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HomeMy WebLinkAbout9048 Docusign Envelope ID:985EA106-DO7A-457C-8A66-1CDE90D23C4E AMENDMENT FACE SHEET Contract Number: PC18-96103-004 PROJECT COMPLETION AMENDMENT - X PUBLIC WORKS BOARD CONSTRUCTION LOANS 1. Contractor 2. Contractor Doing Business As (optional) City of Bremerton N/A 345 6th St., STE 100 Bremerton,WA 98337 3. Contractor Representative 4. Public Works Board Representative Max Wedding Gunnar Fridriksson 5. Original Contract Amount 6. De-Obligation 7. Final Contract Amount $5,187,968.00 $112,492.57 $5,075,475.43 8. Amendment Funding Source 9. Amendment Start Date 10. Amendment End Date Federal: ❑ State: Q Other: ❑ N/A: ❑ Amendment Execution Date June 1, 2038 11. Federal Funds (as applicable) Federal Agency CFDA N/A N/A N/A 12. Tax ID# 13. SWV# 14. UBI# 15. UEI# N/A 0000221-00 181-002-539 N/A 14. Contract Purpose The purpose of this amendment is to certify the project completion for this Public Works Board Loan. The Board, defined as the Washington State Public Works Board and Borrower/Contractor acknowledge and accept the terms of this Agreement/Contract As Amended and attachments and have executed this Agreement/Contract Amendment on the date below to start as of the date and year referenced above. The rights and obligations of both parties to this Agreement/Contract As Amended are governed by this Agreement/Contract Amendment and the following other documents incorporated by reference: Amendment Terms and Conditions, including Attachment I: Certified Project Completion Report. A copy of this Agreement/Contract Amendment shall be attached to and made a part of the original Agreement/Contract between the Board and the Borrower/Contractor. Any reference in the original Agreement/Contract to the "Agreement" or the "Contract"shall mean the "Agreement As Amended"or"Contract As Amended," respectively. FOR THE CONTRACTOR FOR PUBLIC WORKS BOARD gq"-Signed by: / Signed by: ✓JIKAMARA, Signature 9bE8E /B Kathry7.2t.,%419667k4,215ublic Works Board Chair Greg wheeler 8/19/2024 14:30 PM PDT Print Name Date Mayor APPROVED AS TO FORM ONLY Title 8/16/2024 This 22nd Day of March, 2013 Bob Ferguson Date Attorney General Signature on File Dawn C. Cortez Assistant Attorney General Docusign Envelope ID:985EA106-DO7A-457C-8A66-1 CDE90D23C4E AMENDMENT DECLARATIONS Amendment Title Completion Amendment Amendment Number Amendment X CLIENT INFORMATION Legal Name City of Bremerton Loan Number PC18-96103-004 PROJECT INFORMATION Title Ostrich Creek Culvert Improvements Project City Bremerton Project State Washington Project Zip 98337 LOAN TERMS and CONDITIONS Loan Amount $5,187,968.00 De-obligation $112,492.57 Final Loan Amount $5,075,475.43 Loan Term-Original 20 years Loan Term-Revised 20 years Current Interest Rate 1.66% Final Interest Rate 1.66% Loan Reimbursement Start Date September 1, 2016 Payment Month June 1 SPECIAL TERMS AND CONDITIONS GOVERNING THIS CONTRACT N/A LOAN SECURITY CONDITION GOVERNING THIS CONTRACT This loan is a revenue obligation of the CONTRACTOR payable solely from the net revenue of the Stormwater/Sanitary Sewer system. Payments shall be made from the net revenue of the utility after the payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility having a lien on that net revenue. As used here, "net revenue" means gross revenue minus expenses of maintenance and operations. The BOARD grants the CONTRACTOR the right to issue future bonds and notes that constitute a lien and charge on net revenue superior to the lien and charge of this loan agreement. SCOPE OF WORK Replace three existing undersized culverts at: Brentwood Drive, Kitsap Way, and Price Road along Ostrich Creek to benefit fish habitat recovery and stormwater facility replacement. The project costs may include but are not limited to engineering, cultural and historical resources, environmental documentation, review, permits, public involvement, easements, bid documents and construction. The project needs to meet all applicable Local, State, and/or Federal standards. Docusign Envelope ID:985EA106-DO7A-457C-8A66-1CDE90D23C4E AMENDMENT TERMS AND CONDITIONS Contract Number: PC18-96103-004 PUBLIC WORKS BOARD PROJECT COMPLETION AMENDMENT CONSTRUCTION CONTRACTS The purpose of this amendment is to acknowledge the project has been certified complete and the final contract amount, interest rate, and local share on the above referenced contract have been adjusted, if necessary, as reflected below. The Public Works Board, (or its successor) a department of the state of Washington and the Contractor agree to amend the above referenced contract as described below. The amount of the loan shall be the Final Loan Amount as identified on the Declarations Page. The interest rate shall be the Final Interest Rate as identified on the Declarations Page, per annum on the outstanding balance. Page 1 6/27/2024 Docusign Envelope ID:985EA106-DO7A-457C-8A66-1CDE90D23C4E ATTACHMENT I: CERTIFIED PROJECT COMPLETION REPORT PUBLIC WORKS BOARD-CONSTRUCTION LOANS Loan Number: PC18-96103-004 Contractor: City of Bremerton Project Name: Ostrich Creek Culvert Improvements Address: 345 6' St., STE 100 Bremerton, WA 98337 Original or Extended Project Completion Date: 9/6/2023 Chief Executive Officer Certification The Chief Executive Officer of the Borrower/Contractor certifies that: • To the best of their knowledge, the financial information and data provided in this report is true and correct as of the signature date indicated below, and no project costs listed in this report incurred more than twelve (12) months before agreement/contract execution or after the date of the project completion; and • Records supporting the information provided in this report are on file and will be made available by the Borrower/Contractor upon request. r—Signed by: n ' tJi' Mayor t—Et F4tiOa�E E b. Signature oT f;nief Executive Officer Title Greg wheeler 8/16/2024 Print Name Date of Signature Project Engineer or Consultant Certification The Project Engineer or Consultant of the Borrower/Contractor certifies that: • To the best of his/her knowledge, the data provided in this report is true and correct as of the signature date indicated below; • The project was completed in accordance with the Loan Agreement/Contract's Scope of Work; and • The loan term is 20 years. If performance incentive has been chosen to extend the term, the engineer agrees the life of the asset is at least 20 years. • The project was completed on January 23,2023 - Final Acceptance . (Actual Date of Project Completion) Managing Engineer - Transportation gnature of Project Engineer or Consultant Title Gunnar Fridriksson 8/5/2024 Print Name Date of Signature 6/27/2024 DocuSign Certificate Of Completion Envelope Id:985EA106D07A457C8A661 CDE90D23C4E Status:Completed Subject:Complete with Docusign:240819Partial_PC18-96103-004_Amd-X.pdf Division: Local Government Program: Public Works Board Co ntractN u m be r: PC 18-96103-004 DocumentType: Contract Amendment Source Envelope: Document Pages:4 Signatures: 1 Envelope Originator: Certificate Pages:5 Initials:0 Max Wedding AutoNav: Enabled 1011 Plum Street SE Envelopeld Stamping: Enabled MS 42525 Time Zone:(UTC-08:00)Pacific Time(US&Canada) Olympia,WA 98504-2525 max.wedding@commerce.wa.gov IP Address: 198.238.29.14 Record Tracking Status:Original Holder: Max Wedding Location: DocuSign 8/19/2024 10:38:47 AM max.wedding@commerce.wa.gov Security Appliance Status:Connected Pool:StateLocal Storage Appliance Status:Connected Pool:Washington State Department of Commerce Location: DocuSign Signer Events Signature Timestamp Kathryn Gardow (-Signed by: Sent:8/19/2024 10:41:10 AM pwbgardowk@gmail.com `' Viewed:8/19/2024 4:29:48 PM -7245D402667°a2E... PWB Chair Signed:8/19/2024 4:30:02 PM Security Level: Email,Account Authentication (None) Signature Adoption: Uploaded Signature Image Using IP Address: 97.113.45.194 Electronic Record and Signature Disclosure: Accepted:8/19/2024 4:29:48 PM ID: 149e8445-3190-485d-9df3-909f58914274 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Melinda Monroe Sent:8/19/2024 4:30:04 PM melinda.monroe@ci.bremerton.wa.us COPIED Viewed:8/19/2024 4:31:47 PM Security Level: Email,Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 11/9/2023 9:53:43 AM ID:4ac437eb-d3c4-42fd-9ed0-9a1 f31 a17e0e Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 8/19/2024 1 0:41:10 AM Certified Delivered Security Checked 8/19/2024 4:29:48 PM Signing Complete Security Checked 8/19/2024 4:30:02 PM Completed Security Checked 8/19/2024 4:30:04 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on:8/11/2020 4:44:12 PM Parties agreed to: Kathryn Gardow, Melinda Monroe ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, Washington State Department of Commerce (we, us or Company)may be required by law to provide to you certain written notices or disclosures. 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AGENDA BILL CITY OF BREMERTON 7 E CITY COUNCIL SUBJECT: Public Works Trust Fund Loan Study Session Date: July 11, 2018 Funding Agreement for the Ostrich Creek COUNCIL MEETING Date: July 18, 2018 Culvert Improvements Project Department: PW& Utilities Presenter: Katie Ketterer Phone: (360) 473-5334 SUMMARY: The Public Works Trust Fund Loan will be used for the Ostrich Creek Culvert Improvements Project. The funds will be managed and distributed by the State Department of Commerce. The Ostrich Creek Culvert project will replace existing undersized culverts at Price Road, Kitsap Way, and Brentwood Road with fish passable culverts and provide stream rehabilitation at the culvert locations. ATTACHMENTS: 1. Loan Funding Agreement 2. Vicinity Maps FISCAL IMPACTS (Include Budgeted Amount): The project is funded by a Public Works Trust Fund Loan in the amount of$4,687,968. The loan term is 20 years with an interest rate of 1.66% and will be paid with stormwater utility funds. STUDY SESSION AGENDA: El Limited Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑ Consent Agenda ►_ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to authorize the Public Works Trust Fund Loan for the Ostrich Creek Culvert Improvements Project; and authorize the Mayor to finalize and execute the funding agreement with Commerce with substantially the same terms and conditions as presented. COUNCIL ACTION: 6Approve [' Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/02/2018 City of Bremerton 345 6'h St, STE 100 Bremerton, WA 98337 CONTRACT FACE SHEET Contract Number: PC18-96103-004 PUBLIC WORKS BOARD CONSTRUCTION LOAN CONTRACT 2. Contractor Doing N/A 3. contractor Representative 4. Public Works Board Representative N/A I N/A 5, Contract Amount 6. Funding Source 7. Contract Start 8. Contract End Date Date $4,687,968.00 Federal: ❑ State: Q Other: ❑ Contract Execution June 1, 2038 N/A: ❑ Date 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10, Tax ID # 11, SWV # 12, UBI # 13, DUNS # N/A SWV0000221-00 181-002-539 14, Contract Purpose Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction, replacement, rehabilitation, or improvement of streets, roads, bridges, drinking water systems, stormwater systems, sanitary sewage systems, or solid waste facilities, including recycling facilities. The Boartl, tlefined as the Washington State Public Works Board and Contractor acknowledge and accept the terms of this Contract and attachments and have executed this Contract on the date below to start as of the date and year last written below. The rights and obligations of both parties to this Contract are governed by this Contract and the following other documents incorporated by reference: Contract Terms and Conditions including Declarations Page; and Attachment I: Attorneys Certification, Signatur Cn�a Winer Print Namle Mmmdr Awa 21,2otS Date FOR PUBLIC WORKS BOARD /q Scott Hutsell, Public Works Board Chair Date APPROVED AS TO FORM ONLY May 02.2018 Signature on file Sandra Adix Assistant Attorney General DECLARATIONS CLIENT INFORMATION Legal Name: City of Bremerton Loan Number: PC18-96103-004 PROJECT INFORMATION Project Title: Ostrich Creek Culvert Improvements Project City: Bremerton Project State: Washington Project Zip Code: 98337 LOAN INFORMATION Loan Amount: $4,687,968.00 Total Estimated Cost: $42687,968,00 Total Estimated Funding: $4,687,968.00 Loan Term: 20 Interest Rate: 1.66 Payment Month: June 1s' Loan Reimbursement Start Date: September 1, 2016 Time of Performance 60 months from Execution Date of this Contract to Project Completion. SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT N/A LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT This loan is a revenue obligation of the CONTRACTOR payable solely from the net revenue of the Stormwater/Sanitary Sewer system. Payments shall be made from the net revenue of the utility after the payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility having a lien on that net revenue. As used here, "net revenue" means gross revenue minus expenses of maintenance and operations. The BOARD grants the CONTRACTOR the right to issue future bonds and notes that constitute a lien and charge on net revenue superior to the lien and charge of this loan agreement. SCOPE OF WORK Replace three existing undersized culverts at: Brentwood Drive, Kitsap Way, and Price Road along Ostrich Creek to benefit fish habitat recovery and Stormwater facility replacement. The project costs may include but are not limited to engineering, cultural and historical resources, environmental documentation, review, permits, public involvement, easements, bid documents and construction. The project needs to meet all applicable Local, State, and/or Federal standards. TABLE OF CONTENTS CONTRACT TERMS AND CONDITIONS................................................................................. 1 Part 1. SPECIAL TERMS AND CONDITIONS ...................... 1.1 Definitions.............................................................................................................................1 1.2 Authority.,,*,** 4 mesa seems, 4 10 a I mass, a I I I I I a I I a I I I I I a I I a seems I I a I I I I I I I I I I'm, I I I I I I I I I I I I I I I I I I I I I I I I I I I I . . . . . . W . . . . . . . . 4 604**Fa seems ad'dal 1.3 Purpose .......... ..... .......... ...... ................................................... Seems .......................a..........a.......1 1A Order of Precedence....",". Immm"1111111IM111111111111111 'I'm, I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I . . . . . . . . . . . . team I Follows tea old model 1.5 5- year deferral for start-up systems,.,',, a . . . . . . . . . . . . . . . . a . . . MORMON . . . . 2 1.6 Competitive Bidding Requirements...................................................................................2 1.7 Default in Repayment".................... 00#04 woe . . . . a 0444 . . . . a wowq*a"m, , a . . . Map . . . . . . . . . . . a . . . . . . . . . . . . . . . . . . . . . . . . . . . w . . . . . 2 1.8 Investment Grade Audit ....................................... ...........................................a.....Mom .....a......2 1.9 Sub -Contractor Data Collection..........................................................................................2 1.10 Eligible Project Costs .................................... ......... ...................:..........................................2 1.11 Historical and Cultural Resources.....***** me 4 111144004M41m am mass's am 13 1.12 Performance Incentives...........'.........................:..............:...................................................3 1.13 Project Completion Amendment and Certified Project Completion Report..................A 1A4Project Signs...............................................................................seems ......... 'am SEEN means ................4 1A5Rate and Term of Loan........................................................................................................16 1.16 Recapture ................... meet ..... .................................. savageness "seems ...:................... Mom .....................5 1.17 Reimbursement Procedures and Payment........................................................................5 1.18 Repayment............................................................................................................................6 1.19 Reports..................................................................................................................................7 1.20 Termination for Cause.........................................................................................................7 1.21 Termination for Convenience..............................................................................................7 1.22 Time of Performance............................................................................................................7 1.23 Contract Suspension...........................................................................................................8 1.24 Special Conditions......,.,..",",. Imllmll" 8 1.25 Loan Security........................................................................................................................8 Part 2. GENERAL TERMS AND CONDITIONS..... 2.1 2.2 2.3 2AAMENDMENTS.... 2.5 DEFINITIONS..........................................................................................................................9 Allowable Costs.....................................................................................................................9 ALL WRITINGS CONTAINED HEREIN.................................................................................9 me I I am I I "III I Is I I seems I a" Ito, 00*004400,M WWI 41011 ...... a ....... M1111111 1111119 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35.....................................................................................9 2.6 APPROVAL...... to**** 0044m4mllml pvq*ml I I I I I I I I I I I I I I I I I I 1111"w"', I I I I I seems' I I I I I 1 00*0% 1104 *00*4 4 1 1 mass I a I'm 2.7 ASSIGNMENT......................................................................................................................10 2.8 ATTORNEYS' FEES............................................................................................................ 2.9 AUDIT...................................................................................................................................10 2.10 CODE REQUIREMENTS........................:..........................................................................a 2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION ............................................. IMM9 10 11 11 2.12 2.13 2.14 CONFORMANCE,...,... I'm, am m me seems mom mom We' 1 asbestos, 1 1144 OWN t000so 04 *a* ............. M"m .... COPYRIGHT PROVISIONS................................................................................................ DISALLOWED COSTS....................................................................................................... 11 11 12 2.15 2.16 DISPUTES...........................................................................................................................12 DUPLICATE PAYMENT..................................................................................................... 12 2AIN 2.18 ETHICS/CONFLICTS OF INTEREST,.,,,,,.,.",", ........... GOVERNING LAW AND VENUE....................................................................................... 12 13 2.19 2.20 INDEMNIFICATION............................................................................................................ INDEPENDENT CAPACITY OF THE CONTRACTOR...................................................... 13 13 2.21 INDUSTRIAL INSURANCE COVERAGE........................................................ ..................a 13 2.22 LAWS,,,,, .... . . . . . . . . . . . . . . . I I I I I I I I I I I I I I I a a a Sam Mama 04 sea 1 1 3 2.23 LICENSING, ACCREDITATION AND REGISTRATION.................................................... 14 2.24 LIMITATION OF AUTHORITY,,",,',,", 14 41, 1 1 1 1 1 1 1 1 1 1 . . . . . . . . . . . . . . . a a mama posamm &am" 14 2.26 Local Public Transportation Coordination..................................................................... 14 2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ............................................... 14 2.27 PAY EQUITY... I I I I I I I I I I I I I smammmmasmad a a a 0 am 00 4 1 1 d I I I I I I . . . . . . . . . . . 14 2.28 POLITICAL ACTIVITIES..................................................................................................... 15 2.29 PREVAILING WAGE LAW................................................................................................. 15 2.30 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION .............................. 15 2.31 PUBLICITY,,.,. 4114 IN I,,", I move somemmsomm 011,111,1111, "1 ........ ............... 16 2.32 RECAPTURE.................................................................................................... a................ 15 2.33 RECORDS MAINTENANCE..........:.......................NSA .......................................................... 16 2.34 REGISTRATION WITH DEPARTMENT OF REVENUE .....: .............................................. 16 2.35 RIGHT OF INSPECTION ..............: ....... ...... ..................... mama .. sea ................................ MEMO .. Ems . 16 2.36 SAVINGS............................................................................................................................ 16 2.37 SEVERABILITY......................................................:.............................................a.............16 2.38 SUBCONTRACTING.........................::......................................................................seems mama 16 2.39 SURVIVAL ..... ........................ I'm ............. me* ................. .................................. a ......... ............. 17 2.40 TAXES..............................................:..................................................................................17 2.41 TERMINATION FOR CAUSE / SUSPENSION....(...................................................... 17 2.42 TERMINATION FOR CONVENIENCE ........................................... 17 2.43 TERMINATION PROCEDURES........,.................................................... 17 2.44 WAIVER ...... .................................................................:.....................................................18 Part 3. ATTACHMENT I: ATTORNEY'S CERTIFICATION.........:..:............::...................owes 18 CONTRACT TERMS AND CONDITIONS PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM Part 1. SPECIAL TERMS AND CONDITIONS 1A Definitions As used throughout this Construction Loan Contract the following terms shall have the meaning set forth below: A. "Contract" shall mean this Construction Loan Contract. B. "Contractor" shall mean the local government identified on the Contract Face Sheet performing service(s) under this Contract and who is a Party to the Contract, and shall include all employees and agents of the Contractor. C. "The Board" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and who is a Party to the Contract. D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions as stated on the Declarations Page of this Loan Contract, displayed within the contract in THIS STYLE for easier identification. 1.2 Authority Acting under the authority of Chapter 43.155 RCW, the Board has awarded the Contractor a Public Works Board construction loan for an approved public works project. 1.3 Purpose The Board and the Contractor have entered into this Contract to undertake a local public works project that furthers the goals and objectives of the Washington State Public Works Program. The project will be undertaken by the Contractor and will include the activities described in the SCOPE OF WORK shown on the Declarations page. The project must be undertaken in accordance with the loan terms and conditions, and all applicable federal, state and local laws and ordinances, which by this reference are incorporated into this Contract as though set forth fully herein. 1 A Order of Precedence In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the following order: A. Applicable federal and state of Washington statutes and regulations. B. Special Terms and Conditions including attachments. C. General Terms and Conditions. 1.5 5- year deferral for start-up systems If the project financed by this contract is to develop a system to deliver previously unavailable services, and revenue from those services is to repay the loan, the new system is eligible for a deferral of loan payments for sixty (60) months after the Contract execution date. The Contractor may provide a written request to the Board requesting a 5-year deferral for an eligible system. The Board may approve the deferral request. Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is due June 1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of the 7th year of the loan term. 1.6 Competitive Bidding Requirements The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding requirements for projects assisted in whole or in part with money from the Public Works Program. 1.7 Default in Reoavment Loan repayments shall be made on the loan in accordance with Section 1.18 of this Contract. A payment not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall be assessed a monthly penalty beginning on the first (1st) day past the due date. The penalty will be assessed on the entire payment amount, The penalty will be one percent (1%) per month or twelve percent (12%) per annum. The same penalty terms shall apply at project completion if the repayment of loan funds in excess of eligible costs are not repaid at the time of the Project Completion Amendment is submitted, as provided for in Section 1.13. The Contractor acknowledges and agrees to the Board's right, upon delinquency in the payment of any annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of such delinquency. The Contractor shall be responsible for all legal fees incurred bythe Board in any action undertaken to enforce its rights under this section. 1.8 Investment Grade Audit For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other public works facility for which an investment grade audit is obtainable, Contractor must undertake an investment grade audit. Costs incurred as part of the investment grade audit are eligible project costs. 1.9 Sub -Contractor Data Collection Contractor will submit reports, in a form and format to be provided by Commerce and at intervals as agreed by the parties, regarding work under this Contract performed by sub -contractors and the portion of the Contract funds expended for work performed by sub -contractors, including but not necessarily limited to minority -owned, women -owned, and veteran -owned business sub -contractors. "Sub -Contractors' shall mean sub -contractors of any tier. 1.10 Eligible Proiect Costs The Eligible project costs must consist of expenditures eligible under Washington Administrative Code (WAC) 399-30-030 and be related only to project activities described in declared SCOPE OF WORK. Eligible costs for reimbursement shall be construed to mean expenditures incurred and paid, or incurred and payable within thirty (30) days of the reimbursement request. Only costs that have been incurred on or after LOAN REIMBURSEMENT START DATE shown in the Declarations are eligible for reimbursement under this Contract. Eligible costs will be paid according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for projects assisted with Public Works Board loans. These terms supersede the terms in Section 2.2. Allowable Costs 1.11 Historical and Cultural Resources Prior to commencing construction, Contractor shall complete the requirements of Governor's Executive Order 05-05, or, as an alternative to completion of Governor's Executive Order 05-05, Contractor shall complete Section 106 of the National Historic Preservation Act, as applicable. Contractor agrees that the Contractor is legally and financially responsible for compliance with all laws, regulations, and agreements related to the preservation of historical or cultural resources and agrees to hold harmless the Board and the State of Washington in relation to any claim related to such historical or cultural resources discovered, disturbed, or damaged as a result of the project funded by this Contract. In addition to the requirements set forth in this Contract, Contractor shall, in accordance with Governor's Executive Order 05-05, coordinate with the Washington State Department of Archaeology and Historic Preservation (DAHP), including any recommended consultation with any affected tribe(s), during project design and prior to construction to determine the existence of any tribal cultural resources affected by the proposed project funded by this Contract. Contractor agrees to avoid, minimize, or mitigate impacts to cultural resource as a continuing pre -requisite to receipt of funds under this Contract. The Contractor agrees that, unless the Contractor is proceeding under an approved historical and cultural monitoring plan or other memorandum of agreement, if historical or cultural resources are discovered during construction, the Contractor shall immediately stop work and notify the local historical preservation officer and the state's historic preservation officer at DAHP. If human remains are uncovered, the Contractor shall report the presence and location of the remains to the coroner and local enforcement immediately, then contact DAHP and the concerned tribe's cultural staff or committee. The Contractor shall require this provision to be contained in all sub -contracts for work or services related to the declared SCOPE OF WORK. In addition to the requirements set forth in this Contract, Contractor agrees to comply with RCW 27.44.040 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and, WAC 25-48 regarding Archaeological Excavation and Removal Permits. Completion of the Section 106 of the National Historic Preservation Act shall substitute for completion of Governor's Executive Order 05-05. In the event that the Contractor finds it necessary to amend SCOPE OF WORK, the Contractor may be required to re -comply with Governor's Executive Order 05-05 or Section 106 of the National Historic Preservation Act. 1.12 Performance Incentives The Contractor shall complete the project no later than sixty (60) months after the date of contract execution. Should the Contractor complete the project within forty-eight (48) months of the date of contract execution, the Contractor may choose one of the two following incentives upon project completion: Option A: The repayment period will be increased by twenty-four (24) months, not to exceed the life of the asset, OR: Option B: The interest rate will be decreased by one -quarter of one percent (0.25%). Shculd the Contractor complete the project within thirty-six (36) months of the date of contract execution, the Contractor may choose one of the following two incentives upon project completion: Option C: The repayment period will be increased by sixty (60) months, not to exceed the life of the asset, OR; Option D: The interest rate will be decreased by up to one-half of one percent (0.50%). Once an option is selected, the Contract shall be modified to note the appropriate change and no further adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of the performance incentive chosen, at no point in time shall the minimum loan interest rate be less than 0.25%. The calculation of interest rate and term adjustments will apply to the remaining payments beginning from the date the Project Completion report is certified. 1.13 Protect Completion Amendment and Certified Project Completion Report The Contractor shall complete a Certified Project Completion Report when all activities identified in the SCOPE OF WORK are complete. The Board will supply the Contractor with the Certified Project Completion Report form, which shall include: A. A certified statement that the project, as described in the declared SCOPE OF WORK, is complete and, if applicable, meets required standards. B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the project as described in the SCOPE OF WORK - C. Certification that all costs associated with the project have been incurred and have been accounted for. Costs are incurred when goods and services are received and/or contract work is performed. D. A final voucher for the remaining eligible funds. E. Pictures of Completed Project, The Contractor will submit the Certified Project Completion Report together with the last Invoice Voucher for a sum not to exceed the balance of the loan amount. The final Invoice Voucher payment shall not occur prior to the completion of all project activities identified in the SCOPE OF WORK and the Board's receipt and acceptance of the Certified Project Completion Report. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, term; and interest rate. 1.14 Protect Signs If the Contractor displays, during the period covered by this Contract, signs or markers identifying those agencies participating financially in the approved project, the sign or marker must identify the Washington State Public Works Board as a participant in the project. 1.15 Rate and Term of Loan The Board shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the Contract Face Sheet and declared on the Contract Declarations Page. The interest rate shall be the declared INTEREST RATE per annum on the outstanding principal balance. The length of the loan shall not exceed the declared LOAN TERM in years, with the final payment due by the CONTRACT END DATE as shown on the Contract Face Sheet. 1.16 Recapture The right of recapture under Section 2.32. Recapture, shall exist for a period not to exceed six (6) years following contract termination. In the event that the Board is required to institute legal proceedings to enforce the recapture provision, the Board shall be entitled to its costs thereof, including attorney's fees. 1.17 Reimbursement Procedures and Pavment If funding or appropriation is not available at the time the invoice is submitted, or when this contract is executed, the issuance of warrants will be delayed or suspended until such time as funds or appropriation become available. Therefore, subject to the availability of funds, warrants shall be issued to the Contractor for reimbursement of allowable expenses incurred by the Contractor while undertaking and administering approved project activities in accordance with the declared SCOPE OF WORK. The Board shall reimburse the Contractor for eligible project expenditures up to the maximum loan amount under this contract, as identified in Section 1.10. When requesting reimbursement for costs incurred, the Contractor shall submit a signed and completed Invoice Voucher (Form A19), referencing the SCOPE OF WORK project activity performed, and any appropriate documentation such as bills, invoices, and receipts. The Invoice Voucher must be certified by an official of the Contractor with authority to bind the Contractor. Requests for reimbursements for costs related to construction activities will not be accepted until the Contractor provides: • Proof of compliance with Governor's Executive Order 05-05 or Section 106 of the National Historic Preservation Act, as described in Section 1.11, and • Signed Public Works Board Notice of Contract Award and Notice to Proceed, which follows the formal award of a construction contract. The Contractor shall submit all Invoice Vouchers and all required documentation to: Public Works Board Attn: (Program Specialist) PO Box 42525 Olympia, WA 98504-2525 The Board will pay the Contractor upon acceptance of the work performed and receipt of properly completed invoices. Invoices shall be submitted to the Board not more often than monthly. Payment shall be considered timely if made by the Board within thirty (30) calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Contractor. The Board may, at its sole discretion, terminate the contract or withhold payments claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this contract. No payments in advance or in anticipation of services or supplies to be provided under this contract shall be made by the Board. Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by another source for an eligible project cost, then the Contractor shall not be reimbursed by the Board for that cost. Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its subcontractors. In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At the time of project completion, the Contractor shall submit to the Board a Project Completion Amendment certifying the total actual project costs and local share. The final Public Works loan disbursement shall bring the total loan to the lesser of 100% of the eligible project costs or the total declared LOAN AMOUNT. The Project Completion Amendment shall serve as an amendment to this Contract determining the final loan amount, local share, and interest rate. In the event that the final costs identified in the Project Completion Amendment indicate that the Contractor has received Public Works Board monies in excess of 100.00% of eligible costs, all funds in excess of 100.00% shall be repaid to the Public Works Board by payment to the Department of Commerce, or its successor, together with the submission of the Project Completion Amendment. 1.18 Repayment Loan repayment installments are due on the day and month identified under the term: PAYMENT MONTH on the Declarations Page, Payments are due each year during the term of the loan beginning one year from the date of contract execution. Interest only will be charged for this payment if a warrant is issued prior to this date. All subsequent payments shall consist of principal and accrued interest due on the specified PAYMENT MONTH. date of each,. year during the remaining term of the loan.: Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum based on a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest will begin to accrue from the date each warrant is issued to the Contractor. The final payment shall be on or before the CONTRACT END DATE shownon the Declarations page,. of an amount sufficient to bring the loan balance to zero, In the event that the Board approves the Contractor's request for deferral as outlined in Section 1.5, then the first loan repayment is due sixty (60) months after contract execution. Interest accrues for the sixty (60) months after contract execution. The accrued interest only will be charged for this payment if a warrant is issued prior to this date. Interest and principal payments are due on the declared PAYMENT MONTH date of each year during the remaining term of the loan. The Contractor has the right to repay the unpaid balance of the loan in full at any time or make accelerated payments without penalty. The Contractor will repay the loan in accordance with the preceding conditions through the use of a check, money order, or equivalent means made payable to the Washington State Department of Commerce, or its successor. 1.19 Reports The Contractor shall furnish the Board with: A. Project Status Reports with each Invoice Voucher; B. Project Quarterly Reports (if no funds have been reimbursed in the quarter) and/or Quarterly Expenditures Report; C. Certified Project Completion Report at project completion (as described in Section 1.13); D. Pictures of various stages of the project, and E. Other reports as the Board may require. 1.20 Termination for Cause If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds only for those activities identified in the SCOPE OF WORK, the Board may terminate the Contract in whole or in part at any time. The Board shall notify the Contractor in writing of its determination to terminate, the reason for such termination, and the effective date of the termination. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.41 Termination for Cause/Suspension. 1.21 Termination for Convenience The Board may terminate this contract in the event that state funds are no longer available to the Board, or are not appropriated for the purpose of meeting the Board's obligations under this contract. Termination will be effective when the Board sends written notice of termination to the Contractor. Nothing in this section shall affect the Contractor's obligation to repay the unpaid balance of the loan. These terms supersede the terms in Section 2.42 Termination for Convenience. 1.22 Time of Performance No later than sixty (60) months after the date of contract execution the Contractor must reach project completion. Failure to meet Time of Performance shall constitute default of this contract. In the event of extenuating circumstances, the Contractor may request, in writing, that the Board extend the deadline for project completion. The Board may extend the deadline. The term of this contract shall be for the entire term of the loan, regardless of actual project completion, unless terminated sooner as provided herein. 1.23 Contract Suspension In the event that the Washington State Legislature fails to pass and the Governor does not authorize a Capital Budget by June 30 of each biennium, the Washington State Constitution Article 8 and RCW 43.88.130 and RCW 43.88.290 prohibit expenditures or commitments of state funds in the absence of appropriation. In such event, all work will be suspended effective July 1. The Contractor shall immediately suspend work and take all reasonable steps necessary to minimize the cost of performance directly attributable to such suspension until the suspension is cancelled. THE BOARD shall notify the Contractor immediately upon lifting of the contract suspension. 1.24 Special Conditions If SPECIAL CONDITIONS are listed on the Contract Declarations Page then these conditions are herein incorporated as part of the terms and requirements of this contract. 1.25 Loan Security Loan Security payments shall be made as stated on the attached Declarations Page, and identified therein as LOAN SECURITY. Part I GENERAL TERMS AND CONDITIONS 2.1 DEFINITIONS As used throughout this Contract, the following terms shall have the meaning set forth below: A. "Authorized Representative" shall mean the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. B. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this Contract, and shall include all employees and agents of the Contractor. C. "BOARD" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCW) 43.155.030, and which is a Party to the Contract D. "Personal Information" shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. E. "State" shall mean the state of Washington. F. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or part of those services under this Contract under a separate contract with the Contractor. The terms "subcontractor" and "subcontractors" mean subcontractor(s) in any tier. 2.2 Allowable Costs Costs allowable under this Contract are actual expenditures according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Face Sheet. 2.3 ALL WRITINGS CONTAINED HEREIN This Contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. 2.4 AMENDMENTS This Contract 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. 2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35 The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. 2.6 APPROVAL This contract shall be subject to the written approval of the Board's Authorized Representative and shall not be binding until so approved. The contract may be altered, amended, or waived only by a written amendment executed by both parties. 2J ASSIGNMENT Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the Contractor without prior written consent of the Board. 2.8 ATTORNEYS' FEES Unless expressly permitted under another provision of the Contract, in the event of litigation or other action brought to enforce Contract terms, each party agrees to bear its own attorney's fees and costs. 2.9 AUDIT A. General Requirements Contractors are to procure audit services based on the following guidelines. The Contractor shall maintain its records and accounts so as to facilitate the audit requirement and shall ensure that Subcontractors also maintain auditable records. The Contractor is responsible for any audit exceptions incurred by its own organization or that of its Subcontractors. The Board reserves the right to recover from the Contractor all disallowed costs resulting from the audit. Responses to any unresolved management findings and disallowed or questioned costs shall be included with the audit report. The Contractor must respond to the Board's requests for information or corrective action concerning audit issues within thirty (30) days of the date of request. B. State Funds Requirements In the event an audit is required, if the Contractor is a local government entity, the Office of the State Auditor shall conduct the audit. Audits of non-profit organizations are to be conducted by a certified public accountant selected by the Contractor. The Contractor shall include the above audit requirements in any subcontracts. In any case, the Contractor's financial records must be available for review by the Board. C. Documentation Requirements The Contractor must send a copy of any required audit no later than nine (9) months after the end of the Contractor's fiscal year(s) to: Department of Commerce ATTN: Audit Review and Resolution Office PO Box 42525 Olympia WA 98504-2525 In addition to sending a copy of the audit, when applicable, the Contractor must include: Corrective action plan for audit findings within three (3) months of the audit being received by the Board. • Copy of the Management Letter. If the Contractor is required to obtain a Single Audit in accordance with 2 CFR Part 200, a copy must be provided to Commerce; no other report is required. 10 2.10 CODE REQUIREMENTS All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and federal building, mechanical, plumbing, fire, energy and barrier -free codes. Compliance with the Americans with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building Department. 2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION A. "Confidential Information" as used in this section includes: 1. All material provided to the Contractor by the Board that is designated as "confidential" by the Board; 2. All material produced by the Contractor that is designated as "confidential" by the Board; and 3. All personal information in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of government services, addresses, telephone numbers, social security number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or disclosure of Confidential Information. The Contractor shall use Confidential Information solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information to any third party except with the prior written consent of the Board or as may be required by law. The Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto. Upon request, the Contractor shall provide the Board with its policies and procedures on confidentiality. The Board may require changes to such policies and procedures as they apply to this Contract whenever the Board reasonably determines that changes are necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time period specified by the Board. Upon request, the Contractor shall immediately return to the Board any Confidential Information that the Board reasonably determines has not been adequately protected by the Contractor against unauthorized disclosure. C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of any unauthorized use or disclosure of any confidential information, and shall take necessary steps to mitigate the harmful effects of such use or disclosure. 2.12 CONFORMANCE If any provision of this contract violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. 2.13 COPYRIGHT PROVISIONS Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the author of such Materials. In the event the Materials are not considered "works for hire' under the U.S. Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials, ncluding all intellectual property rights, moral rights, and rights of publicity to the Board effective from the moment of creation of such Materials. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownershipincludes the right to copyright, patent, register and the ability to transfer these rights. 11 For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty -free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that the Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the Board. The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materials furnished under this Contract, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Contract. The Contractor shall provide the Board with prompt written notice of each notice or claim of infringement received by the Contractor with respect to any Materials delivered under this Contract. The Board shall have the right to modify or remove any restrictive markings placed upon the Materials by the Contractor. 2,14 DISALLOWED COSTS The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors 2,15 DISPUTES Except as otherwise provided in this Contract, when a dispute arises between the parties and it cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who may designate a neutral person to decide the dispute. The request for a dispute hearing must: • be in writing; • state the disputed issues; • state the relative positions of the parties; • state the Contractor's name, address, and Contract number; and • be mailed to the Chair and the other party's (respondent's) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's designee and the requestor within five (5),working days, The Chair or designee shall review the written statements and reply in writing to both parties within ten (10) working days. The Chair or designee may extend this period if necessary by notifying the parties. The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this Contract shall be construed to limit the parties' choice of a mutually acceptable alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above. 2.16 DUPLICATE PAYMENT The Contractor certifies that work to be performed under this contract does not duplicate any work to be charged against any other contract, subcontract, or other source. 2.77 ETHICS/CONFLICTS OF INTEREST In performing under this Contract, the Contractor shall assure compliance with the Ethics in Public Service Act (Chapter 42.52 RCW) and any other applicable state or federal law related to ethics or conflicts of interest. 12 2.18 GOVERNING LAW AND VENUE This Contract shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. 2.19 INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of Washington, the Board, all other agencies of the state and all officers, agents and employees of the state, from and against all claims or damages for injuries to persons or property or death arising out of or incident to the Contractor's performance or failure to perform the Contract. The Contractor's obligation to indemnify, defend, and hold harmless includes any claim by the Contractor's agents, employees, representatives, or any Subcontractor or its agents, employees, or representatives. The Contractor's obligation to indemnify, defend, and hold harmless shall not be eliminated by any actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers. Subcontracts shall include a comprehensive indemnification clause holding harmless the Contractor, the Board, the state of Washington, its officers, employees and authorized agents. The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the state and its agencies, officers, agents or employees. 2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR The parties intend that an independent contractor relationship will be created by this Contract. The Contractor and its employees or agents performing under this Contract are not employees or agents of the state of Washington or the Board. The Contractor will not hold itself out as or claim to be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and control of the work will be solely with the Contractor. 2,21 INDUSTRIAL INSURANCE COVERAGE The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the Board may collect from the Contractor the full amount payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to collect from the Contractor. 2.22 LAWS The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of local and state and federal governments, as now or hereafter amended including, but not limited to: Washington State Laws and Regulations A. Affirmative Action, RCW 41.06.020 (11). B. Boards of Directors or Officers of Non-profit Corporations — Liability - Limitations, RCW 4.24.264. C. Disclosure -Campaign Finances -Lobbying, Chapter 42.17 RCW. D, Discrimination -Human Rights Commission, Chapter 49.60 RCW. E. Ethics in Public Service, Chapter 42.52 RCW. F. Housing Assistance Program, Chapter 43.185 RCW. 13 G. Interlocal Cooperation Act, Chapter 39.34 RCW. H. Noise Control, Chapter 70.107 RCW. I. Office of Minority and Women's Business Enterprises, Chapter 39.19 RCW and Chapter 326-02 WAC. J. Open Public Meetings Act, Chapter 42.30 RCW. K. Prevailing Wages on Public Works, Chapter 39.12 RCW. L. Public Records Act, Chapter 42.56 RCW. M. Relocation Assistance - Real Property Acquisition Policy, Chapter 8.26 RCW. N. Shoreline Management Act of 1971, Chapter 90.58 RCW. O. State Budgeting, Accounting, and Reporting System, Chapter 43.88 RCW. P. State Building Code, Chapter 19.27 RCW and Energy -related building standards, Chapter 19.27A RCW, and Provisions in buildings for aged and handicapped persons, Chapter 70.92 RCW, Q. State Coastal Zone Management Program, Publication 01-06-003, Shorelands and Environmental Assistance Program, Washington State Department of Ecology. R. State Environmental Policy, Chapter 43.21 C RCW, S. State Executive Order 05-05 Archeological and Cultural Resources. 2.23 LICENSING, ACCREDITATION AND REGISTRATION The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements or standards necessary for the performance of this Contract. 2.24 LIMITATION OF AUTHORITY Only the Authorized Representative or Authorized Representative's designee by writing (designation 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 Contract. 2.26 Local Public Transportation Coordination Where applicable, Contractor shall participate in local public transportation forums and implement strategies designed to ensure access to services. 2,26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS During the performance of this Contract, the Contractor shall comply with all federal, state, and local nondiscrimination laws, regulations and policies. In the. event of the Contractor's non-compliance or refusal to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or terminated in whole or in part, and the Contractor may be decfared ineligible for further contracts with the Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.27 PAY EQUITY The Contractor agrees to ensure that "similarly employed" individuals in its workforce are compensated as equals, consistent with the following: A. Employees are "similarly employed" if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar 14 working conditions. Job titles alone are not determinative of whether employees are similarly employed; B. Contractor may allow differentials in compensation for its workers if the differentials are based in good faith and on any of the following: 1. A seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. 2. A bona fide job -related factor or factors may include, but not be limited to, education, training, or experience that is: Consistent with business necessity; not based on or derived from a gender -based differential; and accounts for the entire differential. 3. A bona fide regional difference in compensation level must be: Consistent with business necessity; not based on or derived from a gender -based differential; and account for the entire differential. This Contract may be terminated by the BOARD, if the Department of Commerce or the Department of Enterprise Services determines that the Contractor is not in compliance with this provision. 2.28 POLITICAL ACTIVITIES Political activity of Contractor employees and officers are limited by the State Campaign Finances and Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508. No funds may be used for working for or against ballot measures or for or against the candidacy of any person for public office. 2,29 PREVAILING WAGE LAW The Contractor certifies that all contractors and subcontractors performing work on the Project shall comply with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by this contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages' and "Affidavit of Wages Paid" as required by RCW 39.12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's review upon request. 2.30 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION The funds provided under this Contract shall not be used in payment of any bonus or commission for the purpose of obtaining approval of the application for such funds or any other approval or concurrence under this Contract provided, however, that reasonable fees or bona fide technical consultant, managerial, or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project costs. 2.31 PUBLICITY The Contractor agrees not to publish or use any advertising or publicity materials in which the state of Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written consent of the Board. 2.32 RECAPTURE In the event that the Contractor fails to perform this contract in accordance with state laws, federal laws, and/or the provisions of this contract, the Board reserves the right to recapture funds in an amount to compensate the Board for the noncompliance in addition to any other remedies available at law or in equity. 15 Repayment by the Contractor of funds under this recapture provision shall occur within the time period specified by the Board. In the alternative, the Board may recapture such funds from payments due under this contract. 2.33 RECORDS MAINTENANCE The Contractor shall maintain all books, records, documents, data and other evidence relating to this Contract and performance of the services described herein, including but not limited to accounting , procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Contract. Contractor shall retain such records for a period of six years following the date of final payment. 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 finally resolved. 2,34 REGISTRATION WITH DEPARTMENT OF REVENUE If required by law, the Contractor shall complete registration with the Washington State Department of Revenue. 2,35 RIGHT OF INSPECTION At no additional cost all records relating to the Contractor's performance under this Contract shall be subject at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and federal and state officials so authorized by law, in order to monitor and evaluate performance, compliance, and quality assurance under this Contract. The Contractor shall provide access to its facilities for this purpose. 2,36 SAVINGS In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Contract and prior to normal completion, the Board may terminate the Contract under the "Termination for Convenience" clause, without the ten business day notice requirement. In lieu of termination, the Contract may be amended to reflect the new funding limitations and conditions, 2.37 SEVERABILITY If any provision of this Contract or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect without the invalid provision, if such remainder conforms to the requirements of law and the fundamental purpose of this Contract and to this end the provisions of this Contract are declared to be severable. 2.38 SUBCONTRACTING The Contractor may only subcontract work contemplated under this Contract if it obtains the prior written approval of the Board. If the Board approves subcontracting, the Contractor shall maintain written procedures related to subcontracting, as well as copies of all subcontracts and records related to subcontracts. For cause, the Board in writing may: (a) require the Contractor to amend its subcontracting procedures as they relate to this Contract; (b) prohibit the Contractor from subcontracting with a particular person or entity; or (c) require the Contractor to rescind or amend a subcontract. Every subcontract shall bind the Subcontractor to follow all applicable terms of this Contract. The Contractor is responsible to the Board if the Subcontractor fails to comply with any applicable term or condition of this Contract. The Contractor shall appropriately monitor the activities of the Subcontractor to assure fiscal 16 conditions of this Contract. In no event shall the existence of a subcontract operate to release or reduce the liability of the Contractor to the Board for any breach in the performance of the Contractor's duties. Every subcontract shall include a term that the Board and the State of Washington are not liable for claims or damages arising from a Subcontractor's performance of the subcontract. 2,39 SURVIVAL The terms, conditions, and warranties contained in this Contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Contract shall so survive. 2.40 TAXES All payments accrued on account of payroll taxes, unemployment contributions, the Contractor's income or gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole responsibility of the Contractor. 2,41 TERMINATION FOR CAUSE / SUSPENSION In event the Board determines that the Contractor failed to comply with any term or condition of this Contract, the Board may terminate the Contract in whole or in part upon written notice to the Contractor. Such termination shall be deemed "for cause." Termination shall take effect on the date specified in the notice. In the alternative, the Board upon written notice may allow the Contractor a specific period of time in which to correct the non-compliance. During the corrective -action time period, the Board may suspend further payment to the Contractor in whole or in part, or may restrict the Contractor's right to perform duties under this Contract. Failure by the Contractor to take timely corrective action shall allow the Board to terminate the Contract upon written notice to the Contractor. "Termination for Cause' shall be deemed a "Termination for Convenience' when the Board determines that the Contractor did not fail to comply with the terms of the Contract or when the Board determines the failure was not caused by the Contractor's actions or negligence. If the Contract is terminated for cause, the Contractor shall be liable for damages as authorized by law, including, but not limited to, any cost difference between the original contract and the replacement contract, as well as all costs associated with entering into the replacement contract (i.e., competitive bidding, mailing, advertising, and staff time). 2.42 TERMINATION FOR CONVENIENCE Except as otherwise provided in this Contract the Board may, by ten (10) business days written notice, beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is so terminated, the Board shall be liable only for payment required under the terms of this Contract for services rendered or goods delivered prior to the effective date of termination. 2.43 TERMINATION PROCEDURES After receipt of a notice of termination, except as otherwise directed by the Board, the Contractor shall: A. Stop work under the Contract on the date, and to the extent specified, in the notice; B. Place no further orders or subcontracts for materials, services, or facilities related to the Contract; C. Assign to the State all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the Board has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts. Any attempt by the Contractor to settle such claims must have the prior written approval of the Board; and 17 D. Preserve and transfer any materials, contract deliverables and/or the Board property in the Contractor's possession as directed by the Board. Upon termination of the Contract, the Board shall pay the Contractor for any service provided by the Contractor under the Contract prior to the date of termination. The Board may withhold any amount due as the Board reasonably determines is necessary to protect the Board against potential loss or liability resulting from the termination. The Board shall pay any withheld amount to the Contractor if the Board later determines that loss or liability will not occur. The rights and remedies of the Board under this section are in addition to any other rights and remedies provided under this Contract or otherwise provided under law. 2.44 WAIVER Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such n writing and signed by Authorized Representative of the Board. m ATTACHMENT I: A I I UMNEY'S CERTIFICATION PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM City of Bremerton PC18-96103-004 I, K©�1r�i(r (�L(�JDIi r✓` i hereby certify: I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the City of Bremerton (the Contractor); and I have also examined any and all documents and records which are pertinent to the Contract, including the application requesting this financial assistance. Based on the foregoing, it is my opinion that: 1. The Contractor is a public. body, properly constituted and operating under the laws of the State of Washington, empowered to receive and expend federal, state and local funds, to contract with the State of Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their application. 2. The Contractor is empowered to accept the Public Works Board financial assistance and to provide for repayment of the loan ass forth in the Contract. 3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the above -described public facilities project or to enjoin the Contractor from repaying the loan extended by the Public Works Board with respect to such project. The Contractor is not a party to litigation which will materially affect its ability to repay such loan on the terms contained in the Contract. 4. Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable to the Contractor. Sighature of Attorney ,Wg( fl eoUIot^, Name Date 7 19