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ORDINANCE NO. 5 i 4 2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, APPROVING FEDERAL ISTEA GRANT FUNDS WITH LOCAL
MATCHING FUNDS AS PROVIDED IN THE LOCAL AGENCY AGREEMENT
BETWEEN THE CITY AND THE WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION FOR THE KERSEY WAY IMPROVEMENTS PROJECT.
WHEREAS, the City Council of the City of Auburn must
adopt and approve all appropriations by Ordinance pursuant to
Chapter 35A.33 RCW; and
THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. Pursuant to Chapter 35A.33 RCW, the City
Council hereby approves the expenditure and appropriation of
Federal ISTEA Grant Funds in the amount of $268,000 with local
matching funds of $574,000 for the Kersey Way improvements
project. The Mayor and City Clerk are hereby authorized to
execute the Local Agency Agreement between the City and the
Washington State Department of Transportation approving said
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.
Ordinance No. 5142
August 19, 1998
Page 1
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Section 2. The Mayor is hereby authorized to implement
such administrative procedures as may be necessary to carry
out the directions of this legislation.
Section 3. This Ordinance shall
force ~ive (5) days from and after its
publication, as provided by law.
take e~ect and be in
passage, approval and
INTRODUCED:
PASSED:
APPROVED:
September 8, 1998
September 8, 1998
September 8, 1998
CHARLES A. BOOTH
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
Michael J. Reynolds,
City Attorney
Ordinance #o. 5142
August 19, 1998
Page 2
Washington Statb Local Agency Agreement
.Department of Transportation
· Agency City of Auburn I Project No. ~'rF'~~:''~/""~/~ I
.Address. 25 ~ ~a~. ~L ~*CV Agreement NO. ~~U~ I
Aub~, WA 98001 ' ' I For O~OT Use Only I
' The LocM A~e~reby asreein~w[th ~e tc~s ~d conditions scl fo~ in (t) T[tic 23, U.S. Code Highways, (2)
thc rc[ulatio~ issued pursuit ~crcte, (3) O~cc of M~aEcmcnt ~d Budget Circuits A-I02 ~d A-128, (4) th~ policies ~d procedures
promulgated by ~e W~hinDon State Dcp~mcnt of Tr~sponation, ~d (5) ~c federal ~d project agreement entered into he,can ~c State ~d
Fedcr~ GovemmcnC relative to ~c above project, ~c W~hinston State Dcp~mcnt of Tr~sponation will au~orizc thc Local Asancy to proceed on
the project by a scp~te notfficatten. Federal ~nds which ~ to be obligated fur ~c project may not exceed ~c ~ount shown herein on linc s,
column 3, wi~out ~,cn authofi~ by the State, subject to ~c approval of~c Federal Highway Adminis~ation. All project costs not reimbursed by
· c Federal Govc~cnt shall be ~e responsibili~ of~e Local Agency.
Project Description
Name Kersey Way improvements Length ] .7 miles
Termini S~c~ River Bridge to Ci~ Limits (Kin~ierce Co. linc)
Description of Work
Widen travel lanes and shoulders, improve horizontal and vertical alignments, and new pavement section.
Estimate of Funaing
Type of Work (~) (2) , (3)
Estimated Total Estimated Agency Estimated
i Project Funds Funds Federal Funds
PE a. Agency Work 30,000.00 6,000.00 24,000.00
b. Other Consultants 75,000.00 15,000.00 60,000.00
c. State Services 2,776.00 555.00, 2,221.00
d. Total PE Cost Estimate (a+b+c) I 107,776.00 n,555.ooI 86,221.00
Rigint of Way e. Agency Work
f. Other
g. State Services
h. Total ~ Cost Estimate (e+f+g)
Construction i. Contract ~38,524.00 480,438.001 l 5~k~6.00
I. Other ~ ~..a' / -
m. Total Contract Costs (i+j+k+~O~,'"' 638,524.00 ~ ~1R~,438.00 158,086.00
Corlatructlo, Engl, eering /~;
n. Agency Work q / 20,000.00~ %049.00 4,951.00
o. Other Consultant~ 75,20,~1g0I) 56,53,2..00 18,618.00
p. State Forces //500.00 376.~ 124.00
q. Total Construction Engineering (n+o+p) //~ ~5,700.00 72,0o7.ooi* 23,6~3.o0
r. Total Construction Cost Estimate (m+q) // 734,224.00 552,445.001 '"1~,779.00
s. Total Project Cost Estimate (d+h+r)
*Federal participation in construction engineering (q) is limited to 15 )ement of the total contract costs (line m, column: 8~,; Z~ )
The federal aid participation rate in this project wi!l be determined by the Federal Government. The parties expect that it will be 80
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
~vill 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 participation 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.
DOT ~ ~mSE~ I Exhibit "A", Ordinance No. 5142
Construction Method of Financing (Check Method Selected)
State'Ad and Award
[] Method A - Advance Payment - Agency Share of total construction cost (based on contract award)
[] Method B - Withhold from gas tax the Agency's share of total construction cost (line 4, column 2) in the amount of
$ at $ per month for months.
Local Fome or Local 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 federal funds obligated, it accepts and will comply with the applicable previsions set
forth below. Adopted by official action on
September 8
Agency Official ~.~ C,LJoJ~IF~
Title ~-~,/'~0~'? C~ ,D~'
1998
Provisions
I. Scope of Work
Thc Agency shall provide all the work, labor, materials, and services
neccssmy 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 thc Agency, thc State shall have thc right to perform thc work subject to thc
ordinmy procedures of thc State and Federal Highway Administration.
II. DeleBaflon of Authority
Thc State is willing to fulfill the responsibilities to thc Federal Government
by thc administration of this project. Thc Agency agrees that the State shall
have thc full authority to carry out this administration. Thc State shall review,
process, and approve documents required for federal aid reimbursement in
accordance with federal requirements. If thc State advertises and awards the
contract, thc State will further act for thc Agency in all mattcr~ concerning thc
project as requested by thc Agency. If the Local Agency advertises and awards
the project, the State shall review thc work to ensure conformity with the
approved ptans and specifications.
III. Project Administration
Certain types of work and services shall Ix: provided by thc State on this
project as requested by thc Agency and described in the Type of Work above.
In addition, the State will furnish qualified personnel for thc supervision and
inspection of the work in progress. On Local Agency advertised and awarded
projects, the supervision and inspection shall be limited to ensuring all work is
in conformance with approved plans, specifications, 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. Availability of Records
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 Corporations of tbs State Auditer'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
DOT F~ 140~39 EF 2
Revised 5/97
, Resolution/Ordinance No. Ordinance No. 5142
WashingtoWState Depa~nent of Transportation
Assistant Secretary for TransAid
Date Executed ~"~B 1 1 ~
years from the final payment of any federal aid funds to the Agency. Copies of
said records shall be furnished to the State and/or Federal Government upon
request.
V. Compliance with Provisions
Thc 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 of way acquisition.
4. Project construction.
In thc cvent that right of way acquisition, or actual conalmction of the road, for
which prclimina~ engineering is undertaken is not started by the closing of thc
tcnth fiscal year following thc fiscal year in which the agreement is executed, thc
Agency will repay to thc State the sum or sums of federal funds paid to thc
Agency under thc terms of this agreement (see Section VBI).
The Agency agrees that all stages of construction nccessary to provide thc
initially planned complatc facility within the limits of this project will conform to
at Icast thc minimum values set by approvcd statewidc design standards
applicable to this class of highways, even though such additional work is financed
without federal aid participation.
Thc Agency agrees that on federal aid highway construction projects, thc
current federal aid regulations which apply to liquidated damages relative to thc
basis of federal participation in thc project cost shall be applicable in thc event the
contractor fails to complete the contract within thc contract time.
VI. Payment and Partial Reimbursement
Thc total cost of tbs project, including all review and engineering costs and
other expenses of the State, is to be paid by thc Agency and by the Federal
Government. Federal funding shall be in accord with thc Intermodal Surface
Transportation Efficiency Act 1991, Titlc 23, United States Code, as amended,
and Office of Managcment and Budget circulars A-102 and A-128. The State
shall not be ultimatcly responsible for any of thc costs of the project. Thc
Agency shall be ultimately responsible for all costs associated with the project
which arc not reimbursed by the Federal Government. Nothing in this
agrcemcnt shall bc construcd as a promise by the State as to the amount or
nature of federal participation in this project.
1. Preliminary Engineering, Right of Way Acquisition, and Audit Costs
The Agency will pay for Agency incurred costs on the project. Following such
payments, voucbers shall be submitted to thc State in thc format prescribed by the
Statc, in quadruplicate, not more than one per month. The State will reimburse
the Agency up to the amount shown on the face of this agreement for those costs
eligible for federal participation to the extent that such costs ~re directly
· ai~ibutabl¢ and properly allocable to this project. Expenditures by the Local
.Agency for the establishment, maintenance, get.rat administration,
supervision, and other overhead shall not he eligible for federal pasticipation.
The State will pay for State incur~d costs on the project. Following
payment, ibc State shall bill the Federal Government for reimbursement of
those costs eligible for federal paRicipation to thc extent that such costs are
attributable and property 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 Vlll),
The grate will pay for State incurred costs on the project. Following
payment, thc State shall bill the Federal Government for reimbursement of
those costs eligible for federal pa~icipation to the extent that such costs are
ath-ibutobie and properly allocable to this project. Thc State shall bill the
Agency for that portion of State costs which were not reimbursed by the
Federal Government (see Section VIII).
2. Project Construction Co, ts
Project construction financing will he accomplished by one of the three
maihods as indicated in this agreement.
Method A - The Agency will place with the State, within (20) days at, er
the execution of the construction contract, an advance in the amount of the
Agency's share of the total construction cost ba~cd on the conffa~:t award.
The State will notify the Agency of the exact amount to be deposited with the
State. The State will pay all costs incurred under the contract upon
presentaflon 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. When 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 he cleared by either a
payment from the Agency to the State or by a refund fi-om the State to the
Agency.
Method B- The Agency's share oftbe total construction cost as shown
on tho face of this agreement shall be wlthbeid from its monthly fuel t~x
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 lector 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
adminish~,tion, supervision, and other overhead shall not be eligible for
Federal participation.
The State shall reimburse 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 all 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 Section VIII).
VII. Audit of Federal Aid Project
The Agency, if services cfa 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 tiles and made
available to the State and the Federal Government.
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 General Accounting Offce by the Comptroller
General of the United States; WSDOT Directive D 27-50, Consultant
Authorization, Selection, and Agreement Administration; memoranda of
understanding between WSDOT and FHWA; and Office of Management
and Budget Circalar A- 128.
If upon audit it is found that overpayment or participation of 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 VIII).
~111. Payment of Billin9
The Agency agrees that if payment or arrangement for payment of any of the
State's billing ralative to the project (e.g., State force work, project cancellation,
overpayment, cost ineligible for federal 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
the the Assistant Secretary for TransAid.
IX. Traffic Control, Si§nih§, Marking, and Roadway
Maintenance
The Agency will not permit any changes to be made in the provisions for
parking regulations and traffc control on this project without prior approval of
the State and Federal Highway Administration. 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 et its own expense all claims, demands, or suits,
whether at law or equity brought against tho Agenoy. State, or Federal
Government, arising from the Agency's execution, performance, or failure to
pofform any of the provisions of this agreement, or of any other agreement or
contract connected with this agreement, or arising by reason of the pmticipation
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 injuty to persons or damage to property caused hy
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 be~in.
Xl. 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 credit 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:"
(al 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 affrmative action to ensure that applicants are employed and
that employees are treated during employment without regard to theft race, color,
religion, sex, or national origin. Such action shall include, but not he limited to,
the following: employment, upgrading, demotion or transl~r; recruitment or
recruitment advertising; layoffs or termination; rates of pay or other forms of
compensation, and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available lo empioyces 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
p{aced 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 hss a collective bargaining agreement or other contract or
understanding, a notice to be provided by the Agency advising the said labor
union or workers' representative of the contractor's commitments under this
Section 1 l-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
&September 24, 1965, and oftbe rules, regulations, and relevant orders of th=
Secretary of Labor,
(el The contractor will furnish all information and reports required 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 Labor for purposes of investigation to ascertain compliance with
such rules, regulations, and orders.
(fi In the event of the confractor's noncompliance with the
· nondiscrimination clauses 0f this conUact or with any such mlas, regulations
or orders, this contract may be canceled, terrainated, 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 ~s 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 any subcontract or purchase order as the Agency,
Washington State Department of Transpoflation, 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:
(1) 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 prima~y 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 demons~ated eligibiliW for, government
contracts and federally assisted construction contracts pursuant to the
Executive Order.
(4) To carry out such sanctions and penalties for violation 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 following actions:
(al Cancel, terminate, or suspend this agreement in whole or in part;
(b) Refrain from extending any further assistance to the Agency under the
program with respect m which the failure or refusal occurred until
satisfactory assurance of futare compliance has been received from the
Agency; and
(c) Refer the case to the Department of Sustice for appropriate legal
proceedings.
XII. Liquidated Damages
The Agency hereby agrees that the liquidated damages provisions of 23 CFR
Part 630, Subpert 305, ~ supplemented, relative to the amount of Federal
participation in the project cost, shall be applicable in the event the contractor
fails to complete 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.
XIIL Termination for Public Convenience
The Secrcta~ 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 fi'om 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 Ooveruor of the State with respect to the preservation of coergy resources.
(3) The contractor is prevented from proceeding with the work by reason ora
preliminary, special, or permanent restraining order ora 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.
XlV. Venue for Claims and/or Causes of Action
For the convcnicnce of thc parties to this contract, it is agreed that any claims
and/or causes of action which the Local Agency has against thc State of
Washington, growing out of this contract or the project with which it is
concerned, shall be brought only in thc Superior Court for Thurston County.
XV. Certification Regarding the Restrictions of the Use
of Federal Funds for Lobbying
The approving authority certifies, to thc 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 ora 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 l~nds 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 Congrass, 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, Md eontraals and subcontracts under grants, subgrants, loans, and
cooperative agreements) which exceed $100,000, and that all such subrecipients
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 $10,000
and not more than $100,000 for each such failure.
Additional Provisions
DOT F~m 140~39 EF 4
Revised 5/97