HomeMy WebLinkAboutGRA2019-011 - Original - Grade Crossing Protective Fund Disvursement Request - 03/18/2019 �..%K T
Records Management Document
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submissi"':
to the City Clerk's Office. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253-856-!:
Vendor Name: Utilities and Transportation Commission
Vendor Number (JDE):
Contract Number (City Clerk): _ (IM7-M- 011
Category: -Grant Related Agreement (Non-Real Property)
Sub-Category (if applicable): None
Project Name: Pedestrian Safety Fencing (BNSF)
Contract Execution Date: 3/18/19 Termination Date: 6/15/19
Contract Manager: Dan Hansen Department: PW. Engineering
Contract Amount: $107000
Budgeted: 7 Grant?
Y
Part of NEW Budget: E� Local: 1-1 State: Federal:
Related to a New Position:
Basis for Selection of Contractor? Other
Approval Authority: IV/] Director 1:1 Mayor F-1 City Council
Other Details: Construct 250 feet of chain link fencing east of the BNSF Railway,
approximately 0.33 miles north of East James
I
Service Date: December 13, 2018
BEFORE THE WASHINGTON
UTILITIES AND TRANSPORTATION COMMISSION
In the Matter of the Application of DOCKET TR-180718
CITY OF KENT, ORDER 01
Applicant, ORDER GRANTING REQUEST FOR
DISBURSEMENT FROM THE GRADE
Requesting Disbursement from the CROSSING PROTECTIVE FUND
Grade Crossing Protective Fund
BACKGROUND
1 On July 27, 2017, the Washington Utilities and Transportation Commission
(Commission) sent to various interested parties a"Notice of Opportunity to Apply for
Grant Monies" from the Grade Crossing Protective Fund(GCPF).
2 On August 15, 2018,the City of Kent(City or the Applicant) filed with the Commission
an application requesting a disbursement of$10,395 from the GCPF to pay for a project
related to installing safety fencing to prevent pedestrian trespass over railroad tracks.
3 The City seeks to install a total of approximately 250 lineal feet of six-foot, chain-link
fencing and a gate on private property, approximately one third of a mile north of the
East James Street crossing (USDOT 085629K), as described in the City's application. A
well-worn foot path in this area indicates unauthorized pedestrian trespass over the BNSF
Railway Company's tracks. The proposed fencing will restrict access to the tracks and
channelize pedestrians to the fully signalized East James Street crossing,reducing the
potential for accidents. The property owners will be responsible for long-term
maintenance of the fencing.
4 A site visit by Commission Staff confirmed that the safety problem described by City
exists and that the proposed fencing will deter pedestrian trespass onto the railroad right-
of-way and increase public safety.
S The City seeks $10,395 to pay for the cost of the fencing. Currently there is $10,000 in
funds available to pay for a portion of the project. The City is responsible for costs
exceeding the grant amount.
6 The City must also meet the following conditions for administering the GCPF grant.
DOCKET TR-180718 PAGE 2
ORDER 01
• Expenditure from the Grade Crossing Protective Fund must not exceed$10,000.
• The work for which the Grade Crossing Protective Fund disbursement is approved
must conform to the project description specified in the application.
• The City must sign and return the attached project agreement.
• Payment will be made upon presentation of claim for reimbursement and verification
by Commission Staff that the work has been satisfactorily completed.
• The project must be completed and the associated request for reimbursement from
the Grade Crossing Protective Fund must be filed with the Commission no later than
June 15, 2019.
FINDINGS AND CONCLUSIONS
7 (1) The Commission is an agency of the State of Washington having authority to
approve and administer disbursements from the Grade Crossing Protective Fund.
RCW 81.53.271; RCW 81.53.281.
8 (2) The project for which City seeks disbursement from the Grade Crossing
Protective Fund is eligible for funding consideration under Commission rules and
complies with the requirements of RCW 81.53.271, RCW 81.53.281, and WAC
480-62.
9 (3) Commission Staff investigated the request based on the review criteria specified
in the Commission's rules and recommended that it be granted, subject to
specified conditions for administering the grant.
• Expenditure from the Grade Crossing Protective Fund must not exceed
$10,000.
• The work for which the Grade Crossing Protective Fund disbursement was
approved must conform to the project description specified in the application.
• The City must sign and return the attached project agreement.
DOCKET TR-180718 PAGE 3
ORDER 01
• Payment will be made upon presentation of claim for reimbursement and
verification by Commission Staff that the work has been satisfactorily
completed.
• The project must be completed and the associated request for reimbursement
from the Grade Crossing Protective Fund must be filed with the Commission
no later than June 15, 2019.
10 (4) This matter came before the Commission at its regularly scheduled meeting on
December 13, 2018.
11 (5) After reviewing the City's application filed on August 15, 2018, and giving due
consideration to all relevant matters and for good cause shown,the Commission
grants the request for disbursement of funds.
ORDER
THE COMMISSION ORDERS:
12 The City of Kent's application for disbursement from the Grade Crossing Protective Fund
for fencing in Kent, Washington, near the East James Street crossing, is granted, subject
to the following conditions:
(1) Expenditure from the Grade Crossing Protective Fund must not exceed$10,000.
(2) The work for which the Grade Crossing Protective Fund disbursement was
approved must conform to the project description specified in the application.
(3) The City of Kent must sign and return the attached project agreement.
(4) Payment will be made upon presentation of claim for reimbursement and
verification by Commission Staff that the work has been satisfactorily completed.
(5) The project must be completed and the associated request for reimbursement from
the Grade Crossing Protective Fund must be filed with the Commission no later
than June 15, 2019.
DOCKET TR-180718 PAGE 4
ORDER 01
The Commissioners,having determined this Order to be consistent with the public
interest, directed the Secretary to enter this Order.
DATED at Olympia, Washington, and effective December 13,2018.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
MARK L. SON, Executive Director and Secretary
PROJECT AGREEMENT
GRADE CROSSING PROTECTIVE FUND
Docket No.: TR-180718
Commission Approval Date: December 13, 2018
A. PARTIES TO THE AGREEMENT
This project grant agreement(agreement)is entered into between the Washington
Utilities and Transportation Commission(UTC),P.O.Box 47250, Olympia,
Washington 98504-7250,and the City of Kent, 400 W. Gowe, Kent, WA, 98032, and
shall be binding upon the agents and all persons acting by or through the parties.
B. PURPOSE OF THE AGREEMENT
The agreement pertains to a grant administered by the UTC for the benefit of the
grantee pursuant to UTC order entered in Docket No. TR-180718. This agreement
memorializes any conditions of the grant imposed by the UTC in such order.As
stated in the General Provisions, Section 17,the UTC order pertaining to the project
takes precedence over this agreement in the event of conflict.
C. DESCRIPTION OF PROJECT
TR-180718 involves the installation of approximately 250 lineal feet of six-foot,
chain link fencing approximately one third of a mile north of the East James Street
crossing. The crossing is identified as USDOT 085629K.Additional information
about the project can be found in the grantee's application.
D. PERIOD OF PERFORMANCE
The project reimbursement period shall begin on December 13,2018, and end on
June 15, 2019. No expenditure made before or after this period is eligible for
reimbursement unless incorporated by written amendment into this agreement.
E. PROJECT FUNDING
Total grant funding awarded by the UTC for this project shall not exceed$10,000.
The total approximate cost of the project is $10,395. The grantee shall be responsible
for all additional costs.
F. RIGHTS AND OBLIGATIONS
All rights and obligations of the parties are subject to this agreement and its
attachments, including the grantee's application,the UTC's order pertaining to the
project, and the general provisions, all of which are attached and/or incorporated by
reference into this agreement.
Except as provided,no alteration of any of the terms or conditions of this agreement
will be effective unless provided in writing. All alterations must be signed by both
parties.
Revised Apr.30,2018 1
The grantee has read, fully understands, and agrees to be bound by all terms and
conditions in the UTC's order pertaining to the project and in this agreement.
G. COMPLIANCE WITH APPLICABLE STATUTES RULES AND UTC POLICIES
This agreement is governed by, and the grantee shall comply with, all applicable state
and federal laws and regulations, including RCW 81.53, WAC 480-62, and the
UTC's order pertaining to the project,which are incorporated by this reference as if
fully set forth.
H. PROJECT GRANT AGREEMENT REPRESENTATIVES
All written communications under this agreement will be addressed and delivered to:
City of Kent Utilities and Transportation Commission
Kelly Peterson Kathy Hunter
400 W. Gowe 1300 S. Evergreen Park Drive SW
Kent, WA 98032 P.O. Box 47250
Olympia,WA 98504-7250
These addresses shall be effective until receipt by one party from the other of a
written notice of any change.
1. ENTIRE AGREEMENT
This agreement, along with all attachments, constitutes the entire agreement of the
articles.No other understandings, oral or otherwise,regarding this agreement shall
exist or bind any of the parties.
J. EFFECTIVE DATE
This agreement shall be effective upon signing by all parties.
State of Washington
Utilities and Tr nspo tion ission
By: i'� Date: la /j /g
(Executiv&Vector and Secretary)
City of Kent
By: Date:
Title:
Revised Apr.30,2018 2
The grantee has read, fully understands, and agrees to be bound by all terms and
conditions in the UTC's order pertaining to the project and in this agreement.
G. COMPLIANCE WITH APPLICABLE STATUTES, RULES, AND UTC POLICIES
This agreement is governed by, and the grantee shall comply with, all applicable state
and federal laws and regulations, including RCW 81.53, WAC 480-62,and the
UTC's order pertaining to the project, which are incorporated by this reference as if
fully set forth.
H. PROJECT GRANT AGREEMENT REPRESENTATIVES
All written communications under this agreement will be addressed and delivered to:
City of Kent Utilities and Transportation Commission
Kelly Peterson Kathy Hunter
400 W. Gowe 1300 S. Evergreen Park Drive SW
Kent, WA 98032 P.O. Box 47250
Olympia, WA 98504-7250
These addresses shall be effective until receipt by one party from the other of a
written notice of any change.
I. ENTIRE AGREEMENT
This agreement, along with all attachments, constitutes the entire agreement of the
articles. No other understandings, oral or otherwise,regarding this agreement shall
exist or bind any of the parties.
J. EFFECTIVE DATE
This agreement shall be effective upon signing by all parties.
State of Washington
Utilities and Transportation Commission
By: Date:
(Executive Director and Secretary)
City oJent
B Date: 31101'a
Title: -P�� '&�'
Revised Apr.30,2018 2
Hansen, Daniel
From: Hansen, Daniel
Sent: Monday, March 25, 2019 3:29 PM
To: 'Young, Betty (UTC)'
Subject: RE: Copies of signed orders and project agreements
Thank you. I assume that will be fine with us as well then.
Dan Hansen, P.E., Traffic Engineer III
Phone 253-856-5585 1 Cell 206-549-8901
dhansen(cbKentWA.gov
From: Young, Betty (UTC) [mailto:betty.young(abutc.wa.gov]
Sent: Monday, March 25, 2019 3:28 PM
To: Hansen, Daniel
Subject: RE: Copies of signed orders and project agreements
EXTERNAL EMAIL
The separate signature pages work fine for us.
Betty
From: Hansen, Daniel [mailto:DHansen@kentwa.gov]
Sent: Monday, March 25, 2019 3:26 PM
To: Young, Betty (UTC) <betty.young@utc.wa.gov>
Subject: RE: Copies of signed orders and project agreements
The copies we received from the UTC records center on December 13, 2018 were unsigned. I
was unaware that those documents had already been signed. Do you need the signatures of
Kent's Public Works Director on the same page as the UTC director or will the two separate
signature pages for each agreement suffice?
Dan Hansen, P.E., Traffic Engineer III
Phone 253-856-5585 1 Cell 206-549-8901
dhansen(alKentWA.gov
From: Young, Betty (UTC) [mailto:bettyyoung(&utc.wa.gov]
Sent: Monday, March 25, 2019 3:07 PM
To: Hansen, Daniel
Subject: Copies of signed orders and project agreements
EXTERNAL EMAIL
Hi Dan—I received your hard copies of the project agreements for the two GCPF grants, and your request for executed
copies of those agreements. Our Executive Director signed the everything the day the grants were approved (12/13/18),
so our Records Center should have sent you signed copies of the orders and project agreements that day. If not, please
find them attached.
i
Betty Young
Rail Safety Program Advisor
(360) 664-1202
Utilities and Transportation Commission (UTC)
Respect. Professionalism. Integrity. Accountability.
www.utc.wa.gov
General Provisions
Of the Project Agreement
Heading and Definitions
Section 1. Headings and Definitions........................................................................2
Performance and Requirements (General Responsibilities)
Section 2. Performance by Grantee ....................................................................:....2
Section3. Assignment .............................................................................................2
Section 4. Responsibility for Project .......................................................................3
Section 5. Indemnification.......................................................................................3
Section 6. Independent Capacity of the Grantee......................................................3
Section 7. Conflict of Interest..................................................................................3
Section 8. Construction, Operation,Use and Maintenance.....................................4
Section 9. Acknowledgment....................................................................................4
Compliance with Laws, Records, and Inspections
Section 10. Compliance with Applicable Law .......................................................4
Section 11. Records Maintenance............................................................................5
Section 12. Right of Inspection................................................................................5
Funding, Reimbursements
Section 13. Project Funding.....................................................................................5
Section 14. Project Reimbursements .......................................................................6
Section 15. Recovery of Payments..........................................................................6
Section 16. Covenant Against Contingent Fees.......................................................6
Remedies and Disputes
Section 17. Order of Precedence..............................................................................6
Section18. Amendments.........................................................................................7
Section 19. Limitation of Authority.........................................................................7
Section 20. Waiver of Default.................................................................................7
Section 21. Application Representations—Misrepresentations or Inaccuracy or
Breach......................................................................................................................7
Section 22. Termination and Other Remedies ........................................................7
Section 23. Termination for Convenience...............................................................8
Section 24. Dispute Resolution................................................................................8
Section 25. Attorneys' Fees.....................................................................................8
Section 26. Governing Law/Venue..........................................................................8
Section 27. Severability...........................................................................................9
Grade Crossing Protective Fund Grant—General Provisions Page 1 of 9
SECTION 1. HEADINGS AND DEFINITIONS
A. Headings used in this agreement are for reference purposes only and shall not be
considered a substantive part of this agreement.
B. Definitions. As used throughout this agreement,the following terms shall have the
meaning set forth below:
Agreement-The accord accepted by all parties to the present transaction;the
agreement, any supplemental agreement,and any intergovernmental agreement
between the UTC and a grantee.
Applicant-Any agency or organization that meets the qualifying standards, including
deadlines, for submission of an application soliciting a grant of funds from the UTC.
Application - The forms and support documents approved by the UTC or its
Secretary for use by applicants in soliciting project funds administered by UTC.
Contractor- One not in the employment of the grantee who is performing all or part
of the eligible activities for this projects under a separate agreement with the grantee.
The term "Contractor" and "Contractors" means Contractor(s) in any tier.
Secretary-The UTC Secretary or the Secretary's designee.
Grantee-The applicant who has been awarded a grant of funds and is bound by this
executed agreement; includes its officers, employees and agents.
Milestone—Important date(s)tracked in the agreement for monitoring the project
status.
Period of Performance-The time period specified in the agreement, under Section
D,Period of Performance.
Project-The undertaking that is the subject of this agreement and that is, or may be,
funded in whole or in part with funds administered by the UTC.
UTC- Washington Utilities and Transportation Commission created under Title 80
RC W.
SECTION 2. PERFORMANCE BY GRANTEE
The grantee shall undertake the project as described in this agreement,the UTC's order
pertaining to the project, and the grantee's application, and in accordance with the
grantee's proposed goals and objectives described in the application or documents
submitted with the application,all as finally approved by the UTC. All submitted
documents are incorporated by this reference as if fully set forth herein. The Order of
Precedence is covered in Section 17.
Timely completion of the project is important. Failure to do so, as set out in this
agreement, is a material breach of the agreement.
SECTION 3.ASSIGNMENT
Neither this agreement,nor any claim arising under this agreement,shall be transferred or
assigned by the grantee without prior written consent of the UTC.
Grade Crossing Protective Fund Grant—General Provisions Page 2 of 9
O
SECTION 4. RESPONSIBILITY FOR PROJECT
While the UTC undertakes to assist the grantee with the project by providing a grant
pursuant to this agreement,the project itself remains the sole responsibility of the
grantee. The UTC undertakes no responsibilities to the grantee, or to any third party,
other than as is expressly set out in this agreement. The responsibility for the
implementation of the project,as those phases are applicable to this project, is solely that
of the grantee, as is responsibility for any claim or suit of any nature by any third party
related in any way to the project.
SECTION 5.INDEMNIFICATION
To the fullest extent permitted by the law,the grantee expressly agrees to and shall
indemnify, defend and hold harmless the state and its agencies, officials, agents and
employees from and against all claims,actions, costs, damages, or expenses of any nature
arising out of or incident to the grantee's or any contractor's performance or failure to
perform the agreement. Grantee's obligation to indemnify, defend and hold harmless also
includes any claim by grantee's agents,employees,representatives or any contractor or
its employees. Grantee's obligation to defend includes payment of any costs or attorneys'
fees. Grantee's obligation shall not include such claims that may be caused by the sole
negligence of the state and its agencies,officials, agents, and employees. If the claims or
damages are caused by or result from the concurrent negligence of(a)the state, its agents
or employees and(b)the grantee, its contractors, agents, or employees,this indemnity
provision shall be valid and enforceable only to the extent of the negligence of the
Grantee or its contractors, agents,or employees. The grantee expressly agrees to waive
his/her immunity under Title 51 RCW to the extent required to indemnify,defend,and
hold harmless the state and its agencies,officials,agents or employees.
SECTION 6. INDEPENDENT CAPACITY OF THE GRANTEE
The grantee and its employees or agents performing under this agreement are not
employees or agents of the UTC. The grantee will not hold itself out as nor claim to be an
officer or employee of UTC or of the state of Washington by reason hereof,nor will the
grantee make any claim of right,privilege or benefit which would accrue to an employee
under Chapters 41.06 RCW.
The grantee is responsible for withholding and/or paying employment taxes, insurance, or
deductions of any kind required by federal, state, and/or local laws.
SECTION 7. CONFLICT OF INTEREST
Notwithstanding any determination by the Executive Ethics Board or other tribunal,the
UTC may, in its sole discretion,by written notice to the grantee, terminate this agreement
if it is found after due notice and examination by UTC that there is a violation of the
Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the
grantee in the procurement of, or performance under this agreement. In the event this
agreement is terminated as provided above,UTC shall be entitled to pursue the same
remedies against the grantee as it could pursue in the event of a breach of the agreement
by the grantee. The rights and remedies of UTC provided for in this clause shall not be
exclusive and are in addition to any other rights and remedies provided by law. The
Grade Crossing Protective Fund Grant—General Provisions Page 3 of 9
existence of facts upon which the UTC makes any determination under this clause shall
be an issue and may be reviewed as provided in the"Dispute Resolution"clause of this
agreement.
SECTION 8. CONSTRUCTION,OPERATION,USE AND MAINTENANCE
Grantee must ensure that properties or facilities assisted with UTC funds, are built,
operated,used, and maintained:
A. According to applicable federal, state, and local laws and regulations, including
public health standards and building codes.
B. In a reasonably safe condition for the project's intended use.
C. Throughout their estimated life so as to prevent undue deterioration.
D. In compliance with all federal and state nondiscrimination laws,regulations and
policies.
SECTION 9.ACKNOWLEDGMENT
The grantee shall include language that acknowledges the funding contribution of the
program to this project in any publication developed or modified for, or referring to,the
project.
SECTION 10. COMPLIANCE WITH APPLICABLE LAW
The grantee will implement the agreement in accordance with applicable federal, state,
and local laws and regulations.
The grantee shall comply with,and UTC is not responsible for determining compliance
with, any and all applicable federal, state, and local laws,regulations, and/or policies,
including,but not limited to, State Environmental Policy Act;Industrial Insurance
Coverage;Architectural Barriers Act; Chapter 39.12 RCW—Prevailing Wages on Public
Works;permits(shoreline, Hydraulics Project Approval, demolition); land use
regulations(comprehensive areas ordinances, Growth Management Act); federal and
state safety and health regulations(Occupational Safety and Health
Administration/Washington Industrial Safety and Health Act); and Buy American Act.
The grantee shall comply with all applicable federal, state, and local nondiscrimination
laws and/or policies, including but not limited to,the Americans with Disabilities Act;
Civil Rights Act; and the Age Discrimination Act. In the event of the grantee's
noncompliance or refusal to comply with any nondiscrimination law or policy,the UTC
may rescind,cancel, or terminate the agreement in whole or in part, and the grantee may
be declared ineligible for further grant awards from UTC. The grantee is responsible for
any and all costs or liability arising from the grantee's failure to so comply with
applicable law.
No part of any funds provided under this grant shall be used, other than for normal and
recognized executive-legislative relationships, for publicity or propaganda purposes,or
for the preparation, distribution, or use of any kit,pamphlet,booklet,publication, radio,
Grade Crossing Protective Fund Grant—General Provisions Page 4 of 9
television,or video presentation designed to support or defeat legislation pending before
the U.S. Congress or any state legislature.
No part of any funds provided under this grant shall be used to pay the salary or expenses
of any grantee, or agent acting for such grantee,related to any activity designed to
influence legislation or appropriations pending before the U.S. Congress or any state
legislature.
SECTION 11. RECORDS MAINTENANCE
The grantee shall maintain books,records, documents, data, and other evidence relating
to this agreement and performance of the services described herein, including but not
limited to accounting procedures and practices that sufficiently and properly reflect all
direct and indirect costs of any nature expended in the performance of this agreement.
Grantee shall retain such records for a period of six years following the date of final
payment. At no additional cost,these records, including materials generated under the
agreement, shall be subject at all reasonable times to inspection,review or audit by UTC,
personnel duly authorized by UTC,the Office of the State Auditor,and federal and state
officials so authorized by law,regulation or agreement.
If any litigation, claim, or audit is started before the expiration of the six(6)year period,
the records shall be retained until all litigation,claims, or audit findings involving the
records have been resolved.
SECTION 12.RIGHT OF INSPECTION
The grantee shall provide a right of access to its facilities to UTC or any of its officers, or
to any other authorized agent or official of the state of Washington or the federal
government, at all reasonable times,to allow the UTC to monitor and evaluate
performance, compliance, and/or quality assurance under this agreement.
SECTION 13.PROJECT FUNDING
A. Additional Amounts. UTC shall not be obligated to pay any amount beyond the
dollar amount as identified in this agreement,unless an additional amount has
been approved in advance by UTC or the Secretary and incorporated by written
amendment into this agreement.
B. Before the agreement.No expenditure made, or obligation incurred,by the
grantee before the effective date of this agreement shall be eligible for grant
funds, in whole or in part,unless specifically provided for by UTC policy. The
dollar amounts identified in this agreement may be reduced as necessary to
exclude any such expenditure from reimbursement.
C. After the Period of Performance.No expenditure made, or obligation incurred,
following the period,of performance shall be eligible,in whole or in part, for grant
funds hereunder. In addition to any remedy the UTC may have under this
agreement,the amounts identified in this agreement shall be reduced to exclude
any such expenditure from participation.
Grade Crossing Protective Fund Grant—General Provisions Page 5 of 9
SECTION 14. PROJECT REIMBURSEMENTS
A. Compliance and Payment. The obligation of UTC to pay any amount(s)under this
agreement is expressly conditioned upon strict compliance with the terms of this
agreement by the grantee.
B. The grantee will submit an invoice for full payment when the project is completed.
UTC Staff will inspect the project and process payment. A project is considered
"complete" when:
1. all approved or required activities outlined in the agreement are complete;
2. a grantee's final request for reimbursement is submitted to the UTC;
3. the completed project has been approved by UTC;
4. final amendments have been processed; and
5. fiscal transactions are complete.
C. Advance payments are not allowable.
SECTION 15. RECOVERY OF PAYMENTS
In the event that the grantee fails to expend funds under this agreement in accordance
with state and federal laws, and/or the provisions of the agreement,UTC reserves the
right to recover grant award funds in the amount equivalent to the extent of
noncompliance in addition to any other remedies available at law or in equity.
The grantee shall reimburse UTC for any overpayment or erroneous payments made
under the agreement. Repayment by the grantee of such funds under this recovery
provision shall occur within 30 days of demand by UTC. Interest shall accrue at the rate
of twelve percent(12%)per annum from the time that payment becomes due and owing.
SECTION 16. COVENANT AGAINST CONTINGENT FEES
The grantee warrants that no person or selling agent has been employed or retained to
solicit or secure this agreement upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, excepting bona fide employees or bona fide
established agents maintained by the grantee for the purpose of securing business. UTC
shall have the right, in the event of breach of this clause by the grantee, to annul this
agreement without liability or, in its discretion, to deduct from the agreement price or
consideration or recover by other means the full amount of such commission,percentage,
brokerage or contingent fee.
SECTION 17. ORDER OF PRECEDENCE
This agreement is entered into, pursuant to, and under the authority granted by applicable
state law. The provisions of the agreement shall be construed to conform to that law. In
the event of an inconsistency in the terms of this agreement, or between its terms and any
applicable statute,rule, or policy or procedure, the inconsistency shall be resolved by
giving precedence in the following order:
A. Applicable statutes, orders, or policy and interpretive statements;
B. Project agreement including attachments;
4
Grade Crossing Protective Fund Grant—General Provisions Page 6 of 9
" � b
C. Additional provisions or modifications of General Provisions;
D. General Provisions.
SECTION 18. AMENDMENTS
This agreement may be amended by mutual agreement of the parties. Such amendments
shall not be binding unless they are in writing and signed by personnel authorized to bind
each of the parties.
SECTION 19. LIMITATION OF AUTHORITY
Only UTC or UTC's delegate by writing(delegation to be made prior to action) shall
have the express,implied, or apparent authority to alter,amend, modify, or waive any
clause or condition of this agreement.Furthermore,any alteration, amendment,
modification, or waiver of any clause or condition of this agreement is not effective or
binding unless made in writing and signed by the UTC.
SECTION 20.WAIVER OF DEFAULT
Waiver of any default shall not be deemed to be a waiver of any subsequent default.
Waiver of breach of any provision of the agreement shall not be deemed to be a waiver of
any other or subsequent breach and shall not be construed to be a modification of the
terms of the agreement unless stated to be such in writing, signed by the Executive
Secretary, or the Executive Secretary's designee, and attached to the original agreement.
SECTION 21. APPLICATION REPRESENTATIONS--
MISREPRESENTATIONS OR INACCURACY OR BREACH
The UTC relies upon the grantee's application in making its determinations as to
eligibility for, selection for,and scope of,funding grants. Any misrepresentation, error, or
inaccuracy in any part of the application may be deemed a breach of this agreement.
SECTION,22. TERMINATION AND OTHER REMEDIES
UTC may require strict compliance by the grantee with the terms of this agreement
including,but not limited to,the requirements of the applicable statutes,rules,and UTC
policies that are incorporated into this agreement, and with the representations of the
grantee in its application for a grant as finally approved by UTC.
UTC or the Secretary,may suspend, or may terminate,the obligation to provide funding
to the grantee under this agreement:
A. In the event of any breach by the grantee of any of the grantee's obligations under
this agreement; or
B. If the grantee fails to make progress satisfactory to UTC toward completion of the
project by the completion date set out in this agreement.
UTC may enforce this agreement by the remedy of specific performance,which usually
will mean completion of the Project as described in this agreement. However,the remedy
of specific performance shall not be the sole or exclusive remedy available to UTC.No
remedy available to UTC shall be deemed exclusive. UTC may elect to exercise any, any
Grade Crossing Protective Fund Grant—General Provisions Page 7 of 9
combination, or all of the remedies available to it under this agreement, or under any
provision of law, common law, or equity.
SECTION 23. TERMINATION FOR CONVENIENCE
Except as otherwise provided in this agreement, UTC may, by ten(10) days written
notice, beginning on the second day after the mailing, terminate this Agreement, in whole
or in part. If this agreement is so terminated, UTC shall be liable only for payment
required under the terms of this agreement for project expenses incurred prior to the
effective date of termination.
SECTION 24.DISPUTE RESOLUTION
Except as may otherwise be provided in this agreement,when a dispute arises between
the grantee and the Staff of the UTC,which cannot be resolved, either party may request
a hearing according to the process set out in this section. Either party's request for a
hearing must be in writing and clearly state:
A. The disputed issues;
B. The relative positions of the parties;
C. The grantee's name, address, project title, and the assigned project number.
A request for a hearing under this section by either the UTC Staff or the grantee shall be
delivered or mailed to the other party and to the Secretary of the UTC. The request shall
be delivered or mailed within thirty(30) days of the date the requesting party has
received notice of the action or position of the other party which it wishes to dispute.
The UTC shall treat such a request,when made by a grantee, as an application for an
adjudicative proceeding under RCW 34.05.419.
SECTION 25. ATTORNEYS' FEES
If either party brings litigation to enforce any term or condition of this agreement, or as a
result of this agreement,the prevailing party shall be awarded its reasonable attorneys'
fees together with necessary fees, expenses, and costs incurred for such litigation at both
trial and appellate levels, as well as in obtaining execution of judgment. The
reasonableness of such costs and attorneys' fees shall be determined by the court and not
a jury.
SECTION 26. GOVERNING LAWIVENUE
This agreement shall be construed and interpreted in accordance with the laws of the state
of Washington. In the event of a lawsuit involving this agreement, venue shall be proper
only in Thurston County Superior Court. The grantee, by execution of this agreement
acknowledges the jurisdiction of the courts of the state of Washington.
In the cases where this agreement is between UTC and a federally recognized Indian
tribe, the following Governing LawNenue applies:
A. The state of Washington agrees that it shall initiate any lawsuit against a federally
recognized Indian tribe arising out of or relating to the performance,breach or
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enforcement of this agreement in Federal Court. Interpretation shall be according
to the law of the state of Washington. In the event that the Federal Court
determines that it lacks subject matter jurisdiction to resolve the dispute between
the state and Tribal Party,then the parties agree to venue in Thurston County
Superior Court,but the parties agree that the matter shall not be pursued in
superior court unless there is a Federal Court determination that it lacks subject
matter jurisdiction.
B. Any judicial award, determination, order, decree or other relief,whether in law or
equity or otherwise,resulting from the action shall be binding and enforceable
upon the parties. Any money judgment or award against the Tribe,tribal officers
and members,or the state of Washington and its officers and employees may not
exceed the amount provided for in Section E-Project Funding of the Agreement.
C. The Tribe hereby waives its sovereign immunity as necessary to give effect to this
section,and the state of Washington has waived its immunity to suit in state court.
These waivers are only for the benefit of the Tribe and state and shall not be
enforceable by any third party or by any assignee or delegate of the parties. In any
enforcement action,the parties shall bear their own enforcement costs, including
attorneys' fees.
SECTION 27. SEVERABILITY
The provisions of this agreement are intended to be severable. If any term or provision is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect
the validity of the remainder of the agreement.
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