HomeMy WebLinkAbout07-18-2011 Agenda
Public Works Committee
July 18, 2011 - 3:30 PM
Annex Room 2
AGENDA
I. CALL TO ORDER
A. Roll Call
B. Announcements
C. Agenda Modifications
II. CONSENT AGENDA
A. Approval of Minutes* (Selle)
Approve the minutes of the June 20, 2011 Public Works Committee meeting
B. Public Works Project No. CP1008* (Wickstrom)
Grant permission to enter into Amendment No. 1 to Consultant Agreement No. AG-C-402
with KPFF Consulting Engineers for Engineering Services for Project No. CP1008, Bridge
Load Rating Project
III. RESOLUTIONS
A. Resolution No. 4726* (Sweeting)
A Resolution of the City Council of the City of Auburn, Washington, Authorizing the Mayor
to Negotiate and Execute an Agreement with Burlington Northern Santa Fe Railway
Company (BNSF) for the Purpose of Constructing and Maintaining the M Street SE
Underpass Project (C201A)
B. Resolution No. 4727* (Dunsdon)
A Resolution of the City Council of the City of Auburn, Washington, Authourizing the Mayor
to Accept a Grant from The Washington State Department of Transportation for Safe
Routes to School Improvements at Hazelwood Elementary, Lea Hill Elementary and
Rainier Middle Schools
IV. DISCUSSION ITEMS
A. 2011 Arterial and Collector Crackseal Project Streets (Wickstrom)
B. Storm Drainage SDC Credit (Carlaw)
C. Capital Project Status Report* (Gaub)
V. ADJOURNMENT
Agendas and minutes are available to the public at the City Clerk's Office, on the City website
(http://www.auburnwa.gov), and via e-mail. Complete agenda packets are available for review at the
City Clerk's Office.
*Denotes attachments included in the agenda packet.
AGENDA BILL APPROVAL FORM
Agenda Subject:
Approval of Minutes
Date:
July 13, 2011
Department:
Public Works
Attachments:
July 5, 2011 Minutes
Budget Impact:
$0
Administrative Recommendation:
Public Works Committee to approve the minutes of the June 20, 2011 Public Works
Committee meeting.
Background Summary:
Reviewed by Council Committees:
Public Works
Councilmember:Wagner Staff:Selle
Meeting Date:July 18, 2011 Item Number:CA.A
AUBURN * MORE THAN YOU IMAGINEDCA.A
Public Works Committee
July 5, 2011 - 3:30 PM
Annex Room 2
MINUTES
I.CALL TO ORDER
A.Roll Call
Chairman Wagner, Vice-Chair Bill Peloza, and Member Haugen were
present. Also present during the meeting were: Mayor Pete B. Lewis,
Councilmember John Partridge, City Engineer/Assistant Director Dennis Selle,
Assistant City Engineer Ingrid Gaub, Utilities Engineer Dan Repp, Maintenance
and Operations Engineer Randy Bailey, Traffic Engineer Pablo Para,
Transportation Planner Joe Welsh, Project Engineer Robert Lee, Street Systems
Engineer Seth Wickstrom, Project Engineer Leah Dunsdon, Project Engineer
Jacob Sweeting, Storm Drainage Engineer Tim Carlaw, Finance Director Shelley
Coleman, and Public Works Secretary Jennifer Rigsby.
Members of the public in attendance included: Wayne Osborne and Largo Wales.
B.Announcements
C.Agenda Modifications
There were no agenda modifications.
II.CONSENT AGENDA
A.Approval of Minutes (Dowdy)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve the Public Works Committee Meeting minutes for
date, June 20, 2011.
Motion Carried Unanimously. 3-0.
B.Right-of-Way Use Permit No. 11-10 (Welsh)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve Right-of-Way Use Permit No. 11-10 for the Rottle’s
Annual Sidewalk Sale.
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Transportation Planner Welsh stated that the applicant, Rottle’s Department
Store, has requested to use the B Street Plaza, between E Main Street and the
Safeway parking lot, for their annual sidewalk sale to be held on July 22-24,
2011. The street will not be closed and traffic will not be impacted.
Motion Carried Unanimously. 3-0.
C.Public Works Project No. CP1108 (Lee)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
grant permission to advertise for bids for Project No. CP1108, City Wide Storm
Pond Cleaning.
Project Engineer Lee stated that the scope of the project includes cleaning of
storm detention ponds which is over and above the level of maintenance normally
provided by the City. Chairman Wagner asked if the project is included in the
budget. Lee answered that it is within the proposed storm drainage repair and
replacement program budget for 2011.
Chairman Wagner asked how often the storm ponds require this more intensive
maintenance. Assistant Director/City Engineer Selle answered that it depends on
how much silt build up there is and this is the first time this type of maintenance
has been performed on these proposed facilities since they were constructed.
Chairman Wagner asked if the bids are based on the cubic feet of sediment that
needs to be removed or square footage of the pond. Project Engineer Lee said
that the cost is based on the amount of sediment that needs to be removed and
the overall area of the facility, including mowing the outer and inner areas of the
pond.
Motion Carried Unanimously. 3-0.
D.Public Works Project No. CP0803 (Dunsdon)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
grant permission to advertise for bids for Project CP0803 – 37th Street SE/R
Street SE Pedestrian Connector.
Project Engineer Dunsdon explained that the original grant was not initially
intended to be used for Project No. CP0803, but was transferred to this project
when the original project encountered scope problems. Staff had anticipated that
additional funding would be needed for this trail project, in response to a question
asked by Chairman Wagner.
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Dunsdon stated that pervious pavement is being used in the project and there is
replacement of fencing and new lighting included in the scope of the project,
which add to the costs of the project, in responses to questions asked by
Chairman Wagner regarding the project’s budget. Assistant Director/City Engineer
Selle pointed out that this project will include pervious asphalt which will be the
first time the material will be used in the City.
Member Haugen asked how many lights are included in the project’s
scope. Project Engineer Dunsdon answered that the current design calls for four
lights. Member Haugen asked about the trail’s proximity to the river. Dunsdon
answered that the trail is several hundred feet away from the White River.
Motion Carried Unanimously. 3-0.
E.Public Works Project No. C410A (Dunsdon)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
approve Change Order No. 1 to Contract No. 11-12 for Project No. C410A, 277th
Street Wetland Mitigation Monitoring.
The Committee and Project Engineer Dunsdon reviewed the project’s budget
status sheet.
Motion Carried Unanimously. 3-0.
F.Public Works Project No. CP0916 (Sweeting)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve as amended . The Committee recommended the
City Council grant permission to advertise for bids for Project No. CP0916, West
Valley Highway Improvements, amended, without the incentive clause.
Project Engineer Sweeting distributed an exhibit of the project’s final design to the
Committee. Sweeting reviewed the summary of improvements included in the
project’s scope.
Chairman Wagner asked about guardrails. Project Engineer Sweeting said that
guardrails are included in the design on the east side of West Valley Highway,
where the slope is steeper.
Chairman Wagner asked what the factor was in determining where the sidewalks
end. Sweeting stated that the sidewalk will extend from the Yahn and Sons
Funeral Home property at W Main Street and West Valley Highway south to the
limits of the City Right-of-Way. In order to construct sidewalks further south, into
the Washington State Department of Transportation’s (WSDOT) limited access
area, staff would have to request a variance from the State to install a pedestrian
facility.
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Project Engineer Sweeting said that staff is requesting permission to advertise for
the project because advertisement for construction needs to begin in the next two
to three weeks in order to complete construction this year. Staff is still waiting for
a permit from the Army Corps the Engineers (the Corps), which is expected to be
issued in the next few weeks. Sweeting explained that if the permit is delayed the
project construction will need to be postponed until next year due to the impact of
weather conditions on the length of the road closure.
Project Engineer Sweeting stated that the project will not be advertised until the
permit from the Corps is obtained and that this is a requirement of the
Transportation Improvement Board (TIB) Grant. Assistant Director/City Engineer
Selle stated that the Corps has given an indication that the permit will be
issued. Mayor Lewis stated that once the City Council grants permission to
advertise the project, the Corps will be provided copies of the approval.
Project Engineer Sweeting reviewed the detour route for the project at the request
of Chairman Wagner. The detour will extend from West Valley Highway at Main
Street to C Street SW/NW, then south to 15th Street SW and back to West Valley
Highway. There will also be signs on SR 167 at the 15th Street on ramp to
encourage drivers to remain on SR 167 as well as signs on SR 18 warning of the
closure. Chairman Wagner asked for additional explanation of the incentive
proposal. Project Engineer Sweeting stated that shortening the duration of the
road closure would be better for the public and the duration could be shortened if
the contractor decided to work double shifts or structures the construction in a
more efficient manner and contractors typical do not do that unless there is an
incentive. Sweeting stated that offering incentives has been successful in the
past. The incentive proposed for Project No. CP0916 is $10,000.00 per day for up
to 14 days, or $140,000.00, to shorten the duration by 2 weeks. Chairman
Wagner stated that shortening the 8 week long closure by only 14 days may not
be worth the cost of the incentive. The Committee and staff discussed the pros
and cons of the proposed incentive. The Committee came to a concurrence that
the incentive would not be a great enough benefit to the citizens of Auburn for the
cost.
Motion Carried Unanimously. 3-0.
G.Public Works Project No. C201A (Sweeting)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
award Contract No. 11-17 to Buckley Recycle Center Inc. for Project No. C201A,
M Street Underpass Project – Residential Buildings Demolition.
Project Engineer Sweeting stated that the residential properties that the City has
purchased on M Street SE are ready to be demolished along with the residential
structure in Cedar Lane Park.
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Vice-Chair Peloza asked if the 70% goal for recycling materials is included in the
contract. Sweeting confirmed that a 75% goal is included in Contract No. 11-
17. Project Engineer Sweeting pointed out that the contractor is a recycling
center.
Motion Carried Unanimously. 3-0.
H.Public Works Project No. CP1002 (Wickstrom)
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
approve Change Order No. 1 to Contract No. 10-13 for work on Project No.
CP1002, 2010 Local Street Pavement Preservation Project.
Street Systems Engineer Wickstrom said that Change Order No. 1 is for the 2010
Local Street Pavement Preservation Project and not the 2011 project, in response
to a question asked by Chairman Wagner.
Motion Carried Unanimously. 3-0.
III.RESOLUTIONS
A.Resolution No. 4718 (Bailey)
A Resolution of the City Council of the City of Auburn, Washington, Authorizing
the Mayor to Execute a Cooperative Purchasing Agreement with Houston-
Galveston Area Council for the Purpose of Purchasing General Supplies and
Equipment
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
adopt Resolution No. 4718.
Maintenance and Operations Manger Bailey was present.
There were no questions from the Committee. Vice-Chair Peloza spoke in favor of
the agreement.
Motion Carried Unanimously. 3-0.
B.Resolution No. 4719 (Bailey)
A Resolutoin of the City Council of the City of Auburn, Washington, Authorizing
the Mayor to Execute a Cooperative Purchasing Agreement with the U.S.
Communities for the Purpose of Purchasing General Supplies and Equipment
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
adopt Resolution No. 4719.
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There were no questions from the Committee.
Motion Carried Unanimously. 3-0.
C.Resolution No. 4723 (Wickstrom)
A Resolution of the City Council of the City of Auburn, Washington, Authorizing
the Mayor to Award and Execute an Agreement with the Lowest Responsible
Bidder for Construction of the Public Works Contract Number 11-09 for Project
CP1101, 2011 Local Street Pavement Preservation Project - Phase 1
Councilmember Peloza moved and Councilmember
Haugen seconded to Approve that the Committee recommend the City Council
adopt Resolution No. 4723.
Street Systems Engineer Wickstrom stated that the bid opening was held on
Thursday, June 30, 2011 and distributed the bid totals summary to the
Committee.
Wickstrom reported that the bid came in approximately $150,000.00 below the
engineer’s estimate. Street Systems Engineer Wickstrom explained that staff still
needs to complete the background checks on the contractor and that is why
permission for the Mayor to award the contract is necessary.
Motion Carried Unanimously. 3-0.
D.Resolution No. 4725 (Repp)
A Resolution of the City Council of the City of Auburn, Washington, Authorizing
the Mayor and City Clerk to Negotiate and Execute a Purchase Agreement with
Covington Water District and King County Water District #111
Councilmember Peloza moved and Councilmember
Wagner seconded to Approve that the Committee recommend the City Council
adopt Resolution No. 4725.
Utilities Engineer Repp said that staff prepared a cost estimate for constructing
the same line and the estimate range was $393 - $342 per lineal foot. The
Covington Water District and King County Water District #111 made an offer to
sell their existing water main on 132nd Avenue SE for the price of $400 per lineal
foot. Using the City’s cost estimate, City staff negotiated a sale price of $350 per
lineal foot plus tax for a total of approximately $472,000.00.
Utilities Engineer Repp discussed the benefits of purchasing a preexisting water
main versus constructing a new main with the Committee.
Chairman Wagner asked what the water districts used the water main for in the
past. Repp answered that the districts constructed the pipeline as part of the
improvements that needed to get water up to Lea Hill when they entered the
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agreement to purchase water from the City.
Utilities Engineer Repp discussed the long term implications purchasing the
pipeline would have to the water system plan and operation.
Chairman Wagner asked if City standards were used when the pipeline was
constructed. Assistant Director/City Engineer Selle answered the districts’
standards are very similar to the City’s and the City was involved in review and
construction of the project because it was a joint project.
Vice-Chair Peloza asked about the age of the pipeline. Repp answered that the
line in 15 years old and a pipeline life is anticipated to be 80 – 100 years.
Utilities Engineer Repp responded to questions asked by Vice-Chair Peloza
regarding the costs that were included when calculating the cost estimate
prepared by the City. Assistant Director/City Engineer Selle stated that the cost of
purchasing the existing pipeline would be about the same cost if the City
constructed a new pipeline plus there would be no risk of construction or
disruption of traffic. Purchasing the existing line will also minimize the
environmental impact because there would be no new construction.
Member Haugen asked if the pipeline was constructed when the City entered into
the agreement to sell water to King County Water District #111. Repp confirmed
that to be correct.
Member Haugen stated that she was against selling water the Water District #111
and would be voting against the adoption of Resolution No. 4725 because of that.
Motion Carried. 2-1. Those voting no: Haugen .
IV.DISCUSSION ITEMS
A.Ordinance No. 6362 (Coleman)
An Ordinance of the City Council of the City of Auburn, Washington, Amending
Ordinance No. 6339, the 2011-2012 Biennial Budget Ordinance as Amended by
Ordinance No. 6351 and Ordinance No. 6352 Authorizing Amendment to the City
of Auburn 2011-2012 Budget as Set Forth in Scheudle "A"
Finance Director Coleman stated that the primary purpose of Budget Amendment
3 is to carry forward the 2010 ending fund balances for 2011. These adjustments
are usually made this time of year, following the conclusion of the State audit.
The Committee and Finance Director Coleman discussed the change in format of
the Summary of Budget Adjustments by Fund spreadsheet.
Chairman Wagner asked what caused the lower King County Metro wastewater
treatment services rates. Finance Director Coleman explained that the budget
was based on the number of customers and Metro’s four quarter rolling rate
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average and the services rates will probably be higher next year.
Vice-Chair Peloza asked if the Defensive Driving Program, listed as a General
Fund line item on page 92, is for City employees. Coleman answered that the
program is not an employee program; it is a new Court program.
Chairman Wagner asked if the policy of keeping the ending balance of the 102
Arterial Streets Fund as low as possible is being followed. Coleman stated that
the ending balance in the fund reflects the funds that were moved into the account
for capital projects. For example, Transportation Impact Fees and transferred into
the account as projects are budgeted. The 102 fund also includes grant monies
and fuel taxes. Finance Director Coleman confirmed that there is not a lot of funds
that go into the 102 fund without having a project associated with them, in
response to a questions asked by Chairman Wagner.
Finance Director Coleman verified that monies in the 105 Arterial Street
Preservation Fund comes from the utility tax and that is the only source of
revenue for that fund, in response to a question asked by Chairman Wagner.
Chairman Wagner asked if staff tracks the delinquent payments to the 121
Business Improvement Area Fund and if those amounts are significant. Coleman
answered that the delinquent payments and the amounts are more than 10% of
the total fund balance. Mayor Lewis stated that some of the delinquencies are
from businesses that are no longer in business. Coleman stated that the
delinquent accounts for businesses still in business are handled by Code
Enforcement.
Member Haugen asked if there is an average amount that businesses pay to the
Business Improvement Area Fund. Finance Director Coleman answered that the
payment amount depends on the business’s square footage and the average
payment is probably between $500.00 and $1000.00. Chairman Wagner asked
how many accounts there are. Coleman answered approximately 200 accounts.
Chairman Wagner asked how much of the 122 Cumulative Reserve Fund is
dedicated. Finance Director Coleman answered that some of the funds are
dedicated to the Auburn Environmental Park Project (AEP) and the remainder of
the funds are not dedicated.
Chairman Wagner asked how much of the 2010 Annex A&B Bond Debt Fund
revenues are paid by the utilities as rent for their space. Coleman answered that
the amount is currently budgeted at $750,000.00 and that the total debt service
payment is reflected on the spreadsheet.
Chairman Wagner commented that the amounts in the enterprise funds will
change dramatically due to the utility bond money. Coleman confirmed that to be
correct.
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Finance Director Coleman said that a lot of the monies in the 435 Airport Fund will
be spent on maintenance at the airport, in response to questions asked by
Chairman Wagner. Chairman Wagner asked if any fund would be used to replace
the storm line on 30th Street. Coleman answered that she does not expect any
airport funds to be used on that storm project.
The Committee discussed the robustness of the 437 Golf Course Fund. Mayor
Lewis stated the City needs two strong years to improve the condition of the fund.
Chairman Wagner asked if the 518 Information Services Fund was being lowered
as has been discussed by the Committees and Council in the past. Finance
Director Coleman answered that the fund is being drawn down and the goal is to
lower it to approximately $1M.
Mayor Lewis spoke about the state of the City’s budget and stated that staff is
going to continue to over estimate expenses and under estimate income at this
time due to the flux of the current economy.
B.Storm Drainage Comprehensive Plan Update (Carlaw)
Storm Drainage Engineer Carlaw presented the proposed update to Capital
Improvements Project (CIP) #13, Relieve 30th Street NE Area Flooding, in the
Comprehensive Storm Drainage Plan (CSDP) to the Committee.
Staff completed the monitoring and additional modeling with calibration. Staff
confirmed that there is some flooding along the 30th Street Corridor about every
2-3 years. Staff also investigated adding potentially C Street drainage on the north
end of the City. Storm Drainage Engineer Carlaw stated that the proposed update
also addresses flooding which is currently experienced in the vicinity of I Street
NE, near the western edge of the City. The area was formerly not included in the
CSDP.
Project #13 will consist of three phases. The first phase would address flooding
along 30th Street NE. The second phase would address the flooding adjacent to I
Street NE and the third phase would address flooding on C Street NE, near 37th
Street NE.
Chairman Wagner suggested that Phase 2 of the project may be scheduled for a
later year since there may be major changes made to the I Street Corridor in the
near future. Storm Drainage Engineer Carlaw stated that Phase 2 may be delayed
at the recommendation of the Committee. Mayor Lewis asked if there would be
negative consequences to delaying Phase 2 of the project. Assistant Director/City
Engineer Selle responded that this project is being proposed to be included in the
Comprehensive Plan so the project can be planned for in the future and the less
critical phases of the project could be deferred to a later time.
Vice-Chair Peloza asked if phase 1 will help to improve the conveyance for storm
water from the airport. Assistant Director/City Engineer Selle confirmed that is
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correct.
Chairman Wagner asked if the airport storm drainage inventory will be used
during the design of phase 1. Storm Drainage Engineer Carlaw verified that is
correct.
Storm Drainage Engineer Carlaw asked if the Committee would like to continue to
plan for phase 2 for 2014. The Committee and staff discussed development of the
I Street Corridor. Assistant Director/City Engineer Selle pointed out that the RPG
property being considered for development is further north than the vicinity of
phase 2 of the project. Vice-Chair Peloza asked if phase 2 will relieve flooding for
Auburn citizens’ properties. Carlaw answered that it would. Vice-Chair Peloza
stated that he would prefer to keep phase 2 planned for 2014. Chairman Wagner
agreed.
The Committee and staff discussed the project’s proposed schedule. Assistant
Director/City Engineer Selle explained that staff is currently working on utility
projects that are being funded by bond monies and once those projects are
complete staff will begin work on the other identified priority capital improvements.
Chairman Wagner suggested planning for phase 1 and phase 2 to be completed
concurrently. The Committee supported Chairman Wagner’s
suggestion. Assistant Director/City Engineer Selle spoke about how Project #13
will be incorporated into the entire CIP and included with all of the other storm
drainage improvement projects. The Committee and staff agreed to leave the
project scheduled as it is until utility bond projects are complete and Project #13
can be incorporated into the CIP.
Storm Drainage Engineer Carlaw answered questions asked by Vice-Chair
Peloza regarding the condition of the storm pipes in 30th Street.
Assistant Director/City Engineer Selle answered questions asked by Chairman
Wagner about the Project Cost Summary for 6-Year and 20-Year CIP
spreadsheet.
The Committee supports the proposal. Storm Drainage Engineer Carlaw stated
that the proposal will be brought to the Committee in its final form for approval in
Fall 2011.
C.Capital Project Status Report (Gaub)
Item 21 – CP0909 – Academy Booster Pump Station: Chairman Wagner asked if
the pump station will increase capacity. Utilities Engineer Repp stated that the
project will increase the area that can be served with City water.
Item 22 – CP0915 – Well 1 Improvements: Chairman Wagner asked if staff and
the Committee had agreed to review whether or not to continue with the Well 1
project following the agreement to purchase water from the City of
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Tacoma. Mayor Lewis stated that one of the things Council discussed is that the
City may have good water purchase agreements but the least expensive source
of water is to bring the City’s own wells to as full a capacity as possible. Mayor
Lewis stated that he supports moving forward with the project.
Utilities Engineer Repp pointed out that the water supply needed to meet the
projected demand does include Well 1 as well as the purchase of water from the
interties. The plan to meet demand also includes improvements to Coal Creek
Springs and other City sources. The overall water supply strategy of the City is to
maximize existing water sources and being able to take water from the interties.
Chairman Wagner agreed that the Well 1 project should keep moving forward.
Item 26 – CP1024 – Auburn Way South and M Street SE Intersection
Improvements: Mayor Lewis informed the Committee that there would be a
presentation regarding the project at the City Council Meeting.
Item C – MS1003 – Airport Storm Water Inventory: Chairman Wagner asked
about the recommendations. Assistant City Engineer Gaub answered that the
report was an inventory of the storm drainage system and the next step for staff is
reviewing that report to determine what projects may be needed at/near the
airport to make improvements. Gaub stated that the storm projects previously
discussed by the Committee for the Comprehensive Plan update did take into
account the report findings.
The Committee and staff discussed how storm water projects at the airport are
paid for. Utilities Engineer Repp stated that the improvements made at the airport
and improvements to the City system are funded separately. Assistant
Director/City Engineer Selle stated that the improvements to the overall system
and the airport are coordinated efforts.
The Committee and staff discussed bringing plans for airport storm improvements
to be reviewed be the Public Works Committee.
V.ADJOURNMENT
There being no further business to come before the Public Works Committee, the
meeting was adjourned at 4:49 p.m.
Approved this ____day of _____, 20___.
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AGENDA BILL APPROVAL FORM
Agenda Subject:
Public Works Project No. CP1008
Date:
July 11, 2011
Department:
Public Works
Attachments:
Budget Status Sheet
Vicinity Maps
Budget Impact:
$0
Administrative Recommendation:
Public Works Committee recommend Council grant permission to enter into Amendment No. 1 to
Consultant Agreement No. AG-C-402 with KPFF Consulting Engineers for Engineering Services
for Project No. CP1008, Bridge Load Rating Project.
Background Summary:
As part of the Bridge Maintenance Program, the Bridge Load rating project is load rating five existing bridges in the
City (see attached map). A bridge load rating is a measure of the bridges capacity to safely carry heavy vehicle
traffic. The Federal Highway Administration requires that bridges be load rated in compliance with 23CFR650
Subpart C.
Amendment No. 1 includes the load rating of the four additional bridges shown on the attached map. Specifically, the
consultant will provide the following Engineering Services as part of Amendment No. 1:
Reviewing the plans and inspection reports for each of the four additional bridges.
Preparing a computer model of each bridge and analyzing the model to determine the appropriate load rating
for each bridge.
Preparing a load rating report for each bridge that will satisfy the requirements of 23CFR650 Subpart C.
The anticipated Not-to-Exceed for this amendment is $43,100, increasing the agreement total to $98,772.
A project budget contingency of $1,228 remains in the 102 (Arterial Street) fund.
Reviewed by Council Committees:
Public Works
Councilmember:Wagner Staff:Wickstrom
Meeting Date:July 18, 2011 Item Number:CA.B
AUBURN * MORE THAN YOU IMAGINEDCA.B
Project No: CP1008 Project Title:
Project Manager: Seth Wickstrom
Project Initiation
Initiation Date: _Feburary 22, 2011____ Permision to Advertise
Advertisement Date: ______________ Contract Award
Award Date: ____________________ Change Order Approval
Contract Final Acceptance
Funding Prior Years 20102011 Future Years Total
102 Fund - Arterial Street Fund 100,000 100,000
Total 00100,0000100,000
Activity Prior Years 20102011 Future Years Total
Design Engineer - City Costs*00
Design Engineer - Consultant Costs (Original Agreement)55,67255,672
Design Engineer - Consultant Costs (Amendment No. 1)43,10043,100
Total 0098,772098,772
* City staff costs are charged against the Engineering Budget and not the Project Budget, and are not shown here.
BUDGET STATUS SHEET
Bridge Load Rating Project
Date: July 11, 2011
The "Future Years" column indicates the projected amount to be requested in future budgets.
Funds Budgeted (Funds Available)
Estimated Cost (Funds Needed)
Prior Years 20102011 Future Years Total
**102 Funds Budgeted ( )00(100,000)0(100,000)
102 Funds Needed 0098,772098,772
**102 Fund Project Contingency ( )00(1,228)0(1,228)
102 Funds Required 00000
** ( # ) in the Budget Status Sections indicates Money the City has available.
102 Arterial Street Budget Status
CA.B
CA.B
CA.B
CA.B
CA.B
CA.B
AGENDA BILL APPROVAL FORM
Agenda Subject:
Resolution No. 4726
Date:
July 11, 2011
Department:
Public Works
Attachments:
Reolution No. 4726
Attachment A
Vicinity Map
Budget Impact:
$0
Administrative Recommendation:
Public Works Committee recommend that City Council adopt Resolution No. 4726
Background Summary:
Resolution No. 4726 authorizes the Mayor to negotiate and execute an agreement with Burlington
Northern Santa Fe Railway Company (BNSF) to construct and maintain the M Street SE Underpass
Project.
Per Federal Law, BNSF is required to contribute 5% of the railroad structure cost only to the project, or
$478,000.
Reviewed by Council Committees:
Finance, Public Works
Councilmember:Wagner Staff:Sweeting
Meeting Date:July 18, 2011 Item Number:RES.A
AUBURN * MORE THAN YOU IMAGINEDRES.A
Resolution No. 4726
July 8, 2011
Page 1 of 3
RESOLUTION NO. 4726
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
NEGOTIATE AND EXECUTE AN AGREEMENT WITH
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY
(BNSF) FOR THE PURPOSE OF CONSTRUCTING AND
MAINTAINING THE M ST SE UNDERPASS PROJECT (C201A)
WHEREAS, BNSF owns and operates a line of railroad in and through the
City of Auburn; and
WHEREAS, The City desires to improve the existing M St at-grade crossing
by constructing a new crossing at separated grades to be known as the M St
Underpass; and
WHEREAS, The existing M St at-grade crossing will be permanently
closed, vacated and removed upon completion of construction and the placing in
service of said underpass; and
WHEREAS, the City is the lead agency responsible for the design,
construction, and maintenance of the underpass; and
WHEREAS, as required by federal law, BNSF is required to contribute
$478,000 towards the construction of the Project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
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Section 1. The Mayor is hereby authorized to negotiate and execute an
agreement with the Burlington Northern Santa Fe Railway Company for the purpose
of constructing and maintaining the M St SE Underpass Project, in substantial
conformity with the agreement attached hereto, marked as Attachment “A” and
incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such other
administrative procedures as may be necessary to carry out the directives of this
legislation.
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this _____ day of _________, 2011.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
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Page 3 of 3
ATTEST:
______________________
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
____________________
Daniel B. Heid,
City Attorney
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Attachment A
July 8, 2011
Page 1 of 33
UNDERPASS AGREEMENT
C201A/BF10001657
M St Underpass – Auburn,WA
BNSF File No.BF10001657
M St Underpass
U.S. D.O.T. No.085157R
This Agreement (“Agreement”), is executed to be effective as of this ______ day of _____________,
2011 (“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware corporation
("BNSF"), and The City of Auburn, a municipal corporation of the State of Washington ("The City”).
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through The City of Auburn, State of
Washington;
WHEREAS, The City desires to improve the existing M St at-grade crossing by constructing a new
crossing at separated grades to be known as the M St Underpass and designated as, D.O.T. No.
085157R; and
WHEREAS, The existing M St at-grade crossing will be permanently closed, vacated and removed upon
completion of construction and the placing in service of said underpass;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained
herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I – SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the construction of the
proposed M St Underpass (hereinafter referred to as the "Structure"), more particularly described on the
Exhibit A attached hereto and incorporated herein, including, but not limited to, any and all changes to
telephone, cable, fiber optic, signal and electrical lines and appurtenances, temporary and permanent
track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and
construction engineering and contract preparation. At times during construction of the Structure, vehicular
traffic will be excluded from the use of M St SE between 4th St SE and 6th St SE and rail traffic will be
temporarily relocated on a shoofly in the existing BNSF right-of-way. Additionally, temporary controls
during construction must be in compliance with Section 8A-5, "Traffic Controls During Construction and
Maintenance" of the Uniform Traffic Control Devices Manual, U.S. Department of Transportation.
ARTICLE II – BNSF OBLIGATIONS
In consideration of the covenants of The City set forth herein and the faithful performance thereof, BNSF
agrees as follows:
1. In consideration of the faithful performance of The City’s covenants contained herein, BNSF
hereby grants to The City, its successors and assigns, upon and subject to the terms and conditions set
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July 8, 2011
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forth in this Agreement, a temporary non-exclusive license (hereinafter called, “Temporary Construction
License”) to construct the Structure across or upon the portion of BNSF's right-of-way described further
on Exhibit A, excepting and reserving BNSF’s rights, and the rights of any others who have obtained, or
may obtain, permission or authority from BNSF, to do the following:
(a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires,
pipelines and other facilities of like character upon, over or under the surface of said right-of-
way;
(b) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation,
such facilities as the BNSF may from time to time deem appropriate, provided such facilities
do not materially interfere with The City’s use of the Structure;
(c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate,
provided such use or operations does not materially interfere with The City’s use of the
Structure.
Prior to commencing any work on BNSF’s property or right-of-way, The City must pay BNSF the
sum of thirty four thousand ninety three and No/100 Dollars ($34,093) as compensation for the
Temporary Construction License. The term of the Temporary Construction License begins on the
Effective Date and ends on the earlier of (i) substantial completion of the Structure, or (ii) thirty-six (36)
months following the Effective Date. The Temporary Construction License and related rights given by
BNSF to The City in this provision are without warranty of title of any kind, express or implied, and no
covenant of warranty of title will be implied from the use of any word or words herein contained. The
Temporary Construction License is for construction of the Structure only and shall not be used by The
City for any other purpose. The City acknowledges and agrees that The City shall not have the right,
under the Temporary Construction License, to use the Structure. In the event The City is evicted by
anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to The City
for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to
others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to The
City herein.
Upon receiving the payment from The City described in the subsequent paragraph and provided
The City is in compliance with the terms and conditions of this Agreement, BNSF will grant to The City, its
successors and assigns, easements (hereinafter called, the “Easement”) to enter upon and use that
portion of BNSF’s right-of-way as is necessary to use and maintain the Structure, substantially in the form
of Exhibit B attached to this Agreement. The City must pay BNSF the sum of One hundred four thousand
five hundred one and No/100 Dollars ($104,501.00) as compensation for the Easement within thirty (30)
days of issuing a Notice to Proceed pursuant to Article III, Section 17 of this Agreement. If The City fails
to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop
construction of the Project until full payment is received by BNSF.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the
construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit
D attached hereto and made a part hereof. In the event construction on the Project has not commenced
within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise
the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part
of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on
Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written
approval of The City, which approval will not be unreasonably withheld. Construction of the Project m ust
include the following railroad work by BNSF:
(a) Procurement of materials, equipment and supplies necessary for the railroad work;
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(b) Review of preliminary engineering, design, and preparation of BNSF contract documents;
(c) Furnishing flagging services as required and set forth in further detail on Exhibit C;
(d) Furnishing engineering and inspection as required in connection with the construction of the
Project;
(e) Removal of the existing M St at-grade crossing, including removal of the automatic warning
devices, and obliteration of the crossing between the rails and two feet outside thereof;
(f) Providing a contract project coordinator, at The City’s expense, to serve as a project
manager for the Project;
(g) Construction and removal of Shoofly tracks and ballast for one main track and one siding
track including the lining over and lining back of portions of the existing main tracks;
(h) Removal and replacement of approximately 3000 feet of main track and siding track though
M St;
(i) Installation of one temporary crossing of the tracks for use by the construction contractor;;
(j) Intentionally left blank;
(k) Intentionally left blank; and
(l) Intentionally left blank.
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when
BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its
own employees working under applicable collective bargaining agreements.
4. The City agrees to reimburse BNSF for work of an emergency nature caused by The City or The
City’s contractor in connection with the Project which BNSF deems is reasonably necessary for the
immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such
work may be performed by BNSF without prior approval of The City, The City agrees to fully reimburse
BNSF for all such emergency work, and BNSF agrees to immediately notify the City of all such
emergency work.
5. BNSF may charge The City for insurance expenses, including self-insurance expenses when
such expenses cover the cost of Employer's Liability (including, without limitation, liability under the
Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be
considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for
injury, loss or death to BNSF's employees, if any.
6. During the construction of the Project, BNSF will send The City progressive invoices detailing the
costs of the railroad work performed by BNSF under this Agreement. Unless the City disputes any
charges or requests additional information from BNSF, the City must reimburse BNSF for completed
force-account work within thirty (30) days of the date of the invoice for such work. Once any disputes are
resolved or the requested additional information provided, the City will remit payment within thirty (30)
days. Upon completion of the Project, BNSF will send The City a detailed invoice of final costs,
segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to
this section and Article IV, Section 7 herein, The City must pay the final invoice within ninety (90) days of
the date of the final invoice, unless the City disputes any charges or requests additional information from
BNSF. Once any disputes are resolved or the requested additional information provided, the City will
remit final invoice payment within ninety (90) days . BNSF will assess a finance charge of .033% per day
(12% per annum) on any unpaid sums or other charges due under this Agreement which are past its
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July 8, 2011
Page 4 of 33
credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF,
not the date payment is made or the date postmarked on the payment. Finance charges will be assessed
on delinquent sums and other charges as of the end of the month and will be reduced by amounts in
dispute and any unposted payments received by the month’s end. Finance charges will be noted on
invoices sent to The City under this section.
ARTICLE III – THE CITY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, The City
agrees as follows:
1. The City must furnish to BNSF plans and specifications for the Project. One digital copy on CD or
memory stick with two (2) sets of said plans (reduced size 11” x 17”), together with two copies of
calculations, and two copies of specifications in English Units, must be submitted to BNSF for approval
prior to commencement of any construction. BNSF will give The City final written approval of the plans
and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part
hereof. Upon BNSF’s final written approval of the plans and specifications, said plans and specifications
will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and
specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product
design and/or construction. Any approval by BNSF shall mean only that the plans and specifications
meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed to mean that
the plans and specifications or construction is structurally sound and appropriate or that such plans and
specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes.
2. The City must make any required application and obtain all required permits and approvals for the
construction of the Project.
3. The City must provide for and maintain minimum vertical and horizontal clearances, as required
and approved by BNSF as part of the plans and specifications for the Project.
4. The City must acquire all rights of way necessary for the construction of the Project.
5. The City must make any and all arrangements for the installation or relocation of wire lines, fiber
optic cable, pipe lines and other facilities owned by private persons, companies, corporations, political
subdivisions or public utilities other than BNSF which may be necessary for the construction of the
Project.
6. The City must construct the Project as shown on the attached Exhibit A and do all work (“The
City’s Work”) provided for in the plans and specifications for the Project, except railroad work that will be
performed by BNSF hereunder. The City must furnish all labor, materials, tools and equipment for the
performance of The City’s Work. The principal elem ents of The City’s Work are as follows:
(a) Construction of two railroad single track bridges;
(b) Relocation of utilities as required to support the project; ;
(c) All necessary grading and paving, including backfill of excavations and restoration of
disturbed vegetation on BNSF’s right-of-way;
(d) Placement of of sub ballast (minimum thickness six (6) inches and maximum thickness
twelve (12) inches) on all track roadbeds for the shooflys and for the permanent
replacement of the main track and siding track;
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(e) Placement of a waterproof membrane on the deck of the Structure, and after the
placement of such waterproofing membrane, placement of a layer of crushed rock ballast
(not to exceed six (6) inches in thickness) on the deck of the Structure;
(f) Provide suitable drainage, both temporary and permanent;
(g) Installation of a gate in the fence along the north boundary of BNSF's right of way in
order to provide BNSF with permanent access for maintenance purposes;
(h) Temporary Installation of K-Rail (Jersey) barriers and chain link fencing along M St
between the tracks and the traveled roadways;
(i) Temporary Installation of a chain link fence barrier separating the active rail line from the
rail line on which construction activities are taking place;
(j) Setting centerline stakes and offsets prior to Railway forces constructing the track on the
shoofly;
(k) Provide appropriate pedestrian control during construction;
(l) Intentionally left blank;
(m) Intentionally left blank;
(n) Job site cleanup including removal of all construction materials, concrete debris, surplus
soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the
satisfaction of BNSF;
(o) Perform all other work not specifically mentioned as work to be performed by BNSF
necessary to complete the project in accordance with the project plans and
specifications.
7. The City must apply and maintain said D.O.T. Crossing number 085157R in a conspicuous
location on the Structure.
8. The City’s Work must be performed by The City or The City's contractor in a manner that will not
endanger or interfere with the safe and timely operations of BNSF and its facilities.
9. For any future inspection or maintenance, either routine or otherwise, performed by
subcontractors on behalf of The City, The City shall require the subcontractors to execute the Exhibit C
documents. Prior to performing any future maintenance with its own personnel, The City shall: comply
with all of BNSF’s applicable safety rules and regulations; require any The City employee performing
maintenance to complete the safety training program at the BNSF’s Internet Website
“contractororientation.com”; notify BNSF when, pursuant to the requirements of Exhibit C, a flagger is
required to be present; procure, and have approved by BNSF’s Risk Management Department, Railroad
Protective Liability insurance.
10. In order to prevent damage to BNSF trains and property, The City must require its contractor(s) to
notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in
accordance with the requirements of Exhibit C attached hereto. Additionally, The City must require its
contractor(s) to notify BNSF’s Manager of Public Projects thirty (30) calendar days prior to commencing
work on BNSF property or near BNSF tracks.
11. The City or its contractor(s) must submit four (4) copies of any plans (including two sets of
calculations in English Units) for proposed shoring or cribbing to be used over, under, or adjacent to
BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring or cribbing used by The
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City’s contractor shall comply with BNSF Bridge Requirements set forth on Exhibit F attached to this
Agreement and incorporated herein. Additionally, the shoring and cribbing must comply with all
applicable requirements promulgated by state and federal agencies, departments, commissions and other
legislative bodies.
12. The City must include the following provisions in any contract with its contractor(s) performing
work on said Project:
(a) The Contractor is placed on notice that fiber optic, communication and other cable
lines and systems (collectively, the “Lines”) owned by various telecommunications
companies may be buried on BNSF’s property or right-of-way. The locations of these
Lines have been included on the plans based on information from the
telecommunications companies. The contractor will be responsible for contacting
BNSF’s Engineering Representative Thomas Julik (253.591.2563), BNSF’s Signal
Representative Eric Shaftstall (206.272.3771) and the telecommunications
companies and notifying them of any work that may damage these Lines or facilities
and/or interfere with their service. The contractor must also mark all Lines shown on
the plans or marked in the field in order to verify their locations. The contractor must
also use all reasonable methods when working in the BNSF right-of-way or on BNSF
property to determine if any other Lines (fiber optic, cable, communication or
otherwise) may exist.
(b) The Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor must cooperate fully
with any telecommunications company (ies) in performing such rearrangements.
(c) Failure to mark or identify these Lines will be sufficient cause for BNSF’s engineering
representative Thomas Julik (253.591.2563) to stop construction at no cost to The
City or BNSF until these items are completed.
(d) In addition to the liability terms contained elsewhere in this Agreement, the City shall
require the Contractor to hereby indemnify, defend and hold harmless BNSF for, from
and against all cost, liability, and expense whatsoever (including, without limitation,
attorney’s fees and court costs and expenses) arising out of or in any way contributed
to by any act or omission of Contractor, its subcontractors, agents and/or employees
that cause or in any way or degree contribute to (1) any damage to or destruction of
any Lines by Contractor, and/or its subcontractors, agents and/or employees, on
BNSF’s property or within BNSF’s right-of-way, (2) any injury to or death of any
person employed by or on behalf of any telecommunications company, and/or its
contractor, agents and/or employees, on BNSF’s property or within BNSF’s right-of-
way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by,
or loss of service by a customer or user of such telecommunication company(ies).
THE LIABILITY ASSUMED BY CONTRACTOR WILL APPLY ONLY TO THE EXTENT OF THE
NEGLIGENCE OF CONTRACTOR, ITS AGENTS OR EMPLOYEES, AND WILL NOT BE AFFECTED
BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF
ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT
SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
It is mutually negotiated between the parties that the indemnification obligation shall include all
claims brought by Contractor’s employees against BNSF, its agents, servants, employees or
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otherwise, and Contractor expressly waives its immunity under the industrial insurance act (RCW
Title 51) and assumes potential liability for all actions brought by its employees.
13. The City must require compliance with the obligations set forth in this agreement, including
Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the
specifications therefore (i) the provisions set forth in Article III; (ii) the provisions set forth in Article IV; and
(iii) the provisions set forth in Exhibit C and Exhibit C-l, attached hereto and by reference made a part
hereof.
14. Except as otherwise provided below in this Section 14, all construction work performed hereunder
by The City for the Project will be pursuant to a contract or contracts to be let by The City, and all such
contracts must include the following:
(a) All work performed under such contract or contracts within the limits of BNSF's right-of-
way must be performed in a good and workmanlike manner in accordance with plans and
specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF operations will
be subject to BNSF's approval;
(c) No work will be commenced within BNSF's right-of-way until each of the prime
contractors employed in connection with said work m ust have (i) executed and delivered
to BNSF a letter agreement in the form of Exhibit C-l, and (ii) delivered to and secured
BNSF's approval of the required insurance; and
(d) To facilitate scheduling for the Project, The City shall have its contractor give BNSF’s
representative Thomas Julik (253.591.2563) 2 weeks advance notice of the proposed
times and dates for work windows. BNSF and The Cit y’s contractor will establish
mutually agreeable work windows for the Project. BNSF has the right at any time to
revise or change the work windows, due to train operations or service obligations. BNSF
will not be responsible for any additional costs and expenses resulting from a change in
work windows. Additional costs and expenses resulting from a change in work windows
shall be accounted for in the contractor’s expenses for the Project.
(e) The plans and specifications for the Project must be in compliance with the Bridge
Requirements set forth on Exhibit F.
15. The City must advise the appropriate BNSF Manager of Public Projects, in writing, of the
completion date of the Project within thirty (30) days after such completion date. Additionally, The City
must notify BNSF's Manager of Public Projects, in writing, of the date on which The City and/or its
Contractor will meet with BNSF for the purpose of making final inspection of the Project.
16. TO THE FULLEST EXTENT PERMITTED BY THE LAWS OF THE STATE OF WASHINGTON,
THE CITY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS
AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND
AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES,
LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’ FEES) OF ANY NATURE, KIND OR
DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE
PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM
OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF THE
CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT
THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE CITY,
ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY
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OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR
OMISSIONS OF THE CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS
IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) THE CITY’S BREACH OF THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT GRANTED TO THE CITY PURSUANT TO ARTICLE II OF
THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO THE CITY PURSUANT TO THE
TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
AGREEMENT, (VI) THE CITY’S OCCUPATION AND USE OF BNSF’S PROPERTY OR RIGHT-OF-
WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE
BY THE CITY, OR (VII) AN ACT OR OMISSION OF THE CITY OR ITS OFFICERS, AGENTS,
INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED
BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY
ASSUMED BY THE CITY WILL APPLY ONLY TO THE EXTENT OF THE NEGLIGENCE OF THE CITY,
ITS AGENTS OR EMPLOYEES, AND THIS WILL NOT BE AFFECTED BY THE FACT, IF IT IS A
FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR
CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY
THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
It is mutually negotiated between the parties that the indemnification obligation shall include all
claims brought by The City’s employees against BNSF, its agents, servants, employees or
otherwise, and The City expressly waives its immunity under the industrial insurance act (RCW
Title 51) and assumes potential liability for all actions brought by its employees.
17. The City must give BNSF’s Manager of Public Projects written notice to proceed with the railroad
work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including,
without limitation, procurement of supplies, equipment or materials) until written notice to proceed is
received from The City.
18. Intentionally left blank.
19. Intentionally left blank.
ARTICLE IV – JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner
and each portion must be promptly commenced by the party obligated hereunder to perform the same
and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any
changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior
to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Bridge Requirements set forth on
Exhibit F and the detailed plans and specifications approved by BNSF.
3. The City must require its contractor(s) to reasonably adhere to the Project's construction
schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the
railroad work in accordance with the construction s chedule due to inclement weather or unforeseen
railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to
any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to
reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide
for the immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or
property on or near any BNSF owned property. BNSF will not be liable for any additional costs or
expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any
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reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or
costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events
take place: (i) The City (or any of its contractors) performs the Project work in a manner contrary to the
plans and specifications approved by BNSF; (ii) The City (or any of its contractors), in BNSF’s opinion,
prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the safe and
expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is
canceled during the course of the Project; or (iv) The City fails to pay BNSF for the Temporary
Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work
stoppage will continue until all necessary actions are taken by The City or its contractor to rectify the
situation to the satisfaction of BNSF’s Division Engineer or until additional insurance has been delivered
to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction
License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or
the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of
BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not
limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction
work on the Project, BNSF agrees to immediately notify the following individual in writing:
Jacob Sweeting, Project Engineer
City of Auburn
25 West Main Street
Auburn, WA
98001
5. The City must supervise and inspect the operations of all The City contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all
safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is
not being performed by The City personnel at any time during construction of the Project, BNSF has the
right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will
not proceed until The City corrects the situation to BNSF’s reasonable satisfaction. If BNSF feels the
situation is not being corrected in an expeditious manner, BNSF will immediately notify the person(s)
listed above for appropriate corrective action.
6. BNSF will contribute $478,000.00 (hereinafter referred to as “BNSF’s Share”) towards the
total cost of the Project. BNSF’s Share was negotiated with the City based on the costs for preliminary
engineering, right-of-way and construction within the following limits;
(a) Where a grade crossing is eliminated by grade separation, the structure and approaches
required to transition to a theoretical highway profile which would have been constructed if
there were no railroad present, for the number of lanes on the existing highway and in
accordance with the current design standards of the appropriate state highway; and
(b) Where another facility, such as a highway or waterway, requiring a bridge structure is located
within the limits of a grade separation project, the estimated cost of a theoretical structure
and approaches as described in 23 CFR 646.210(c)(1) to eliminate the railroad-highway
grade crossing without considering the presence of the waterway or other highway.
Additionally, local, state and federal funds will be used in the construction of the Project. The total actual
cost of construction for the Project is presently estimated to be $23,352,538, more particularly described
(together with BNSF’s Share) on Exhibit G attached hereto and incorporated herein.
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7. Pursuant to this section and Article II, Section 6 herein, The City must, “out of funds made
available to it for the construction of the Project”, reimburse BNSF in full for the actual costs of all work
performed by BNSF under this Agreement, less BNSF’s Share as set forth in Article IV, Section 6 herein.
BNSF’s Share must be paid upon completion of the Project.
8. All expenses detailed in statements sent to The City pursuant to Article II, Section 6 herein will
comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of
Transportation, as amended from time to time, which manual is hereby incorporated into and made a part
of this Agreement by reference. The parties mutually agree that BNSF’s review of preliminary
engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the
costs of the Project even though such work may have preceded the date of this Agreement.
9. The parties mutually agree that no construction activities for the Project, nor future maintenance
of the Structure once completed, will be permitted during the fourth quarter of each calendar year without
prior written approval from BNSF. Emergency work will be permitted only upon prior notification to BNSF’s
Network Operations Center (telephone number: 800-832-5452). The parties hereto mutually understand
and agree that trains cannot be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project
will not commence until The City gives BNSF’s Manager of Public Projects thirty (30) days prior written
notice of such commencement. The commencement notice will reference BNSF’s file number
____________________ and D.O.T. Crossing No. 085157R and must state the time that construction
activities will begin.
11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not
limited to, the terms and conditions stated in Exhibit F, BNSF and The City agree to the following terms
upon completion of construction of the Project:
(a) BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, any
access gates installed pursuant to the Project, railroad drainage, and all other railroad
facilities.
(b) The City will own and maintain, at its sole cost and expense, the Structure, except those
items listed in Article IV Item 11(a), the highway approaches, and appurtenances thereto,
lighting, drainage and any access roadways to BNSF gates installed pursuant to this
Agreement. BNSF may, at its option, perform maintenance on the Structure in order to
avoid conflicts with train operations. BNSF will notify The City prior to performing any
such maintenance on the Structure. In the event such maintenance involves emergency
repairs, BNSF will notify The City at its earliest opportunity. The City must fully reimburse
BNSF for the costs of maintenance performed by BNSF pursuant to this subsection (b).
(c) The City must, at The City’s sole cost and expense, keep the Structure, except those
items listed in Article IV Item 11(a) painted and free from graffiti.
(d) The City must apply and maintain vertical clearance signs which consistently and
accurately describe the minimum actual vertical clearance from the bottom of the
Structure to the top of any pavement.
(e) The City agrees to reimburse BNSF for the cost of track surfacing due to settlement
caused by the construction of the Structure for a period not to exceed two (2) years from
the date of final inspection pursuant to Article III, Section 14.
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(f) The City must provide BNSF with any and all necessary permits and maintain roadway
traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to
inspect the Structure, except those items listed in Article IV Item 11(a), or to make
emergency repairs thereto.
(g) It is expressly understood by The City and BNSF that any right to install utilities within
BNSF right-of-way will be governed by a separate permit or license agreement between
the parties hereto.
(h) The City must keep the Structure, except those items listed in Article IV Item 11(a) and
surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and
other animals.
(i) If The City (including its contractors and agents) or BNSF, on behalf of The City, performs
(i) alterations or modifications to the Structure, or (ii) any maintenance or other work on
the Structure with heavy tools, equipment or machinery at ground surface level
horizontally within 25’-0” of the centerline of the nearest track, or (iii) any maintenance or
other work to the superstructure of the Structure, then The City or its contractors and/or
agents must procure and maintain the following insurance coverage:
Railroad Protective Liability insurance naming only the Railroad as the Insured with
coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The
policy must be issued on a standard ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work
or services under this Agreement
As used in this paragraph, “Railroad” means “Burlington Northern Santa Fe Corporation”,
“BNSF RAILWAY COMPANY” and the subsidiaries, successors, assigns and affiliates of each.
In lieu of providing a Railroad Protective Liability Policy, The City may participate in BNSF’s
Blanket Railroad Protective Liability Insurance Policy if available to The City or its contractors.
The limits of coverage are the same as above.
12. The City hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access
from The City property along the BNSF tracks within the project limits to BNSF tracks for maintenance
purposes.
13. The City must provide one set of as printed built plans (prepared in English Units) to BNSF, as
well as a CD or memory stick containing as built CAD drawings of the Structure and identifying the
software used for the CAD drawings. The “as built plans” must comply with the Bridge Requirements set
forth on Exhibit F and depict all information in BNSF engineering stationing and mile post pluses. The “as
built plans” must also include plan and profile, structural bridge drawings and specifications, and drainage
plans. All improvements and facilities must be shown.
14. Subject to the restrictions imposed by Article IV, Section 9 above, The City must notify and obtain
prior authorization from BNSF’s Manager of Public Projects before entering BNSF’s right-of-way for
Inspection or Maintenance purposes, and the BNSF Manager of Public Projects will determine if
flagging is required. If the construction work hereunder is contracted, The City must require its prime
contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1,as the same may be
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revised from time to time The City will be responsible for its contractor(s) compliance with such
obligations.
15. BNSF may, at its expense, make future changes or additions to the railroad components of the
Structure if necessary or desirable, in BNSF’s sole discretion, including, without limitation the following: (i)
the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional
track or tracks, or (iii) the right to build other facilities in connection with the operation of its railroad. Such
changes or additions must not change or alter the highway components of the Structure. If it becomes
necessary or desirable in the future to change, alter, widen or reconstruct the highway components of the
Structure to accommodate railroad projects, the cost of such work, including any cost incidental to
alteration of railroad or highway facilities made necessary by any such changes to the Structure, will be
divided between BNSF and The City in such shares as may be mutually agreed to by the parties hereto.
16. The City may, at The City’s sole expense and discretion, alter or reconstruct the highway
components of the Structure if necessary or desirable, due to traffic conditions or pedestrian or other
recreational traffic; provided, however, that any such alteration or reconstruction must not encroach
further upon or occupy the surface of BNSF’s right-of-way to a greater extent than is contemplated by the
plans and specifications to be approved by BNSF pursuant to Article III, Section 1 herein, without
obtaining BNSF’s prior written consent and the execution of a supplement to this Agreement or the
completion of a separate agreement.
17. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or
the costs or expenses for labor and material connected with the construction will at all reasonable times
be open to inspection and audit by the agents and authorized representatives of the parties hereto, as
well as the State of Washington and the Federal Highway Administration, for a period of three (3) years
from the date of final BNSF invoice under this Agreement.
18. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party.
19. In the event construction of the Project does not commence within twelve (12) months of the
Effective Date, this Agreement will become null and void.
20. Neither termination nor expiration of this Agreement will release either party from any liability or
obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination or expiration.
21. To the maximum extent possible, each provision of this Agreement will be interpreted in such a
manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited
by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of
such prohibition or invalidity and the remainder of the provision will be enforceable.
22. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is
the full and complete agreement between BNSF and The City with respect to the subject matter herein
and supersedes any and all other prior agreements between the parties hereto.
23. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent in PDF format emailed to the parties at the following addresses:
BNSF Railway Company: BNSF’s Manager of Public Projects
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Attachment A
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Richard W Wagner
Richard.Wagner@BNSF.com
The City: Project Engineer
Jacob Sweeting
jsweeting@auburnwa.gov
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
BNSF RAILWAY COMPANY
By:
Printed Name: Sanford Sextus
Title: VP of Engineering for BNSF Railway
WITNESS:
THE CITY
CITY [COUNTY] OF __________________
By:
Printed Name:
Title:
WITNESS:
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Exhibit A
[Insert cross-hatched drawing of the Temporary Construction License and Structure]
[BARTLETT AND WEST TO PREPARE EXHIBIT A]
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EASEMENT AGREEMENT
FOR _____________________________
(Underpass Agreement)
THIS EASEMENT AGREEMENT FOR _________________ ("Easement Agreement") is made and
entered into as of the ____ day of _________ 20___ ("Effective Date"), by and between BNSF RAILWAY
COMPANY, a Delaware corporation ("Grantor"), and __________________________, a ________________
("Grantee").
A. Grantor owns or controls certain real property situated at or near the vicinity of
_______________________, County of _____________, State of _________, at Mile Post __________,
[Project # ___________], as described or depicted on Exhibit "A-1" attached hereto and made a part hereof
(the "Premises").
B. Grantor and Grantee have entered into that certain Underpass Agreement dated as of
______________________________________ concerning i mprovements on or near the Premises (the
“Underpass Agreement”).
C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the
Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set
forth in this Easement Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein,
the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Section 1 Granting of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the
UNDERPASS Agreement. Any improvements to be constructed in connection with the
Easement Purpose are referred to herein as "Improvements" and shall be constructed,
located, configured and maintained by Grantee in strict accordance with the terms of this
Easement Agreement and the UNDERPASS Agreement.
1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over
the Premises for the Easement Purpose and for no other purpose. The Easement is granted
subject to any and all restrictions, covenants, easements, licenses, permits, leases and other
encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises
and subject to all with all applicable federal, state and local laws, regulations, ordinances,
restrictions, covenants and court or administrative decisions and orders, including
Environmental Laws (defined below) and zoning laws (collectively, "Laws"),. Grantor may not
make any alterations or improvements or perform any maintenance or repair activities within the
Premises except in accordance with the terms and conditions of the UNDERPASS Agreement.
1.3 Reservations by Grantor. Grantor accepts and reserves the right, to be exercised by Grantor
and any other parties who may obtain written permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any existing pipe, power, communication, cable, or utility lines and
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appurtenances and other facilities or structures of like character (collectively, "Lines")
upon, over, under or across the Premises;
(b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any tracks or additional facilities or structures upon, over, under or across the
Premises; and
(c) To use the Premises in any manner as the Grantor in its sole discretion deems
appropriate, provided Grantor uses all commercially reasonable efforts to avoid material
interference with the use of the Premises by Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of
this Easement Agreement, shall be perpetual. [If this is a temporary easement replace the preceding
sentence with the following: The term of this Easement, unless sooner terminated under provisions of this
Easement Agreement, shall expire on the date that is ___________________________________ after the
Effective Date.]
Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has
made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any
personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises.
Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to
entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR
CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL
OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO
ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S
CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON
OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS
INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT
IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO
ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has
inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its
physical condition and the danger inherent in Grant or's rail operations on or near the Premises. Grantee
acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's
Contractors (as hereinafter defined) can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE
TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR
USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by
anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the
affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the
lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as
may be necessary to obtain any required permits, approvals or authorizations from applicable governmental
authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance,
or future alteration of the Improvements shall be m ade and maintained in such manner, form and extent as will
provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever an y such
fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of
the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve
such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing
drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate
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sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and
workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or
other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities
(collectively, "Other Improvements"), Grantee will be responsible at Grantee’s sole risk to locate and make any
adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other
Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their
service and obtain the owner’s written approval prior to so affecting the Other Improvements. Grantee must
mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in
order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor
property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist.
The Grantee agrees to keep the above-described prem ises free and clear from combustible materials and to cut
and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises,
said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee
and local laws and regulations and abate any and all hazard of fire.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other
charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-
governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the
Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount
prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees
incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor
shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against
Grantor, including all of Grantor's legal fees and expenses.
Section 7 Environmental.
7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and
local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation
and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not
maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms
are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the
release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances"
may now or in the future be defined by any Environmental Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation
of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to
promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of
all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such
release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a
release or violation of Environmental Laws which occurred or may occur during the term of this Easement
Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during
the construction or subsequent maintenance of the Improvements, soils or other materials considered to be
environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils.
Determination of soils contamination and applicable disposal procedures thereof, will be made only by an The
City having the capacity and authority to make such a determination.
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7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or
activities upon the Premises known to Grantee which create a risk of harm to persons, property or the
environment and shall take whatever action is necessary to prevent injury to persons or property arising out of
such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of
any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to
Grantor's request for information regarding said conditions or activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory
to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above-
stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor
may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon
Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in
Section 9.
Section 8 Default and Termination.
8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly
perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific
performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of
such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or
remove any interference with the activities or property of Grantor, or anyone or anything present on the rail
corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all
costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to
perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this
Easement Agreement.
8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five
(5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the
Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to
terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any
way affect Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from
any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises
are restored as required by Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and
not in limitation of, any other remedies that Grantor may have under the UNDERPASS Agreement, at law or in
equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement,
whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee
shall, at its sole cost and expense, within twelve (12) months perform the following:
(a) remove all or such portion of Grantee's Improvements and all appurtenances
thereto from the Premises, as Grantor directs at Grantor's sole discretion;
(b) repair and restore any damage to the Premises arising from, growing out of, or
connected with Grantee's use of the Premises;
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(c) remedy any unsafe conditions on the Pemises created or aggravated by
Grantee; and
(d) leave the Premises in the condition which existed as of the Effective Date.
9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct
Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee
shall have a limited license to enter upon the Prem ises to the extent necessary to undertake the actions directed
by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement
Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to
the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon
any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until
the Premises are surrendered.
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or
attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized
to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by
Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure
of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or
any other section of this Easement Agreement.
Section 11 Tax Exchange. Grantor reserves the right to assign this Easement Agreement to Apex
Property & Track Exchange, Inc. ("Apex"). Apex is a qualified intermediary within the meaning of Section 1031
of the Internal Revenue Code of 1986, as amended, and Treas. Reg. § 1.1031(k)-1(g), for the purpose of
completing a tax-deferred exchange under said Section 1031. Grantor shall bear all expenses associated with
the use of Apex, or necessary to qualify this transaction as a tax-deferred exchange, and, except as otherwise
provided herein, shall protect, reimburse, indemnif y and hold harmless Grantee from and against any and all
reasonable and necessary additional costs, expenses, including, attorneys fees, and liabilities which Grantee
may incur as a result of Grantor's use of Apex or the qualification of this transaction as a tax-deferred
transaction pursuant to Section 1031. Grantee shall cooperate with Grantor with respect to this tax-deferred
exchange, and upon Grantor's request, shall execute such documents as may be required to affect this tax-
deferred exchange.
Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall
be delivered in the manner set forth in the UNDERPASS Agreement. Notices to Grantor under this Easement
shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk
Drive, Fort Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by
notice to Grantee.
Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in
recordable form and shall not be placed on public record and any such recording shall be a breach of this
Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached
hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform
such form to local recording requirements. [IF LEGAL DESCRIPTION IS NOT AVAILABLE USE THE
FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As of the Effective Date, a legal description of the
Premises is not available. Grantee and Grantor shall work together in good faith to establish the legal
description for the Premises. Once Grantor and Grantee have approved the legal description, Grantor and
Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the
"Memorandum of Easement").] The Memorandum of Easement shall be recorded in the real estate records in
the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and
recorded as described above within ____ days of the Effective Date, Grantor shall have the right to terminate
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 21 of 33
this Easement Agreement upon notice to Grantee.
Section 14 Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of this Easement
Agreement shall be decided according to the substantive Laws of the State of Washington without regard to
conflicts of law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of
Grantee herein contained shall be the joint and several covenants and agreements of such parties. This
instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding
upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run
with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement
Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under
present or future Laws, such provision will be fully severable and this Easement Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining
provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision
herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms
to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee
with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other
agreements between the parties hereto relating to Grantee's use of the Premises as described herein.
However, nothing herein is intended to terminate an y surviving obligation of Grantee or Grantee's obligation to
defend and hold Grantor harmless in any prior written agreement between the parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
14.7 The terms of the UNDERPASS Agreement are incorporated herein as if fully set forth in this
instrument which terms shall be in full force and effect for purposes of this Easement even if the UNDERPASS
Agreement is, for whatever reason, no longer in effect.
[Signature page follows]
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 22 of 33
Witness the execution of this Easement Agreement as of the date first set forth above.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By:
Name:
Title:
GRANTEE:
_______________________________________,
a ______________________________________
By:
Name:
Title:
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 23 of 33
EXHIBIT "A-1"
Premises
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 24 of 33
EXHIBIT "B-1"
Memorandum of Easement
THIS MEMORANDUM OF EASEMENT is hereby executed this day of ,
20___, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose
address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and
_______________________, a _______________("Grantee"), whose address for purposes of this
instrument is _________________________________, which terms "Grantor" and "Grantee" shall
include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives,
successors and assigns of the respective parties:
WITNESSETH:
WHEREAS, Grantor owns or controls certain real property situated in ________ County,
_________ as described on Exhibit "A-1" attached hereto and incorporated herein by reference (the
"Premises');
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated
(the "Easement Agreement") which set forth, among other things, the terms of an easement granted by
Grantor to Grantee over and across the Premises (the "Easement"); and
WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the
Easement Agreement of record.
For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor
does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across
the Premises.
The term of the Easement, unless sooner terminated under provisions of the Easement
Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall
be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by
the terms of the Easement Agreement.
All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated
herein by this reference for all purposes as though written out at length herein, and both the Easement
Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or
document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede
any of the provisions of the Easement Agreement and, to the extent there may be any conflict or
inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement
Agreement shall control.
[Signature page follows]
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 25 of 33
IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to
as of the date and year first above written.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By:
Name:
Title:
GRANTEE:
_____________________________,
_____________________________
By:
Name:
Title:
STATE OF _______________ §
§
COUNTY OF _____________ §
This instrument was acknowledged before me on the ___ day of _________________, 200__, by
(name) as (title) of BNSF RAILWAY
COMPANY, a Delaware corporation.
Notary Public
(Seal)
My appointment expires:
STATE OF _______________ §
§
COUNTY OF _____________ §
This instrument was acknowledged before me on the ___ day of _________________, 200__, by
(name) as (title) of
____________________________, a ______________________.
Notary Public
(Seal)
My appointment expires:
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 26 of 33
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 27 of 33
Exhibit C
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 28 of 33
EXHIBIT D
[Insert Cost Estimate for Railroad Work here]
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 29 of 33
Exhibit E
[Public Projects Manager’s letterhead]
Date: ______________________
Mr./Ms. ______________________
_____________________________[Name of The City Here]
_____________________________[Address for The City]
_____________________________
Re: Final Approval of Plans and Specifications dated _________, 20__, drafted by
_____________________ [insert name of architecture or engineering firm
here] (hereinafter called, the “Plans and Specifications”)
Dear _______________:
This letter serves as BNSF RAILWAY COMPANY’s (“BNSF”) final written approval of the
Plans and Specifications covering the construction of __________________________________
[insert description of the project here ]. This final written approval is given to
_______________ [insert name of The City here] (“The City”) pursuant to Article III, Section
1 of that certain Underpass Agreement between BNSF and The City, dated __________, 200___.
If the Plans and Specifications are revised by The City subsequent to the date set forth above,
this letter shall no longer serve as final written approval of the Plans and Specifications and The
City must resubmit said Plans and Specifications to BNSF for final written approval.
Regards,
_____________
[Public Projects Manager’s Name]
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 30 of 33
Exhibit F
Bridge Requirements
BRIDGE DESIGN, PLANS & SPECIFICATIONS:
Bridge design calculations will be submitted to BNSF for review and approval. Design calculations will be
summarized on a cover sheet to state the design dead load, design live load and amount of impact and any secondary
loads considered. Bridge design by other than a BNSF pre-approved consultant will be subject to a third party
design check at The City’s expense.
For railroad bridges and culverts over waterways, BNSF will be provided with the Hydrology and Hydraulic design
criteria, calculations and site specific data, including electronic data utilized in computer simulation modeling.
Design considerations should include future land use changes that would increase the volume, velocity or sediment
transport characteristics of the streambed flows. Design shall include sediment transport calculations and erosion
control mitigation measures if necessary.
Bridge plans will be submitted to BNSF for review and approval at the 30%, 60% and 90% stage of design. The
final set of plans must be approved by BNSF prior to letting of bids for the Project.
Prior to issuing any invitation to bid on construction of the Structure, The City should conduct a pre-bid meeting
where prospective Contractors have the opportunity to communicate with BNSF personnel as to the site specific
train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any
invitation to bid and specifications for the Structure and the Project must be submitted to BNSF for review and
approval prior to letting of bids for the Project.
BRIDGE CONSTRUCTION:
After awarding the bid, but prior to the Contractor entering BNSF right of way, The City should conduct a pre-
construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity
adjacent to live tracks.
During construction, BNSF will require an experienced Quality Control Inspector to be present during certain
critical times of the Project, including but not limited to: driving foundation piles, erecting falsework, construction
of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. Certain
components, normally produced off site, will require a QC inspector to be present, including the production of
precast concrete components and steel fabrication. The QC inspector will provide reports to BNSF including pile
driving records, concrete compressive test records, and other such reports requested by BNSF. QC Inspection
services can be provided by The City subject to acceptance by BNSF. If the QC services provided are not
acceptable, BNSF will provide an independent QC Inspection service to supplement the deficiencies. The City shall
reimburse BNSF for all costs of supplemental QC Inspection services.
Within 90 days of the conclusion of the Project and final acceptance by BNSF, The City will provide BNSF with a
complete electronic set of the bridge plans labeled “Record Drawings”. Those plans will reflect any and all
deviations from the original plans that occurred during construction. The “Record Drawing” plans will be submitted
in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be
submitted in the original format used for CAD plan preparation and not converted to another format prior to
submission. The plans must show dimensioned locations of existing and relocated utilities.
BRIDGE MAINTENANCE:
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 31 of 33
BNSF will be responsible for maintenance of the track and ballast over the bridge and the earth embankment
approaches. The City will be responsible for maintenance of the structural components of the bridge, including deck
waterproofing and paint.
For bridges over roadways, The City will maintain the roadways under the bridge including signs, pedestrian
walkways, fences, drains, landscaping, earth retention components, embankment slopes, erosion control, surface
drainage, paint, walkways, handrails, lighting and other improvements associated with the Project. The City will be
responsible to post highway vertical clearance signs and maintain such signs to reflect potential future pavement
profile elevation changes. Clearance signs, traffic control signals or other signs should not be attached to a load-
carrying member of the railroad bridge.
For railroad bridges over waterways, The City will be responsible for all aspects of channel maintenance across
BNSF’s right-of-way, including toe of slope erosion control where the railroad embankment meets the streambed.
The City will be responsible for debris removal that may accumulate at bridge piers as well as silt removal, local and
general scour and remediation and streambed lateral migration and streambed degradation remediation.
Fencing and other trespass controls within BNSF’s right-of-way along M Street SE and incorporated into the Project
shall be designed and maintained by The City. Graffiti removal will be the responsibility of The City.
BRIDGE INSPECTION:
BNSF will conduct annual routine structural inspections of railroad bridges over public roadways and waterways at
no cost to The City. The City shall provide traffic control under those bridges spanning roadways to enable BNSF
personnel or representatives to safely conduct the annual inspections. For routine annual inspections, BNSF will
give the the City 14 days advance notice of traffic control requirements. In the event of an earthquake, fire, flood,
damage from vehicular impacts or other emergent situations, The City will provide traffic control in roadways to
allow immediate inspection by BNSF personnel or representatives, as City staff is available. Traffic control will
include lane closures or other such measures to allow BNSF personnel, contractors and equipment to be safely
positioned under the superstructure.
Upon the conclusion of the BNSF inspection, The City will be given a copy of the inspection record and will be
notified of items in need of repair. The City does not complete the repairs requested by BNSF within a reasonable
time period, BNSF personnel and/or contractors will perform the repairs and invoice The City for the entire cost of
such repairs. Regardless of the nature or cause of such maintenance and repairs, traffic control will be provided by
The City at no cost to BNSF to allow safe access to the bridge.
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 32 of 33
RES.A
Resolution No. 4726
Attachment A
July 8, 2011
Page 33 of 33
EXHIBIT G
M St Grade Separation Project
Estimated Total Project Cost
RES.A
RES.A
AGENDA BILL APPROVAL FORM
Agenda Subject:
Resolution No. 4727
Date:
July 12, 2011
Department:
Public Works
Attachments:
Resolution No. 4727
Exhibit A
Map
Budget Impact:
$0
Administrative Recommendation:
Public Works Committee to recommend City Council adopt Resolution No. 4727.
Background Summary:
The Auburn School District's Safe Routes Committee identified pedestrian improvements around
Hazelwood Elementary, Lea Hill Elementary and Rainier Middle School as a priority project for safe route
improvements. The City and the Auburn School District worked jointly to identify the project's scope of
work and to apply for a federal Safe Routes to School grant through the Washington State Department of
Transportation. The City and the Auburn School District received a Safe Routes to School grant in the
amount of $398,500 for safe walking / cycling route improvements at Hazelwood Elementary, Lea Hill
Elementary and Rainier Middle School. This grant does not require a match.
The grant will fund:
1.Construction of bike lane, sidewalk, curb and gutter and ADA accessible ramp improvements to
complete the remaining pedestrian gap on the south side of SE 312th St starting at 124th Ave SE
and extending approximately 600 feet east.
2.Installation of ADA pedestrian push buttons and audible countdown pedestrian signal heads at the
existing signalized intersection of SE 312th St and 124th Ave SE.
3.Construction of upgraded ADA accessible ramps on 116th Ave SE at the two marked school
crosswalks in front of Rainier Middle School and at the intersection of 116th Ave SE and SE 304th
St.
4.Bike lane striping, signage and pavement symbols on 116th Ave SE between SE 312th St and SE
304th St.
5.Incentives such as pedometers, reflective armbands, pedestrian safety booklets and bookmarks for
students who walk or bicycle to school.
6.An enforcement component including increased police presence. Additional right-of-way may be
required for the project.
Resolution No. 4727 authorizes the Mayor to accept a grant in the amount of $398,500 from the
AUBURN * MORE THAN YOU IMAGINEDRES.B
Washington State Department of Transportation for safe routes to school improvements at Hazelwood
Elementary, Lea Hill Elementary and Rainier Middle School.
Reviewed by Council Committees:
Finance, Public Works
Councilmember:Wagner Staff:Dunsdon
Meeting Date:July 18, 2011 Item Number:RES.B
AUBURN * MORE THAN YOU IMAGINEDRES.B
-----------------------------
Resolution No. 4727
July 8, 2011
Page 1 of 3
RESOLUTION NO. 4727
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
ACCEPT A GRANT FROM THE WASHINGTON STATE
DEPARTMENT OF TRANSPORTATION FOR SAFE ROUTES TO
SCHOOL IMPROVEMENTS AT HAZELWOOD ELEMENTARY,
LEA HILL ELEMENTARY AND RAINIER MIDDLE SCHOOL
WHEREAS, the City desires to increase safety in school zones; and
WHEREAS, Hazelwood Elementary, Lea Hill Elementary and Rainier
Middle School have a significant number of students walking to and from the
school sites; and
WHEREAS, the City in partnership with the Auburn School District applied
for and was granted a federal Safe Routes to School grant through the
Washinton State Department of Transportation (WSDOT) in the amount of
$398,500 to finance walking and cycling route improvements for the three Lea
Hill schools, including bike lanes, sidewalks, accessible ramps, curb and gutter,
pedestrian push buttons and audible countdown pedestrian signal heads,
education/encouragement, and enforcement activities; and
WHEREAS, the $398,500 grant consists of $310,650 for design and
construction, $10,350 for right of way, $75,700 for education/encouragement
and $1,800 for enforcement activities; and
WHEREAS, the grant does not require a match, however, the Auburn
School District will contribute in kind funds of $21,597 for
RES.B
-----------------------------
Resolution No. 4727
July 8, 2011
Page 2 of 3
education/encouragement and the City will contribute in kind funds of $1,938 for
enforcement activities; and
WHEREAS, it is in the best interest of the City to use grant monies to
finance safety improvements to the transportation system.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor is hereby authorized to execute a Local Agency
Agreement between the City and Washington State Department of Transportation
for the Design Phase in the total amount of $108,750, in substantial conformity with
the agreement attached hereto, marked as Exhibit A and incorporated herein by
this reference. In addition, the Mayor is hereby authorized to execute any further
necessary supplemental agreements for all future phases of the Project expending
up to the total remaining amount of the grant of $289,750.
Section 2. The Mayor is hereby authorized to implement such other
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
Dated and Signed this _____ day of _________, 2011.
CITY OF AUBURN
RES.B
-----------------------------
Resolution No. 4727
July 8, 2011
Page 3 of 3
PETER B. LEWIS
MAYOR
ATTEST:
______________________
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
_____________________
Daniel B. Heid,
City Attorney
RES.B
Local Agency Agreement
Agency Official Washington State Department of Transportation
By
Title
Date Executed
By
Director of Highways and Local Programs
Agency
Address
City of Auburn
25 West Main Street
Auburn, WA 98001
TheLocalAgencyhavingcomplied,orherebyagreeingtocomply,withthetermsandconditionssetforthin(1)Title23,U.S.CodeHighways,(2)
theregulationsissuedpursuantthereto,(3)OfficeofManagementandBudgetCircularsA-102,A-87andA-133,(4)thepoliciesandprocedures
promulgatedbytheWashingtonStateDepartmentofTransportation,and(5)thefederalaidprojectagreemententeredintobetweentheStateand
FederalGovernment,relativetotheaboveproject,theWashingtonStateDepartmentofTransportationwillauthorizetheLocalAgencytoproceedon
theprojectbyaseparatenotification.Federalfundswhich aretobeobligatedfortheprojectmaynotexceedtheamountshownhereinonliner,
column3,withoutwrittenauthoritybytheState,subjectto theapprovaloftheFederalHighwayAdministration.Allprojectcostsnotreimbursedby
the Federal Government shall be the responsibility of the Local Agency.
Project Description
Description of Work
Name Length
Termini
Lea Hill Safe Walking / Cycling Route Improvements N/A
N/A
Type of Work
Estimate of Funding
(1)(2)(3)
PE
Right of Way
Construction
a. Agency
b. Other
d. State
e. Total PE Cost Estimate (a+b+c+d)
Auburn School Dist.- Education
32,050.00
75,700.00
1,000.00
130,347.00
f. Agency
g. Other
i. State
j. Total R/W Cost Estimate (f+g+h+i)
k. Contract
l. Other
m. Other
o. Agency
p. State
q. Total CN Cost Estimate (k+l+m+n+o+p)
r. Total Project Cost Estimate (e+j+q)130,347.00
0.0075,700.00
0.001,000.00
21,597.00108,750.00
Federal Funds
Estimated
Funds
Estimated Agency
Project Funds
Estimated Total
1
This project will construct pedestrian improvements along the south side of SE 312th St east of the intersection with
124th Ave SE, intersection improvements at 116th Ave SE/SE 304th Street, paint bike lanes on 116th Ave SE between
SE 312th St and SE 304th St and improve curb ramps adjacent to Rainier Ridge Middle School. Auburn School District
will apply a safety education program and Auburn Police Dept. will provide enforcement patrols.
21,597.00108,750.00
For OSC WSDOT Use Only
Project No.
Agreement No.
0.0032,050.00
CFDA No. 20.205
Federal Aid
Participation
Ratio for PE
Federal Aid
Participation
Ratio for RW
Federal Aid
Participation
Ratio for CN
100 %
%
%
(Catalog of Federal Domestic Assistance)
Peter B. Lewis, Mayor
In Kind Services - Education 21,597.0021,597.000.00
h. Other
c. Other
n. Other
DOTForm 140-039 EF
Revised 05/09
Exhibit A
Resolution No. 4727
Exhibit A
July 8, 2011
Page 1 of 4
RES.B
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 formonths.
Local Force 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 provisions set
forth below. Adopted by official action on
July 18 2011,, Resolution/Ordinance No.Resolution No. 4727
2
Provisions
CertaintypesofworkandservicesshallbeprovidedbytheStateonthis
projectasrequestedbytheAgencyanddescribedintheTypeofWorkabove.
Inaddition,theStatewillfurnishqualifiedpersonnelfor thesupervisionand
inspectionoftheworkinprogress.OnLocalAgencyadvertisedandawarded
projects,thesupervisionandinspectionshallbelimitedtoensuringallworkis
inconformancewithapprovedplans,specifications,andfederalaid
requirements.Thesalaryofsuchengineerorothersupervisorandallother
salariesandcostsincurredbyStateforcesupontheproject willbeconsidereda
costthereof.AllcostsrelatedtothisprojectincurredbyemployeesoftheState
inthecustomarymanneronhighwaypayrollsandvouchersshallbechargedas
costs of the project.
I. Scope of Work
TheAgencyshallprovideallthework,labor,materials,and services
necessarytoperformtheprojectwhichisdescribedandsetforthindetailinthe
“Project Description” and “Type of Work.”
WhentheStateactsforandonbehalfoftheAgency,theStateshallbe
deemedanagentoftheAgencyandshallperformtheservicesdescribedand
indicatedin“TypeofWork”onthefaceofthisagreement,inaccordancewith
plansandspecificationsasproposedbytheAgencyandapprovedbytheState
and the Federal Highway Administration.
WhentheStateactsfortheAgencybutisnotsubjecttotherightofcontrol
bytheAgency,theStateshallhavetherighttoperformtheworksubjecttothe
ordinary procedures of the State and Federal Highway Administration.
II. Delegation of Authority
TheStateiswillingtofulfilltheresponsibilitiestotheFederalGovernment
bytheadministrationofthisproject.TheAgencyagreesthattheStateshall
havethefullauthoritytocarryoutthisadministration.TheStateshallreview,
process,andapprovedocumentsrequiredforfederalaidreimbursementin
accordancewithfederalrequirements.IftheStateadvertisesandawardsthe
contract,theStatewillfurtheractfortheAgencyinallmattersconcerningthe
projectasrequestedbytheAgency.IftheLocalAgencyadvertisesandawards
theproject,theStateshallreviewtheworktoensureconformitywiththe
approved plans and specifications.
III. Project Administration
IV. Availability of Records
Allprojectrecordsinsupportofallcostsincurredandactualexpenditures
keptbytheAgencyaretobemaintainedinaccordancewithlocalgovernment
accountingproceduresprescribedbytheWashingtonStateAuditor’sOffice,the
U.S.DepartmentofTransportation,andtheWashingtonStateDepartmentof
Transportation.TherecordsshallbeopentoinspectionbytheStateandFederal
Governmentatallreasonabletimesandshallberetainedand madeavailablefor
suchinspectionforaperiodofnotlessthanthreeyearsfrom thefinalpayment
ofanyfederalaidfundstotheAgency.Copiesofsaidrecords shallbe
furnished to the State and/or Federal Government upon request.
TheAgencyagreesthatonfederalaidhighwayconstructionprojects,the
currentfederalaidregulationswhichapplytoliquidateddamagesrelativeto
thebasisoffederalparticipationintheprojectcostshall beapplicableinthe
event the contractor fails to complete the contract within the contract time.
V. Compliance with Provisions
TheAgencyshallnotincuranyfederalaidparticipationcostsonany
classificationofworkonthisprojectuntilauthorizedinwritingbytheStatefor
each classification. The classifications of work for projects are:
1. Preliminary engineering.
2. Right of way acquisition.
3. Project construction.
Intheeventthatrightofwayacquisition,oractualconstructionoftheroad,
forwhichpreliminaryengineeringisundertakenisnotstartedbytheclosingof
thetenthfiscalyearfollowingthefiscalyearinwhichtheagreementis
executed,theAgencywillrepaytotheStatethesumorsumsof federalfunds
paid to the Agency under the terms of this agreement (see Section IX).
TheAgencyagreesthatallstagesofconstructionnecessary toprovidethe
initiallyplannedcompletefacilitywithinthelimitsofthisprojectwillconform
toatleasttheminimumvaluessetbyapprovedstatewidedesignstandards
applicabletothisclassofhighways,eventhoughsuchadditionalworkis
financed without federal aid participation.
VI. Payment and Partial Reimbursement
Thetotalcostoftheproject,includingallreviewandengineeringcostsand
otherexpensesoftheState,istobepaidbytheAgencyandbytheFederal
Government.Federalfundingshallbeinaccordancewiththe Federal
TransportationAct,asamended,andOfficeofManagementandBudget
circularsA-102,A-87andA-133.TheStateshallnotbeultimatelyresponsible
foranyofthecostsoftheproject.TheAgencyshallbeultimatelyresponsible
forallcostsassociatedwiththeprojectwhicharenotreimbursedbythe
FederalGovernment.Nothinginthisagreementshallbeconstruedasa
promisebytheStateastotheamountornatureoffederalparticipationinthis
project.
TheAgencyshallbillthestateforfederalaidprojectcosts incurredin
conformitywithapplicablefederalandstatelaws.Theagencyshallminimize
thetimeelapsedbetweenreceiptoffederalaidfundsandsubsequentpayment
ofincurredcosts.ExpendituresbytheLocalAgencyformaintenance,general
administration,supervision,andotheroverheadshallnot beeligibleforfederal
participationunlessacurrentindirectcostplanhasbeenpreparedin
accordancewiththeregulationsoutlinedinthefederalOfficeofManagement
& Budget (OMB) circular A-87, and retained for audit.
TheStatewillpayforStateincurredcostsontheproject.Following
payment,theStateshallbilltheFederalGovernmentforreimbursementof
thosecostseligibleforfederalparticipationtotheextentthatsuchcostsare
attributableandproperlyallocabletothisproject.TheStateshallbillthe
AgencyforthatportionofStatecostswhichwerenotreimbursedbythe
Federal Government (see Section IX).
1. Project Construction Costs
Projectconstructionfinancingwillbeaccomplishedbyone ofthethree
methods as indicated in this agreement.
DOTForm 140-039 EF
Revised 05/09
Resolution No. 4727
Exhibit A
July 8, 2011
Page 2 of 4RES.B
DOTForm 140-039 EF
Revised 05/09 3
TheStateshallbilltheAgencyforallcostsincurredbytheStaterelativeto
theproject.TheStateshallalsobilltheAgencyforthefederalfundspaidbythe
StatetotheAgencyforprojectcostswhicharesubsequently determinedtobe
ineligible for federal participation (see Section IX).
MethodA –TheAgencywillplacewiththeState,within(20)daysafter the
executionoftheconstructioncontract,anadvanceintheamountofthe
Agency’sshareofthetotalconstructioncostbasedonthecontractaward.The
StatewillnotifytheAgencyoftheexactamounttobedepositedwiththeState.
TheStatewillpayallcostsincurredunderthecontractupon presentationof
progressbillingsfromthecontractor.Followingsuchpayments,theStatewill
submitabillingtotheFederalGovernmentforthefederalaidparticipation
shareofthecost.Whentheprojectissubstantiallycompletedandfinalactual
costsoftheprojectcanbedetermined,theStatewillpresenttheAgencywitha
finalbillingshowingtheamountduetheStateortheamountduetheAgency.
ThisbillingwillbeclearedbyeitherapaymentfromtheAgencytotheStateor
by a refund from the State to the Agency.
MethodB –TheAgency’sshareofthetotalconstructioncostasshownon
thefaceofthisagreementshallbewithheldfromitsmonthly fueltax
allotments.Thefaceofthisagreementestablishesthemonthsinwhichthe
withholdingshalltakeplaceandtheexactamounttobewithheldeachmonth.
TheextentofwithholdingwillbeconfirmedbyletterfromtheStateatthetime
ofcontractaward.Uponreceiptofprogressbillingsfromthecontractor,the
StatewillsubmitsuchbillingstotheFederalGovernmentforpaymentofits
participating portion of such billings.
MethodC –TheAgencymaysubmitvoucherstotheStateintheformat
prescribedbytheState,induplicate,notmorethanonceper monthforthose
costseligibleforFederalparticipationtotheextentthat suchcostsaredirectly
attributableandproperlyallocabletothisproject.ExpendituresbytheLocal
Agencyformaintenance,generaladministration,supervision,andother
overheadshallnotbeeligibleforFederalparticipationunlessclaimedundera
previously approved indirect cost plan.
TheStateshallreimbursetheAgencyfortheFederalshareof eligibleproject
costsuptotheamountshownonthefaceofthisagreement.Atthetimeof
audit,theAgencywillprovidedocumentationofallcostsincurredonthe
project.
TheAgency,ifservicesofaconsultantarerequired,shallberesponsiblefor
auditoftheconsultant’srecordstodetermineeligiblefederalaidcostsonthe
project.ThereportofsaidauditshallbeintheAgency’sfilesandmade
available to the State and the Federal Government.
VII. Audit of Federal Consultant Contracts
AnauditshallbeconductedbytheWSDOTInternalAuditOfficein
accordancewithgenerallyacceptedgovernmentalauditing standardsasissued
bytheUnitedStatesGeneralAccountingOfficebytheComptrollerGeneralof
theUnitedStates;WSDOTManualM27-50,ConsultantAuthorization,
Selection,andAgreementAdministration;memorandaofunderstanding
betweenWSDOTandFHWA;andOfficeofManagementandBudgetCircular
A-133.
Ifuponaudititisfoundthatoverpaymentorparticipationoffederalmoney
inineligibleitemsofcosthasoccurred,theAgencyshallreimbursetheStatefor
the amount of such overpayment or excess participation (see Section IX).
TheAgencyagreesthatifpaymentorarrangementforpayment ofanyofthe
State’sbillingrelativetotheproject(e.g.,Stateforcework,projectcancellation,
overpayment,costineligibleforfederalparticipation,etc.)isnotmadetothe
Statewithin45daysaftertheAgencyhasbeenbilled,theStateshalleffect
reimbursementofthetotalsumduefromtheregularmonthlyfueltax
allotmentstotheAgencyfromtheMotorVehicleFund.NoadditionalFederal
projectfundingwillbeapproveduntilfullpaymentisreceivedunlessotherwise
directed the Director of Highways and Local Programs.
IX. Payment of Billing
TheAgencywillnotpermitanychangestobemadeintheprovisionsfor
parkingregulationsandtrafficcontrolonthisprojectwithoutpriorapprovalof
theStateandFederalHighwayAdministration.TheAgencywillnotinstallor
permittobeinstalledanysigns,signals,ormarkingsnotin conformancewith
thestandardsapprovedbytheFederalHighwayAdministrationandMUTCD.
TheAgencywill,atitsownexpense,maintaintheimprovementcoveredby
this agreement.
X. Traffic Control, Signing, Marking, and Roadway
Maintenance
TheAgencyshallholdtheFederalGovernmentandtheStateharmlessfrom
andshallprocessanddefendatitsownexpenseallclaims,demands,orsuits,
whetheratlaworequitybroughtagainsttheAgency,State,orFederal
Government,arisingfromtheAgency’sexecution,performance,orfailureto
performanyoftheprovisionsofthisagreement,orofanyotheragreementor
contractconnectedwiththisagreement,orarisingbyreasonofthe
participationoftheStateorFederalGovernmentintheproject,PROVIDED,
nothinghereinshallrequiretheAgencytoreimbursetheStateortheFederal
Governmentfordamagesarisingoutofbodilyinjurytopersonsordamageto
propertycausedbyorresultingfromthesolenegligenceoftheFederal
Government or the State.
XI. Indemnity
No liability shall attach to the State or Federal Government except as
expressly provided herein.
TheAgencyherebyagreesthatitwillincorporateorcauseto be
incorporatedintoanycontractforconstructionwork,ormodificationthereof,
asdefinedintherulesandregulationsoftheSecretaryofLaborin41CFR
Chapter60,whichispaidforinwholeorinpartwithfundsobtainedfromthe
FederalGovernmentorborrowedonthecreditoftheFederalGovernment
pursuanttoagrant,contract,loan,insurance,orguaranteeorunderstanding
pursuanttoanyfederalprograminvolvingsuchgrant,contract,loan,insurance,
orguarantee,therequiredcontractprovisionsforFederal-AidContracts
(FHWA 1273), located in Chapter 44 of the Local Agency Guidelines.
XII. Nondiscrimination Provision
TheAgencyfurtheragreesthatitwillbeboundbytheaboveequal
opportunityclausewithrespecttoitsownemploymentpracticeswhenit
participatesinfederallyassistedconstructionwork:Provided,thatifthe
applicantsoparticipatingisaStateorLocalGovernment,theaboveequal
opportunityclauseisnotapplicabletoanyagency,instrumentality,or
subdivisionofsuchgovernmentwhichdoesnotparticipateinworkonorunder
the contract.
The Agency also agrees:
(1)ToassistandcooperateactivelywiththeStateinobtainingthe
complianceofcontractorsandsubcontractorswiththeequalopportunityclause
and rules, regulations, and relevant orders of the Secretary of Labor.
(2)TofurnishtheStatesuchinformationasitmayrequireforthe
supervisionofsuchcomplianceandthatitwillotherwiseassisttheStateinthe
discharge of its primary responsibility for securing compliance.
(3)Torefrainfromenteringintoanycontractorcontractmodification
subjecttoExecutiveOrder11246ofSeptember24,1965,with acontractor
debarredfrom,orwhohasnotdemonstratedeligibilityfor,government
contractsandfederallyassistedconstructioncontractspursuanttothe
Executive Order.
(4)Tocarryoutsuchsanctionsandpenaltiesforviolationoftheequal
opportunityclauseasmaybeimposeduponcontractorsandsubcontractorsby
theState,FederalHighwayAdministration,ortheSecretaryofLaborpursuant
to Part II, subpart D of the Executive Order.
TheAgency,asasubrecipientoffederalfunds,shalladhere tothefederal
OfficeofManagementandBudget(OMB)CircularA-133aswell asall
applicablefederalandstatestatutesandregulations.Asubrecipientwho
expends$500,000ormoreinfederalawardsfromallsourcesduringagiven
fiscalyearshallhaveasingleorprogram-specificauditperformedforthatyear
inaccordancewiththeprovisionsofOMBCircularA-133.Uponconclusionof
theA-133audit,theAgencyshallberesponsibleforensuringthatacopyofthe
report is transmitted promptly to the State.
VIII. Single Audit Act
TheAgencyshallnotdiscriminateonthebasisofrace,color,national
origin,orsexintheawardandperformanceofanyUSDOT-assistedcontract
and/oragreementorintheadministrationofitsDBEprogram orthe
requirementsof49CFRPart26.TheAgencyshalltakeallnecessaryand
reasonablestepsunder49CFRPart26toensurenondiscriminationinthe
awardandadministrationofUSDOT-assistedcontractsandagreements.The
WSDOT’sDBEprogram,asrequiredby49CFRPart26andasapprovedby
USDOT,isincorporatedbyreferenceinthisagreement.Implementationof
thisprogramisalegalobligationandfailuretocarryoutitstermsshallbe
treatedasaviolationofthisagreement.Uponnotification totheAgencyofits
failuretocarryoutitsapprovedprogram,theDepartmentmayimpose
sanctionsasprovidedforunderPart26andmay,inappropriatecases,referthe
matterforenforcementunder18U.S.C.1001and/ortheProgramFraudCivil
Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
Resolution No. 4727
Exhibit A
July 8, 2011
Page 3 of 4
RES.B
4
TheSecretaryoftheWashingtonStateDepartmentofTransportationmay
terminate the contract in whole, or from time to time in part, whenever:
XIV. Termination for Public Convenience
(1)Therequisitefederalfundingbecomesunavailablethroughfailureof
appropriation or otherwise.
(2)Thecontractorispreventedfromproceedingwiththeworkasadirect
resultofanExecutiveOrderofthePresidentwithrespectto theprosecutionof
warorintheinterestofnationaldefense,oranExecutiveOrderofthePresident
or Governor of the State with respect to the preservation of energy resources.
(3)Thecontractorispreventedfromproceedingwiththeworkbyreasonof
apreliminary,special,orpermanentrestrainingorderofa courtofcompetent
jurisdictionwheretheissuanceofsuchorderisprimarilycausedbytheactsor
omissions of persons or agencies other than the contractor.
(4) The Secretary determines that such termination is in the best interests of
the State.
Fortheconvenienceofthepartiestothiscontract,itisagreedthatany
claimsand/orcausesofactionwhichtheLocalAgencyhasagainsttheStateof
Washington,growingoutofthiscontractortheprojectwith whichitis
concerned, shall be brought only in the Superior Court for Thurston County.
XV. Venue for Claims and/or Causes of Action
Theapprovingauthoritycertifies,tothebestofhisorherknowledgeand
belief, that:
XVI. Certification Regarding the Restrictions of the Use
of Federal Funds for Lobbying
(1)Nofederalappropriatedfundshavebeenpaidorwillbepaid,byoron
behalfoftheundersigned,toanypersonforinfluencingorattemptingto
influenceanofficeroremployeeofanyfederalagency,amemberofCongress,
anofficeroremployeeofCongress,oranemployeeofamember ofCongress
inconnectionwiththeawardingofanyfederalcontract,the makingofany
federalgrant,themakingofanyfederalloan,theenteringintoofany
cooperativeagreement,andtheextension,continuation,renewal,amendment,
or modification of any federal contract, grant, loan, or cooperative agreement.
(2)Ifanyfundsotherthanfederalappropriatedfundshavebeenpaidorwill
bepaidtoanypersonforinfluencingorattemptingtoinfluenceanofficeror
employeeofanyfederalagency,amemberofCongress,anofficeroremployee
ofCongress,oranemployeeofamemberofCongressinconnectionwiththis
federalcontract,grant,loan,orcooperativeagreement,theundersignedshall
completeandsubmittheStandardForm-LLL,“DisclosureFormtoReport
Lobbying,” in accordance with its instructions.
(3)Theundersignedshallrequirethatthelanguageofthiscertificationbe
includedintheawarddocumentsforallsubawardsatalltiers(including
subgrants,andcontractsandsubcontractsundergrants,subgrants,loans,and
cooperativeagreements)whichexceed$100,000,andthatallsuch
subrecipients shall certify and disclose accordingly.
Thiscertificationisamaterialrepresentationoffactuponwhichreliance
wasplacedwhenthistransactionwasmadeorenteredinto.Submissionofthis
certificationasaprerequisiteformakingorenteringinto thistransaction
imposedbySection1352,Title31,U.S.Code.Anypersonwhofailstofilethe
requiredcertificationshallbesubjecttoacivilpenaltyofnotlessthan$10,000
and not more than $100,000 for each such failure.
Additional Provisions
Inaddition,theAgencyagreesthatifitfailsorrefusestocomplywiththese
undertakings, the State may take any or all of the following actions:
(a) Cancel, terminate, or suspend this agreement in whole or in part;
(b)RefrainfromextendinganyfurtherassistancetotheAgencyunderthe
programwithrespecttowhichthefailureorrefusaloccurreduntilsatisfactory
assurance of future compliance has been received from the Agency; and
(c) Refer the case to the Department of Justice for appropriate legal
proceedings.
TheAgencyherebyagreesthattheliquidateddamagesprovisionsof23CFR
Part635,Subpart127,assupplemented,relativetotheamountofFederal
participationintheprojectcost,shallbeapplicableintheeventthecontractor
failstocompletethecontractwithinthecontracttime.Failuretoinclude
liquidateddamagesprovisionwillnotrelievetheAgencyfromreductionof
federal participation in accordance with this paragraph.
XIII. Liquidated Damages
DOTForm 140-039 EF
Revised 05/09
Resolution No. 4727
Exhibit A
July 8, 2011
Page 4 of 4RES.B
RES.B
AGENDA BILL APPROVAL FORM
Agenda Subject:
Capital Project Status Report
Date:
July 12, 2011
Department:
Public Works
Attachments:
Capital Project Status Report
Budget Impact:
$0
Administrative Recommendation:
Background Summary:
See attached report.
Reviewed by Council Committees:
Public Works
Councilmember:Wagner Staff:Gaub
Meeting Date:July 18, 2011 Item Number:DI.C
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21
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22
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23
CP
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24
CP
1
1
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25
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26
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18
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