 4 8 4 9
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, APPROVING ACCEPTANCE OF CATEGORY "Z" FIINDS FROM
WASHINGTON STATE LEGISLATIVE APPROPRIATION FOR STUDY OF
TRAFFIC IMPACTS CAUSED BY THE REOPENING OF STAMPEDE PASS ROUTE
BY THE BURLINGTON NORTHERN-SANTA FE RAILWAY.
WHEREAS, the City Council of
adopt and approve all appropriations
Chapter 35A.33
THE CITY
ORDAIN AS FOLLOWS:
RCW; and
COUNCIL OF
the City of Auburn must
by Ordinance pursuant to
Council
from legislative
study of traffic
Pass route
THE CITY OF AUBURN, WASHINGTON, DO
Pursuant to Chapter 35A.33 RCW, the City
hereby approves the acceptance of Category ~Z" Funds
appropriation in the amount of $75,000 for
impacts caused by the reopening of Stampede
by the Burlington Northern-Santa Fe Railroad
City of Auburn creating vehicular backup on major
There is no local matching requirement for this
through the
City streets.
grant. The
execute the
Washington
Mayor and City Clerk are hereby authorized to
Local Agency Agreement between the City and the
State Department of Transportation approving said
Ordinance No. 4849
March 21, 1996
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Agreement, a copy of which is attached hereto as Exhibit "A"
and is incorporated herein by reference. The Mayor and City
Clerk are also authorized to approve and execute any future
supplemental agreements thereto required for completion of
phases of the project including but not limited to design,
right-of-way, and construction.
~ The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry
out the directions of this legislation.
~L~CJ~tD~_3_~ This Ordinance shall take effect and be in
force five (5) days from and after its passage, approval and
publication, as provided by law.
INTRODUCED:
PASSED:
APPROVED:
CHARLES A. BOOTH
MAYOR
Ordinance No. 4849
March 21, 1996
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ATTEST:
Robin Wohlhueter,
City Clerk
Michael J. Reynolds,
City Attorney
Published:
Ordinance No. 4849
March 21, 1996
Page 3
~----~ Washington State
Department of Transportation
Agency C";/l*,y nf Au~u~'n
Address
25 West Main
Local Agency Agreement
Auhurn WA gRF)O 1
Project No.
Agreement No.
For Headquarters WSDOT use only.
The Local Agency having complied, or hereby agreeing to comply, with the terms and conditions set forth in (1) Title 23, U.S. Code Highways, (2)
the regulations issued pursuant thereto, (3) Office of Management and Budget Circulars A-102 and A-128, (4) the polities and procedures
promulgated by the Washington State Department of Transportation, and (5) the federal aid project agreement entered into between the State and
Federal Goverranent, relative to the above project, the Washington State Department of Transportation will authorize the.Local Agency to
proceed on the project by a separate notificaQon. Federal fimds which are to be obligated for the project may not exceed the amount shown herein
on line s, column 3, without written authority by the State, subject to the approval of the Federal Highway Adminisfration. All project costs not
reimbursed by the Federal Government shall be the respor~sibility of the Local Agency.
Project Description
Name Burlington Nnrt. hern Railrnad (Zn_ Traffic. Imp~aenC~tms
Te~ini "C" St. NW/SW, "M" St SE
4 miles
DoscrlptlonofWork To identify the adverse impacts of long trains (up to 7000')
traveling at the speed of 9 MPH. %hese slow moving trains will block at
grade crossing for a significant amount of time creating long vehicular
back up on major city streets.
Estimate of Funding
Type of Work m m ~l
EstlmatedTotal Estimated Estimated
Project Funds Agency Funds Federal Funds
BE a. A§e.cy work ....... Z,5.,,..0. Q.0. ................................................................. ZS.,.~).Q.O .............
b. Other
c. State services
d. Total PE cost estimate (a+b+c)
~ghtofWay e. Agencywork ..............................................................................................................................
f. Other
g. State services
h. Total R/W cost estimate (e+f+g)
Construction i. Contract
j. Other
k. Other
1. Other
m. Total contract costs (i+j+k+l)
Construction Engineering
n. Agency ..............................................................................................................................
o. Other
p. State forces
q. Total construction engineering (n+o+p)
r. Total construction cost Estimate (re+q)
s. Totalcostestimateoftheproject (d+h+r) 75,000 75,000
Federal partzapat onin construction engineering (q) is hmited to 15 percent of the total contract costs (hne m, column 3.
The federal aid participation rate in this .project will be determined by the Federal Government. The parties expect that it will be 1 0 0
percent; however, it is understood that the rate may vary. The Local Agency agrees that this agreement is entered into without relying upon any
representation by the state made outside of this contract, or contained herein, as to what the federal participation rate will be. It further agrees
that it will not condition any future actions with respect to the project covered by this agreement upon past, current, or future representations as
to the federal participation rate. The dollar amount of federal Eart cipat on cannot exceed the amount shown in line s, column 3. All costs not
reimbursed by the Federal Government shall be the responsibility of the Local Agency.
Labor for purposes of investigatJ,on to ascertain compliance with such
rules, regula~ons and orders.- ·
· (f) In tho event of the contractor's noncompliance with the
nondiscrimination cIauses of tlxis contract or with any of such ~tes,
regulations or orders, this contract may be canceled, terminated, or
suspended in whole or in part and the contractor may be declared
ineligible for further government contracts or federally assisted
construction contracts in accordance with procedures authorized in
Executive Order 11246 of September 24, 1965, and such other sanctions
may be imposed and remedies invoked as provided in Executive Order
11246 of September 24, 1965, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
(g) The contractor will include the provisions of this Section 11-2
in every subcontract or purchase order unless exempted by rules,
regulations, or orders of the Secretary of Labor issued pursuant to
Section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor.
The contractor will take such action with respect to a~y subcontract or
purchase order as the Agency, Washington State Department of
Transportation, or Federal Highway Administration may direct as a
means of enforcing such provisions including sanctions for
noncompliance: Provided, however, that in the event a contractor
becomes involved in, or is threatened with, litigation with a
subcontractor, he may request the United States to enter into such
litigation to protect the interests of the United States.
The Agency further agrees that it will be bound by the above
equal opportunity clause with respect to its own employment practices
when it participates in federally assisted construction work: Provided,
that if the applicant so participating is a State or Local Government, the
above equal opportunity clause is not applicable to any agency,
instrumentality, or subdivision of such government which does not
participate in work on or under the contract. The Agency also agrees:
(I) To assist and cooperate actively with the State in obtaining
the compliance of contractors and subcontractors with the equal
opportunity clause and rules, regulations, and relevant orders of the
Secretary of Labor.
(2) To furnish the State such information as it may require for the
supervision of such compliance and that it will otherwise assist the
State in the discharge of its primary responsibility for securing
compliance.
(3) To refrain from entering into any contract or contract
modification subject to Executive Order, 11246 of September 24, 1965,
with a contractor debarred from, or who has not demonstrated
eligibility for, government contracts and federally assisted construction
contracts pursuant to the Executive Order.
(4) To carry out such sanctions and penalties for violafign of the
equal opportunity clause as may be imposed upon contractors and
subcontractors by the State, Federal Highway Administration, or the
Secretary of Labor pursuant to Part II, subpart D of the Executive
Order.
in addition, the Agency agrees that if it fails or refuses to comply
with these undertakings, the State may take any or all of the fo low ng
actions:
(a) Cancel, terminate, or suspend this agreement in whole or in
part;
Co) Refrain from extending any further assistance to the Agency
under the program with respect to which the failure or refusal occurred
until satisfactory assurance of future compliance has been received
from the Agency; and
(c) Refer the case to the Department of Justice for appropriate
legal proceedings.
XII. Liquidated Damages
The Agency hereby agrees that the liquidated damages
provisions of 23 CFR Part 630, Subpart 305, as supplemented, relative
to the amount of Federal participation in the project cost, shall be
applicable in the event the contractor fails lo complefe the contract
within the contract time. Failure to include liquidated damages
provision will not relieve the Agency from reduction of federal
participation in accordance with this paragraph.
XIII. Termination for Public Convenience
The Secretary of the Washington State Department of
Transportation may terminate the contract in whole, or from time to
time in part, whenever:
(1) The requisite federal funding becomes unavailable through
failure of appropriation or otherwise.
(2) The contractor is prevented from proceeding with the work
as a direct result of an Executive Order of the President with respect to
the prosecution of war or in the interest of national defense, or an
Executive Order of the President or Governor of the State with respect
to the preservation of energy resources.
(3) The contractor is prevented from proceeding with the work
by reason of a preliminary, special, or permanent restraining order of a
court of competent jurisdiction where the issuance of such order is
primarily caused by the acts or omissions of persons or agencies other
than the contractor.
(4) The Secretary determines that such termination is in the best
interests of the State.
XIV. Venue for Claims and/or Causes of Action
For the convenience of the parties to this contract, it is agreed
that any claims and/or causes of action which the Local Agency has
against the State of Washington, growing out of this contract or the
project with which it is concerned, shall be brought only in the
Superior Court for Thurston County.
XV. Certification Regarding the Restrictions of the Use
of Federal Funds for Lobbying
The approving authority certifies, to the best of his or her
knowledge and belief, that:
(1) No federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for influencing
or attempting to influence an officer or employee of any federal
agency, a member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with the
awarding of any federal contract, the making of any federal grant, the
making of any federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or
modification of any federal contract, grant, loan, or cooperative
agreement.
(2) If any funds other than federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any federal agency, a member of
Congress, an officer or employee of Congress, or an employee of a
member of Congress in connection with this federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and
submit the Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subgrants, and contracts and subcontracts under
grants, subgrants, loans, and cooperative agreements) which exceed
$100,000, and that all such subredpients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification as a prerequisite for making or entering
into this transaction imposed by Section 1352, Title 31, U.S. Code. Any
person who fails to file the required certification shall be subject to a
civil penalty of not less than $I0,000 and not more than $100,000 for
each such failure.
Additional Provisions
DOT Form 140-039
amount shown on the face of this agreement for those costs eligible for
fqderal participation tc~ the extent that'such costs are d rect y attribut-
able ~nd proberly allocable to this project. Expenditures by t'he Local
superwsmn, and other overhead shall not be eligible for federal
participation.
The 5tare will pay for State incurred costs on the project.
Following payment, the State shall bill the Federal Government for
reimbursement of those costs eligible for federal participation to the
extent that such costs are attributable and properly allocable to this
project. The State shall bill the Agency for that portion of State costs
which were not reimbursed by the Federal Government (see
Section VIL1).
2. Project Construction Costs
Project construction financing will be accomplished by one
of the three methods as indicated in this agreement.
Method A - The Agency will place with the State, within (20)
amount of the Agency's share of the total construction cost based on
the contract award. The State will notify the Agency of the exact
amount to be deposited with the State. The State w~ll pay all costs
incurred under the contract upon presentation of progress billings
from the contractor. Following such payments, the State will submit a
billing to the Federal Government for the federal aid participation
share of the cost. !,Vhen the project is substantially completed and final
actual costs of the project can be determined, the State will present the
Agency with a final billing showing the amount due the State or the
amount due the Agency. This billing will be cleared by either a
payment from the Agency to the State or by a refund from the State to
the Agency.
Method B - The Agency's share of the total construction cost as
shown on the face of this agreement shall be withheld from its monthly
fuel tax allotments. The face of this agreement establishes the months
in which the withholding shall take place and the exact amount to be
withheld each month. The extent of withholding will be confirmed by
letter from the State at the time of contract award. Upon receipt of
progress billings from the contractor, the State will submit such
billings to the Federal Government for payment of its participating
portion of such billings.
Method C - The Agency may submit vouchers to the State in the
format prescribed by the State, in quadruplicate, not more than once
per month for those costs eligible for Federal participation to the extent
that such costs are directly attributable and properly allocable to this
project. Expenditures by the Local Agency for the establishment,
maintenance, general administration, supervision, and other overhead
shall not be eligible for FederaI participation.
The State shall re~'nburse the Agency for the Federal share of
eligible project costs up to the amount shown on the face of this
agreement. At the time of audit, the Agency will provide
documentation of ail costs incurred on the project.
The State shall bill the Agency for all costs incurred by the State
relative to the project. The State shall also bill the Agency for the
federal funds paid by the State to the Agency for project costs which
are subsequently determined to be ineligible for federal participation
(see S~ction VIII).
VII. Audit of Federal Aid Project
The Agency, if services of a consultant are required, shall be
responsible for audit of the consultant's records to determine eligible
federal aid costs on the project. The report of said audit shall be in the
Agency's files and made available to the State and the Federal
An audit shall be conducted by the WSDOT Internal Audit
Office in accordance with generally accepted governmental auditing
standards as issued by the United States Generai Accounting Office by
the Comptroller General of the United States; WSDOT Directive
D27-50, Consultant Authorization, Selection, and Agreement
Administration; memoranda of understanding between WSDOT and
FHWA; and Office of Management and Budget Circular A-128.
federal money in ineligible items of cost has occurred, the Agency shall
reimburse the State for the amount of such overpayment or excess
participation (see Section VI~).
VIII. Payment of Billing
The Agency agrees that if payment or arrangement for payment
of any of the State's billing relative to the project (e.g., State force work,
project cancellation, overpayment, cost ineligible for federal
DOT Form 140-039
Revised 8~35 3
participation, etc.) is not made to the State within 45 days after the
Agency has been billed, the State shall effect reimbursement of the
total sum due from the regular monthly fuel tax allotments to the
Agency from the Motor Vehicle Fund. No additional Federal project
funding will be approved until full payment is received unless
otherwise directed by the Assistant Secretary for TransAid.
IX. Traffic Control, Signing, Marklng~ and Roadway
Maintenance
The Agency will not permit any changes to be made in the
provisions for parking regulations and traffic control on this project
without prior approval of the State and Federal Highway
Adm!nistration. The Agency will not install or permit to be installed
any signs, signals, or markings not in conformance with the standards
approved by the Federal Highway Administration and MUTCD. The
Agency will, at its own expense, maintain the improvement covered
by this agreement.
X. Indemnity
The Agency shall hold the Federal Government and the State
harmless from and shall process and defend at its own expense all
claims, demands, or suits, whether at law or equity brought against
the Agency, State, or Federal Government, arising from the Agency's
execution, performance, or failure to perform any of the provisions of
this agreement, or of any other agreement or contract connected with
this agreement, or arising by reason of the participation of the State or
Federal Government in the project, PROVIDED, nothing herein shall
require the Agency to reimburse the State or the Federal Government
for damages arising out of bodily injury to persons or damage to
property caused by or resulting from the sole negligence of the
Federal Government or the State.
No liability shall attach to the State or Federal Government
except as expressly provided herein.
XI. Nondiscrimination Provision
The Agency hereby agrees that it will incorporate or cause to be
incorporated into any contract for construction work, or modification
thereof, as defined in the rules and regulations of the Secretary of
Labor at 41 CFR Chapter 60, which is paid for in whole or in part with
funds obtained from the Federal Government or borrowed on the
~redit of the Federal Government pursuant to a grant, contract, loan,
insurance, or guarantee or understanding pursuant to any federal ·
program involving such grant, contract, loan, insurance, or guarantee,
the following equal opportunity clause:
"DURING THE PERFORMANCE OF THIS CONTRACT, THE
CONTRACTOR AGREES AS FOLLOWS:"
(a) The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or
national origin. The contractor will take affirmative action to ensure
that applicants are employed and that employees are treated during
employment without regard to their race, color, religion, sex, or
national origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer; recruitment
or recruitment advertising; layoffs or termination; rates of pay or
other forms of compensation, and selection for braining, including
apprenticeship. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided by the Agency setting forth the provisions of this
nondiscrimination clause.
(b) The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all
qualified applicants will receive consideration for employment
without regard to race, color, religion, sex or national origin.
(c) The contractor will send to each labor union or
representative of workers with which he has a collective bargaining
agreement or other contract or understanding, a notice to be provided
by the Agency advising the said labor un/on or workers'
representative of the contractor's commitments under this Section
11-2 and shall post copies of the notice in conspicuous places available
to employees and applicants for employment.
(d) The contractor will comply with all provisions of Executive
Order 11246 of September 24, 1965, and of the rules, regulations, and
relevant orders of the Secretary of Labor.
(e) The contractor will furnish all information and reports
requited by Executive Order 11246 of September 24, 1965, and by the
rules and regulations and orders of the Secretary of Labor, or
pursuant thereto, and will permit access to his books, records, and
accounts by the Federal Highway Administration and the Secretary of
Construction Method of Financing
StateAd an. dAwar .d
~1 Method A -- Advance Payment-- Agency share of total construction cost (based on contract award)
~3 Meth°d B -- Wittth°ld fr°m gas tax the Agency's share of total construction cost (line 4, column 2) in the amount of
$ at $ per month for months
Local Force orLocal Ad and Award
~ Method C -- Agency cost incurred with partial reimbursement
The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and procedures, and as a condition to payment of the
feder,~ds o,bligate~, it accepts and will complyAyith the applicable provisions set forth below. Adopted by official action
Agency Official
Charles ~q. Booth,^May~or
a pprove~;~
/ Michael~eynolds City Attorney
Provisions ,
I. Scope of Work
· The Agency shall provide all the work, labor, materials, and
services necessary to perform the project which is described and set
forth in detail in the "Project Description" and "Type of Work."
When the State acts for and on behalf of the Agency, the State
shall be deemed an agent of the Agency and shall perform the services
described and indicated in "Type of Work" on the face 'of this
agreement, in accordance with plans and specifications as proposed by
the Agency and approved by the State and the Federal Highway
Administration.
When the State acts for the Agency but is not subject to the right
of control by the Agency, the State shall have the right to perform the
work subject to the ordinary procedures of the State and Federal
I-~ighway Administration.
Il. Delegation of Authority
The State is willing to fulfill the responsibilities to the Federal
Government by the administration of this project· The Agency agrees
that the State shall have the full authority to carry out this
administration. The State shall review, process, and approve
documents required for federal aid reimbursement in accordance with
federal requirements. If the State advertises and awards the contract
the State will further act for the Agency n a matters concerning the
project as requested by the Agency. If the Local Agency advert£~es and
awards the project, the State shall review the work to ensure
conformity with the approved plans and specifications·
IlL Project Administration
Certain types of work and services shall be provided by the State
on this project as requested by the Agency and described in the Type
of Work above· In addition, the State will furnish qualified personnel
for the supervision and inspection of the work in progress· On Local
~gency advertised and awarded projects, the supervision and
mspection shall be lhnited to ensuring all work is in conformance with
approved plans, specitications, and federal aid requirements· The
salary of such engineer or other supervisor and all other salaries and
costs incurred by State forces upon the project will be considered a cost
thereof. All costs related to this project incurred by employees of the
State in the customary manner on highway payrolls and vouchers shall
be charged as costs of the project.
IV. Avoilabillty of Record~
All project records in support of all costs incurred and actual
expenditures kept by the Agency are to be maintained in accordance
with procedures prescribed by the Division of Municipal Corpora fions
of the State Auditor's Office, the U.S. Department of Transportation,
and the Washington State Department of Transportation. The records
shall be open to inspection by the State and Federal Government at all
reasonable times and shall be retained and made available for such
inspection for a period of not less than three years from the final
DOT ~orm 140 039
Revised S/~5 2
Washington State Department of Transportation
payment of any federal aid ftmds to the Agency. Copies of said
records shall be furnished to the State and/or Federal Government
upon request.
V. Compliance with Provisions
The Agency shall not incur any federal aid participation costs
on any classification of work on this project until authorized in
writing by the State for each classification. The classifications of work
for projects are:
1. Preliminary engineering up to and including approval.
2, Preparation of plans, specifications, and estimates.
3. Right o f way acquisition,
4. Project construction.
In the event that right of way acquisition, or actual construction
of the road, for which preliminary engineering is undertaken is not
started by the closing of the tenth fiscal year following the fiscal year
in which the agreement is executed, the Agency will repay to the State
the sum or sums of federal funds paid to the Agency under the terms
of this agreement (see Section VIIi).
The Agency agrees that ail stages of construction necessary to
provide the initially planned complete facility within the limits of this
project will conform to at least the minimum values set by approved
statewide design standards applicable to this class of highways, even
though such additional work is financed without federal aid
participation.
The Agency agrees that on federal aid highway constrachon
projects, the current federal aid regulations which apply to liquidated
damages relative to the basis of federal participation in the project
cost shall be applicable in the event the contractor fails to complete
the contract within the contract time.
VI. Payment and Partial Reimbursement
. The total cost of the project, including all review and
engmeering costs and other expenses of the State, is to be paid by the
Agency and by the Federal Government. Federal funding shall be in
accord with the Intermodal Surface Transportat on Efficiency Act
1991, Title 23, United States Code, as amended, and Office of
Management and Budget circulars A-102 and A-128. The State shall
not be ultimately responsible for any of the costs of the project. The
Agency shall be ultimately responsible for all costs associated with the
project which are not reimbursed by the Federal Government.
Nothing in this agreement shall be construed as a promise by the State
as to the amount or nature of federal participation in this project.
1. Preliminary Fmgineerlng, Right o f Way Acquisition, and
AuditCosts
The Agency will pay for Agency incurred costs on the project.
Following such payments, vouchers shall be submitted to the State in
the format prescribed by the State, in quadruplicate, not more than
one per month. The State will reimburse the Agency up to the