07/28/2017 - PacketPort Orchard
Council Finance Committee
July 28, 2017
7:3o am Council Conference Room
City Hall
1) Finance Report Treasurer Martin
a. Sales Tax Revenue Report
b. Treasurers Report — Funds, accounts
c. Results Limited Tax General Obligation Bond, 2017
d. Tremont Widening Construction Finance Plan
2) Procurement of Goods and Services
a. Contracting and Purchasing Limitations
3) State Capital Budget impasse impact
4) Draft Development Agreement
Other Items to come before the Committee
Schedule Next Meeting Date
Role of the Finance Committee
Mayor Putaansuu
Mayor
Mayor, Thomas Hunter, Martin
The finance committee provides oversight of city budgeting, financial planning, and financial reporting. The committee recommends long-range
financial goals along with funding strategies for the operating and capital budgets. Human resource issues requiring policy direction are brought
before the committee. The committee serves as the advisory forum for transportation and street maintenance funding, and funding relating to the
transportation benefit district.
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AMENDMENT FACE SHEET
Loan Number: DM13-952-185
Amendment Number: A
Washington State Department of Commerce
PUBLIC WORKS BOARD
DRINKING WATER STATE REVOLVING FUND
1. Contractor
2. Contractor Doing Business As (optional)
City of Port Orchard
N/A
216 Prospect Street
Port Orchard, WA 98366
3. Contractor Representative (only if updated)
4. Public Works Board Representative (only if updated)
N/A
N/A
5.Original Contract Amount
6. Amendment Amount
7. New Contract Amount
$ 6,060,000.00
N/A
$ 6,060,000.00
8. Amendment Funding Source
9. Amendment Start Date
10. Amendment End Date
Federal: ® State: R] Other: ❑ NIA: ❑
Amendment Execution Date
October 1, 2037
11. Federal Funds (as applicable): Federal Agency: CFDA Number:
N/A EPA 66.468
12. Amendment Purpose:
The purpose of this amendment is to revise the Scope of Work of the 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 any attachments. 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 ORROWER/CONTRACTOR
FOR B1.141LIC WORKS BOARD
( a],20 Lf t� -�
J.C. Bald in, n eri C Public Works Board
Signature
Print Name •AQ R10RC ,
Date
```�PORArF�'.'/��
APPROVED AS TO FORM ONLY
-T his 14'" Day of March. 2013
TitleIF'
io:
-
Bob Ferguson
Attorney General
Date �!►�;.
u,;;�
Signature on File
Kathryn Wyatt
Assistant Attorney General
Page 4 Revised Scope of Work Amendment
3/16/2017 Drinking Water State Revolving Fund
AMENDMENT TERMS AND CONDITIONS
Washington State Department of Commerce
PUBLIC WORKS BOARD
DRINKING WATER STATE REVOLVING FUND
Amendment Number: A
Contractor/Borrower: City of Port Orchard
Contract Number: DM13-952-185
Amendment Number: Enter Amendment Designator
The purpose of this amendment is to revise the Scope of Work of the above referenced Drinking Water State
Revolving Fund.
The Public Works Board (or its successors), a department of the State of Washington, (hereafter referred to as
the "Board") and the Contractor, listed above and on the attached Face Sheet, agree to amend the declared loan
as described below.
The SCOPE OF WORK is amended to delete the original declared Scope of Work and replace it with the_SCOPE
OF WORK as shown on the attached Declarations Page. The Scope of Work, where referenced in the Contract's
Special Terms and Conditions section, shall refer to this amended text.
Page 6 Revised Scope of Work Amendment
3/16/2017 Drinking Water State Revolving Fund
General Ledger
Cash and Investment
Totals
User: rnichols
Printed: 07/07/ 17 15:5 5 :22
Period 06 - 06
Fiscal Year 2017
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
(360) 876-5139
www.cityofportorchard.us
Account Number Description Bee Bal Period Amt End Bal
001
Current Expense
2,119,641.50
-92,772.96
2,026,868.54
002
City Street Fund
1,005,180.20
-31,538.80
973,641.40
003
Stabilization Fund
840,694.49
661.41
841,355.90
General Funds
3,965,516.19
-123,650.35
3,841,865.84
103
Criminal Justice
383,942.60
-2,989.09
380,953.51
104
Special Investigative Unit
65,851.52
979.66
66,831.18
107
Community Events
115,450.81
7,367.43
122,818.24
108
Paths & Trails
6,165.26
112.28
6,277.54
109
Real Estate Excise Tax
1,722,565.52
-62,192.06
1,660,373.46
III
Impact Mitigation Fee
1,231,799.10
35,811.48
1,267,610.58
Special Revenue Funds
3,525,774.81
-20,910.30
3,504,864.51
206
2003 Limited Tax GO Ref Bond
0.00
0.00
0.00
Debt Service Funds
0.00
0.00
0.00
302
Capital Construction
274,913.46
-19,218.48
255,694.98
303
Cum Res Equip Replacement
441,620.55
365.78
441,986.33
304
Street Capital Projects
1,259,896.34
189,471.97
1,449,368.31
Capital Projects Funds
1,976,430.35
170,619.27
2,147,049.62
401
Water -Sewer Utilities
2,850,047.39
60,037.82
2,910,085.21
402
Water -Sewer Equip Replace
316,623.49
267.71
316,891.20
403
Water -Sewer Cumulative Reserve
4,844,084.19
81,716.35
4,925,800.54
Water Sewer Funds
8,010,755.07
142,021.88
8,152,776.95
421
Storm Drainage Utility
1,292,076.10
-3,707.53
1,288,368.57
422
Storm Drainage Equipment Repla
151,884.24
122.38
152,006.62
423
Storm Drainage Capital Facil
697,385.80
561.95
697,947.75
Storm Drainage Funds
2,141,346.14
-3,023.20
2,138,322.94
621
1984 Refunding
4,798.15
2.28
4,800.43
631
Trust and Agency
10,312.69
24.93
10,337.62
632
Wastewater Treatment Facil Fee
2,274,026.78
27,051.88
2,301,078.66
Trust & Agency Funds
2,289,137.62
27,079.09
2,316,216.71
Grand Total
21,908,960.18
192,136.39
22,101,096.57
GL - Cash and Investment Totals (07/07/2017 - 3:55 PM) Page 1
General Ledger
Fund Balance Reserves
User: rnichols
Printed: 07/07/ 17 15:5 7:06
Period 06 - 06
Fiscal Year 2017
Account Number
Description
End Bal
109-0-508-30-01
Restricted End Fund Bal-REET 1
$
475,212.11
109-0-508-30-02
Restricted End Fund Bal-REET 2
$
1,185,161.35
109
Real Estate Excise Tax
$
1,660,373.46
111-0-508-30-00
End Restr Fund Bal-MW Trans
$
492,443.69
111-0-508-31-00
End Restr Fund Bal - Parks
$
270,374.72
111-0-508-32-00
End Restr Fund Bal - McWdParks
$
39,260.54
111-0-508-33-00
End Restr Fund Bal - Bayside
$
219,017.84
111-0-508-34-00
End Restr Fund Bal-Transportat
$
246,513.79
111
Impact Mitigation Fee
$
1,267,610.58
SOURCES AND USES OF FUNDS
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Dated Date 08/10/2017
Delivery Date 08/10/2017
Sources:
Bond Proceeds:
Par Amount
5,865,000.00
5,865,000.00
Uses:
Project Fund Deposits:
Project Fund
5,800,000.00
Cost of Issuance:
Bond Counsel
17,100.00
Placement Agent Fee
41,055.00
Bank Legal Fee
4,000.00
62,155.00
Other Uses of Funds:
Additional Proceeds
2,845.00
5,865,000.00
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 1
BOND SUMMARY STATISTICS
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Dated Date
08/10/2017
Delivery Date
08/10/2017
Last Maturity
08/01/2032
Arbitrage Yield
2.088676%
True Interest Cost (TIC)
2.088676%
Net Interest Cost (NIC)
2.090000%
All -In TIC
2.231268%
Average Coupon
2.090000%
Average Life (years)
8.371
Duration of Issue (years)
7.566
Par Amount
5,865,000.00
Bond Proceeds
5,865,000.00
Total Interest
1,026,156.04
Net Interest
1,026,156.04
Total Debt Service
6,891,156.04
Maximum Annual Debt Service
462,692.50
Average Annual Debt Service
460,177.36
Underwriter's Fees (per $1000)
Average Takedown
Other Fee
Total Underwriter's Discount
Bid Price
100.000000
Par
Average
Average
Bond Component Value
Price Coupon
Life
Term Bond 5,865,000.00
100.000 2.090%
8.371
5,865,000.00
8.371
All -In
Arbitrage
TIC
TIC
Yield
Par Value 5,865,000.00
5,865,000.00
5,865,000.00
+ Accrued Interest
+ Premium (Discount)
Underwriter's Discount
Cost of Issuance Expense
-62,155.00
- Other Amounts
Target Value 5,865,000.00
5,802,845.00
5,865,000.00
Target Date 08/10/2017
08/10/2017
08/10/2017
Yield 2.088676%
2.231268%
2.088676%
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 2
BOND PRICING
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Maturity
Bond Component Date Amount Rate Yield Price
Term Bond:
08/01/2018
330,000
2.090%
2.090%
100.000
08/01/2019
345,000
2.090%
2.090%
100.000
08/01/2020
350,000
2.090%
2.090%
100.000
08/01/2021
360,000
2.090%
2.090%
100.000
08/01/2022
365,000
2.090%
2.090%
100.000
08/01/2023
375,000
2.090%
2.090%
100.000
08/01/2024
380,000
2.090%
2.090%
100.000
08/01/2025
390,000
2.090%
2.090%
100.000
08/01/2026
400,000
2.090%
2.090%
100.000
08/01/2027
405,000
2.090%
2.090%
100.000
08/01/2028
415,000
2.090%
2.090%
100.000
08/01/2029
425,000
2.090%
2.090%
100.000
08/01/2030
435,000
2.090%
2.090%
100.000
08/01/2031
440,000
2.090%
2.090%
100.000
08/01/2032
450,000
2.090%
2.090%
100.000
5,865,000
Dated Date
08/10/2017
Delivery Date
08/10/2017
First Coupon
08/01/2018
Par Amount
5,865,000.00
Original Issue Discount
Production
5,865,000.00 100.000000%
Underwriter's Discount
Purchase Price
5,865,000.00 100.000000%
Accrued Interest
Net Proceeds 5,865,000.00
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 3
BOND DEBT SERVICE
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Dated Date 08/10/2017
Delivery Date 08/10/2017
Period
Ending
Principal
Coupon
Interest
Debt Service
08/01/2018
330,000
2.090%
119,514.04
449,514.04
08/01/2019
345,000
2.090%
115,681.50
460,681.50
08/01/2020
350,000
2.090%
108,471.00
458,471.00
08/01/2021
360,000
2.090%
101,156.00
461,156.00
08/01/2022
365,000
2.090%
93,632.00
458,632.00
08/01/2023
375,000
2.090%
86,003.50
461,003.50
08/01/2024
380,000
2.090%
78,166.00
458,166.00
08/01/2025
390,000
2.090%
70,224.00
460,224.00
08/01/2026
400,000
2.090%
62,073.00
462,073.00
08/01/2027
405,000
2.090%
53,713.00
458,713.00
08/01/2028
415,000
2.090%
45,248.50
460,248.50
08/01/2029
425,000
2.090%
36,575.00
461,575.00
08/O1/2030
435,000
2.090%
27,692.50
462,692.50
08/01/2031
440,000
2.090%
18,601.00
458,601.00
08/01/2032
450,000
2.090%
9,405.00
459,405.00
5,865,000 1,026,156.04 6,891,156.04
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 4
BOND DEBT SERVICE
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Dated Date 08/10/2017
Delivery Date 08/10/2017
Period
Ending
Principal
Coupon
Interest
Debt Service
Annual
Debt Service
08/01/2018
330,000
2.090%
119,514.04
449,514.04
449,514.04
02/01/2019
57,840.75
57,840.75
08/01/2019
345,000
2.090%
57,840.75
402,840.75
460,681.50
02/01/2020
54,235.50
54,235.50
08/01/2020
350,000
2.090%
54,235.50
404,235.50
458,471.00
02/01/2021
50,578.00
50,578.00
08/01/2021
360,000
2.090%
50,578.00
410,578.00
461,156.00
02/O1/2022
46,816.00
46,816.00
08/O1/2022
365,000
2.090%
46,816.00
411,816.00
458,632.00
02/01/2023
43,001.75
43,001.75
08/01/2023
375,000
2.090%
43,001.75
418,001.75
461,003.50
02/01/2024
39,083.00
39,083.00
08/01/2024
380,000
2.090%
39,083.00
419,083.00
458,166.00
02/O1/2025
35,112.00
35,112.00
08/O1/2025
390,000
2.090%
35,112.00
425,112.00
460,224.00
02/01/2026
31,036.50
31,036.50
08/O1/2026
400,000
2.090%
31,036.50
431,036.50
462,073.00
02/01/2027
26,856.50
26,856.50
08/01/2027
405,000
2.090%
26,856.50
431,856.50
458,713.00
02/01/2028
22,624.25
22,624.25
08/01/2028
415,000
2.090%
22,624.25
437,624.25
460,248.50
02/01/2029
18,287.50
18,287.50
08/01/2029
425,000
2.090%
18,287.50
443,287.50
461,575.00
02/01/2030
13,846.25
13,846.25
08/01/2030
435,000
2.090%
13,846.25
448,846.25
462,692.50
02/01/2031
9,300.50
9,300.50
08/01/2031
440,000
2.090%
9,300.50
449,300.50
458,601.00
02/01/2032
4,702.50
4,702.50
08/01/2032
450,000
2.090%
4,702.50
454,702.50
459,405.00
5,865,000
1,026,156.04
6,891,156.04
6,891,156.04
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 5
PROOF OF ARBITRAGE YIELD
Date
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Present Value
to 08/10/2017
Debt Service @ 2.0886763435%
08/01/2018
449,514.04
440,498.97
02/01/2019
57,840.75
56,094.92
08/01/2019
402,840.75
386,643.81
02/01/2020
54,235.50
51,516.85
08/01/2020
404,235.50
380,003.98
02/01/2021
50,578.00
47,054.74
08/01/2021
410,578.00
378,029.25
02/O1/2022
46,816.00
A2,659.14
08/01/2022
411,816.00
371,371.85
02/01/2023
43,001.75
38,377.79
08/01/2023
418,001.75
369,198.47
02/01/2024
39,083.00
34,163.13
O8/01/2024
419,083.00
362,541.62
02/01/2025
35,112.00
30,060.86
08/01/2025
425,112.00
360,194.62
02/01/2026
31,036.50
26,025.23
08/01/2026
431,036.50
357,704.12
02/01/2027
26,856.50
22,057.04
08/01/2027
431,856.50
351,014.77
02/O1/2028
22,624.25
18,199.03
08/01/2028
437,624.25
348,388.12
02/01/2029
18,287.50
14,408.02
08/01/2029
443,287.50
345,639.59
02/01/2030
13,846.25
10,684.60
08/01/2030
448,846.25
342,776.96
02/01/2031
9,300.50
7,029.24
08/01/2031
449,300.50
336,067.84
02/01/2032
4,702.50
3,481.02
08/01/2032
454,702.50
333,114.42
6,891,156.04
5,865,000.00
Proceeds Summary
Delivery date
Par Value
Target for yield calculation
08/10/2017
5,865,000.00
5,865,000.00
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 6
FORM 8038 STATISTICS
City of Port Orchard
LTGO Bond, 2017 (Bank Placement)
JP Morgan
Dated Date 08/10/2017
Delivery Date 08/10/2017
Redemption
Bond Component Date
Principal
Coupon
Price
Issue Price
at Maturity
Term Bond:
08/O1/2018
330,000.00
2.090%
100.000
330,000.00
330,000.00
08/01/2019
345,000.00
2.090%
100.000
345,000.00
345,000.00
08/01/2020
350,000.00
2.090%
100.000
350,000.00
350,000.00
08/01/2021
360,000.00
2.090%
100.000
360,000.00
360,000.00
08/01/2022
365,000.00
2.090%
100.000
365,000.00
365,000.00
08/01/2023
375,000.00
2.090%
100.000
375,000.00
375,000.00
08/01/2024
380,000.00
2.090%
100.000
380,000.00
380,000.00
08/01/2025
390,000.00
2.090%
100.000
390,000.00
390,000.00
08/01/2026
400,000.00
2.090%
100.000
400,000.00
400,000.00
08/01/2027
405,000.00
2.090%
100.000
405,000.00
405,000.00
08/01/2028
415,000.00
2.090%
100.000
415,000.00
415,000.00
08/01/2029
425,000.00
2.090%
100.000
425,000.00
425,000.00
08/01/2030
435,000.00
2.090%
100.000
435,000.00
435,000.00
08/O1/2031
440,000.00
2.090%
100.000
440,000.00
440,000.00
08/O1/2032
450,000.00
2.090%
100.000
450,000.00
450,000.00
5,865,000.00
5,865,000.00
5,865,000.00
Stated
Weighted
Maturity
Interest
Issue
Redemption
Average
Date
Rate
Price
at Maturity
Maturity
Yield
Final Maturity 08/01/2032
2.090%
450,000.00
450,000.00
Entire Issue
5,865,000.00
5,865,000.00
8.3714
2.0887%
Proceeds used for accrued interest
0.00
Proceeds used for bond issuance costs (including
underwriters' discount)
62,155.00
Proceeds used for credit enhancement
0.00
Proceeds allocated to reasonably required reserve or replacement fund
0.00
Jul 25, 2017 10:20 am Prepared by D.A. Davidson (Finance 7.017 Port Orchard:CPORTOR-2017LTB) Page 7
Purchase Cost
Purchase cost includes sales tax, finance charges, delivery charges, set-up and assembly fees, and any other related
miscellaneous charges.
4.0 Procurement of Goods and Services
Local Business
Local businesses should be encouraged to submit bids on city procurements that are open to everybody. Consistent
with RCW 39.30.040, the City may award a contract to a bidder submitting the lowest bid after such tax revenue has
been considered.
Soliciting a Specific Brand
The City may advertise for bids by specifying a particular brand name item as long as the responsible official has
exercised their judgement and determined that a certain brand name is of higher quality or is better suited to the
City's needs. There is no requirement that bid specifications naming a particular brand also include a phrase such as
"or an equal brand."
Contracting and Purchasing Limitations
1. Purchases and contracts greater than $35,000, require Council authorization.
2. Purchase limitations apply to the cost of individual items or the sum of the same items purchased at the same
time to fulfill a specific business need, which are not part of a public works project as defined by RCW 39.04.010.
3. Expenditures are required to be within budgeted authority.
4. Contracts or purchases of any amount that are not consistent with the adopted budget require Council approval.
5. No provision prevents seeking Council approval for purchases falling within the limitations.
Purchasing
Purchasing refers to purchase of goods, equipment, materials, and supplies not connected with a public works project.
Local and State:
$7,500 and under, may use minimal competition process, informal competition process, or formal competitive
bidding.
$7,501- $15,000, may use informal competition process or formal competitive bidding.
Over $15,000, must use formal competitive bidding.
Federal:
$3,500 and under, micro purchase procedures (not competitive, distributed equitably)
$3,501- $150,000, small purchase procedures (price or rate quotations)
Over $150,000, Sealed/Formal Bids
Puhlic Works
Public Works projects include all work, construction, alteration, repair, or improvement, other than ordinary
maintenance.
Local and State:
$40,000 and under (si ngle craft) or $65,000 and under (multiple craft), may use day labor, minimal competition,
informal competition, or formal competitive bidding.
City of Port Orchard Page 7 of 21 Procurement Policies & Procedures
Allan Martin
From: Mark Dorsey
Sent: Friday, July 21, 2017 9:33 AM
To: Heidi Draper; Thomas Hunter; Allan Martin; Rob Putaansuu
Subject: Fwd:
Attachments: image001.emz
From: "Gardener, Cecilia (COM)" <cecilia.gardener@commerce.wa.gov>
Subject:
Date: 20 July 2017 17:42
To: "Mark Dorsey" <mdorsey@cityofportorchard.us>
July 21, 2017
TO: Mr. Mark Dorsey
City of Port Orchard
FROM: Cecilia Gardener, Executive Director
RE: Contract Number DM13-952-185 - City of Port Orchard Well 10 Water Treatment
Project
Dear Dorsey
Unfortunately, the Public Works Board and the Department of Health has been put in the position of needing
to suspend your drinking water state revolving fund (DWSRF) loan due to lack of funding after the legislature
CI,C»CU WIU1UUL tJQDJ111r' Cl LU1/-17 Cdplldl [JUUrUL.
This memo shall serve as OFFICIAL NOTICE to City of Port Orchard_ that, in accordance
with the terms of your soar, contract, NUMBER DM13-952-185, beginning July 21, 2017, j
your contract is suspended and the Public Works Board is suspending all payment for all
work done on or after July 1, 2017, under the Contract.
This
suspension
notice will be
rescinded in
the event that a Capital Budget is enacted. You will be contacted in writing once funding becomes available.
City of Port Orchard shall immediately suspend all work funded under the Contract, and take all reasonable
steps necessary to minimize the cost of performance directly attributed to this suspension. We regret the
necessity to suspend funding.
Please contact Connie Rivera at 360-725-3008 or connie.rivera@commerce.wa.gov with any questions.
I
Washington State
Public Works Board
1011 Plum Street SE
Post Office Box 42525
Olympia, Washington 98504-2525
June 14, 2017
Kris Tompkins
Port Orchard
216 Prospect St
Port Orchard WA 98366
RE: Suspension of Work on DM13-952-185
Dear Ms Kris Tompkins:
Although the Public Works Board expects that the 2017-19 capital budget will be enacted prior to June 30, 2017,
the Washington State Legislature has not yet passed the budget for the next fiscal biennium beginning on July 1,
2017.
As a general rule, the Washington State Constitution (Article 8, Section 4) and state law (RCW 43.88.130 and
RCW 43.88.290) prohibit expenditures or commitments of state funds in the absence of appropriations of such
funds by the.Legislature. Without a budget appropriation, we cannot expend funds nor incur liabilities after
June 30, 2017.
This letter is to provide notice and inform you that in accordance with the terms of your loan, DM13-952-185,
the Public Works Board is suspending all work beginning July 1, 2017, should the re -appropriation of the state's
capital budget not be enacted by midnight on June 30, 2017.
This suspension notice is automatically rescinded in the event that the capital budget is enacted prior to
midnight on June 30, 2017. We will also provide an e-mail notification if the suspension is cancelled prior to the
effective date.
Should the June 30, 2017, deadline pass without a re -appropriation of the capital budget, Port Orchard shall
immediately suspend the work and take all reasonable steps necessary to minimize the cost of performance
directly attributable to such suspension, until the suspension is cancelled by written notice. If the suspension is
cancelled by written notice or the period of the suspension or any extension thereof expires, Port Orchard shall
resume the work.
If you have any questions, please contact your project manager at:
Connie Rivera connie.rivera@commerce.wa.gov 360-725-3088
Sincerely,
Cecilia Gardener
Public Works Board Executive Director
i
Enclosure
Administrative services provided by the Washington State Department of Commerce
(360) 725-3150 Fax (360) 586-8440 www.pwb.wa.gov
SSATf.
RECEIVED
APR 14 2017
� ifl8fl �
STATE OF WASHINGTON CITY OF PORT ORCHARD
DEPARTMENT OF COMMERCE PUBLIC WOWS
1011 Plum Street SE • PO Box 42525 •Olympia, Washington 98504-2525 • (360) 725-4000
www.commerce.wa.gov
April 10, 2017
Mark Dorsey
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
RE: Drinking Water State Revolving Fund Loan Number DM13-952-185
Dear Mark:
Enclosed is a fully executed amendment A for your Drinking Water State Revolving Fund Loan
Number DM13-952-185.
The purpose of amendment A is to revise the Scope of Work of the above referenced Drinking
Water State Revolving Fund.
If you have any questions or need additional information, please do not hesitate to call me at
(360) 725-3175 or email me at chuck.hunter@commerce.wa.gov.
Chuck Hunter
Federal Programs Unit
Project Manager
Enclosures
DECLARATIONS
CLIENT INFORMATION
Legal Name:
Loan Number:
Amendment:
PROJECT INFORMATION
Project Title:
Project City:
Project State:
Project Zip Code:
LOAN INFORMATION
Loan Amount:
Loan Term:
Interest Rate:
Payment Month:
Earliest Date for Construction Reimbursement:
Time of Performance
City of Port Orchard
DM13-952-186
A
City of Port Orchard Well 10 Water Treatment
Project
Port Orchard
Washington
98366
$ 6,060,000.00
24 years
1.50%
October 1
7/1/2013
48 months from Contract execution date to
Project Completion date.
SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT
none
Scope of Work (revised):
The primary elements of the project include:
1. Well 13 Water Campus Improvements.
a. Well 13. Drill a new Well 13 on City -owned property adjacent to the existing Sedgwick Reservoir
In the southeast section of the City's water supply area. Equip with high -efficiency, variable speed
well pumps.
b. Conveyance. Well 13 discharge will be treated onsite and discharged into the existing Sedgwick
Reservoir.
c. Water Treatment Facility. Construct a new water treatment facility at the Well 13 site, including a
new building with pressure filters, fluoridation and disinfection.
d. Additional project elements include telemetry and instrumentation, controls, standby electrical
generator, landscaping, parking, fencing, security improvements, site work and site restoration.
2. Conveyance.
a. Water will be conveyed from the Sedgwick Reservoir through existing pipelines to an intertie
with a new pipeline on the east edge of Blackjack Creek ravine.
b. A new 12-inch diameter pipeline will convey water south to a connection point with existing
piping at the existing Well 6 site. Road and slope stabilization along the pipeline route will be
included.
3.Overall project activities will include, but not be limited to, engineering and design, cultural and
historical resources review, environmental review, permits, public involvement, bid documents,
construction administration, staking, site work and facility construction.
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Washington State
Public Works Board
1011 Plum Street SE
Post Office Box 42525
Olympia, Washington 98504-2525
Capital Agreement between:
City of Port Orchard
and
Public Works Board
For:
Project Name: City of Port Orchard Well 10 Water Treatment Proje
Loan Number: DM13-952-185
Loan Type: DWSRF NT
Contract Start Date: Contract Execution Date
Department of Commerce
Innovation is in our nature.
Washington State Department of Commerce
www.commerce.wa.gov
DECLARATIONS
CLIENT INFORMATION
Legal Name:
Loan Number:
Award Year:
State Wide Vendor Number:
PROJECT INFORMATION
Project Title:
Project City:
Project State:
Project Zip Code:
LOANINFORMATION
Loan Amount:
Loan Fee (Included in loan amount if applicable)
Loan Forgiveness %:
Loan Term:
Interest Rate:
Payment Month:
Earliest Date for Construction Reimbursement:
Time of Performance
City of Port Orchard
DM13-952-186
2013
SWV0026665
City of Port Orchard Well 10 Water Treatment
Proje
Port Orchard
Washington
98366
$6,060,000.00
$60,000.00
0%
24 years
1.50%
October 1 st
7/112013
48 months from Contract execution date to
Project Completion date.
SPECIAL TERMS AND CONDITIONS GOVERNING THIS LOAN AGREEMENT
none
LOAN SECURITY CONDITION GOVERNING THIS LOAN AGREEMENT
This loan is a revenue obligation of the Contractor payable solely from the net revenue of the
Water 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 Contract. This option may be used only if the entire project is a domestic
water, sanitary sewer, storm sewer, or solid waste utility project.
City of Port Orchard Page 2
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
DECLARATIONS (continued)
Loan Number: DM13-952-185
Project Title: City of Port Orchard Well 10 Water Treatment
Proje
Scope of Work:
Well Site # 10
The City of Port Orchard Well 10 Water Treatment Project provides a long term solution to
declining yields from existing City wells, reduces dependency on neighboring water system to
meet peak day demands and improves both water quality and system reliability. The project
generally Includes improvements at the Well 10 site to bring the recently constructed well into full
production, transmission of raw water from Well 10 to the Well 6 site, construction of a new
facility to treat water from Wells 10 and 6 and pumping and transmission of finished water to the
local distribution system. Improvements at the Well 10 site include a new well house, site work,
Instrumentation, high -efficiency variable -speed well pump, piping, telemetry, controls, stand-by
generator, landscaping, parking, fencing, security improvements and site restoration.
Approximately 3,300 linear feet (LF) of 12-inch diameter transmission main will be installed from
Well 10 to the existing Well #6 site via Perry Avenue and Maple Avenue. Restoration of Perry
Avenue after the pipe is Installed will include slope stabilization as well as new pavement, curb
and gutter.
Well Site #6 The
new treatment plant at the existing Well 6 site will replace a deteriorated and deficient treatment
facilities and receive raw water from Wells 6 and 10. The new, centralized treatment facility will
include installation of a new treatment building with a lab/office, clearwell with dispersion,
chemical equipment, piping, vertical pressure filters, instrumentation, telemetry and controls, an
emergency generator and all required, site work, parking. landscaping, fencing, security
Improvements and site restoration. The project also includes installation of high -efficiency
pumps and approximately 2,600 LF of 12-inch diameter transmission main that will deliver
finished (treated) water to the two pressure zones (390 and 260) serving the main portion of the
City. Additional road and slope stabilization will be accomplished as part of the finished water
transmission main. Project activities include, but are not limited to, engineering and design,
cultural and historical resources review, environmental review, permits, public involvement, bid
documents, construction administration, staking, site work, and facility construction.
City of Port Orchard Page 3
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
City of Port Orchard Page 4
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
CONTRACT FACE SHEET
Contract Number: DM13-952-185
Drinking Water State Revolving Fund (DWSRF)
2013 New Traditional
(Municipal)
1. Contractor
2. Contractor Doing Business As (optional)
City of Port Orchard
N/A
216 Prospect Street
Port Orchard, WA 98366
3. Contractor Representative
4. Public Works Board Representative
NIA
N/A
S. Contract Amount
6. Funding Source
7. Contract Start Date
8. Contract End Date
$6,060,000.00
Federal: ® State: ❑
Contract Execution Date
Oct 1,2037
Other: ❑ NIA: ❑
9. Federal Funds (as applicable) Federal Agency CFDA Number
N/A EPA 66.468
10. Tax ID #
11. SWV #
12. UBI #
13. DUNS #
N/A
SWV0025665-00
1081932790
14. Contract Purpose
The purpose of this Contract is to provide funding for a project of a local government that furthers the goals
and objectives of the Drinking Water State Revolving Fund Loan Program. The project will be undertaken by
the Contractor and will include the activities described in the Declared Scope of Work.
The Board, defined 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: Contractor Terms and Conditions
including Declarations Page; Attachment 1: Attorney's Certification; Attachment II: Federal and State
Requirements; Attachment III: Disadvantaged Business Enterprise Requirements; Attachment IV: Certification
Regarding Debarment, Suspension, and Other Responsibility Matters; Attachment V: DWSRF Eligible Project
Costs; and Attachment VI: Labor Standard Provisions for Subreci Tents that are Governmental Entities.
FOR THE CONTRACTOR
FOR PUBLIC WORKS BOARD
Stan Finkelstein, Public Works Board Chair
Signature
i .��t.,v
14 "/- / Z
Da
APPROVED AS TO FORM ONLY
Print Name
Title lov
l/
"41 - l d
This 18th Day of February. 2014
Bob Ferguson
Date
Attorney General
Signature on file
Kathryn Wyatt
Assistant Attorney General
City of Port Orchard Page 5
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
TABLE OF CONTENTS
CONTRACT TITLE PAGE
CONTRACT DECLARATIONS
CONTRACT FACE SHEET
TABLE OF CONTENTS
Part 1. SPECIAL TERMS AND CONDITIONS
1
2
5
7
1.1.
DEFINITIONS
11
1.2.
AUTHORITY
11
1.3.
PURPOSE
11
1.4.
ORDER OF PRECIDENCE
12
1.5.
AMOUNT OF LOAN
12
1.6.
LOAN FEE
12
1.7.
TERM OF LOAN
12
1.8.
RATE AND LOAN FORGIVENESS
12
1.9.
DISBURSEMENT OF LOAN PROCEEDS AND REQUIRED DOCUMENTATION
12
1.10.
TIME OF PERFORMANCE
14
1.11.
PROJECT COMPLETION AMENDMENT AND THE CERTIFIED PROJECT COMPLETION REPORT
14
1.12.
REPAYMENT
14
1.13.
DEFAULT IN REPAYMENT
14
1.14.
LOAN SECURITY
15
1.15.
HISTORICAL AND CULTURAL ARTIFACTS
15
1.16.
FEDERAL AND STATE REQUIREMENTS
16
1.17.
COMPETITIVE BIDDING REQUIREMENTS
16
1.18.
ELIGIBLE PROJECT COSTS
16
1.19.
PREVAILING WAGE
16
1.20.
SUSPENSION AND DEBARMENT
17
1.21.
REGISTRATION WITH CENTRAL CONTRACTOR REGISTRATION (CCR)
17
1.22.
RECORDKEEPING AND ACCESS TO RECORDS
17
1.23.
REPORTS
17
1.24.
AMENDMENTS, MODIFICATIONS, ASSIGNMENTS, AND WAIVERS
18
1.25.
TERMINATION FOR CONVENIENCE
18
1.26.
TERMINATION FOR CAUSE
18
1.27.
AUDIT
19
1.28.
PROJECT SIGNS
19
1.29.
DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS
19
1.30.
NONDISCRIMINATION PROVISION
20
1.31.
PROHIBITION STATEMENT
20
1.32.
FALSE, INCORRECT, OR INCOMPLETE INFORMATION OR CLAIM
20
1.33.
LITIGATION
21
1.34.
ESTABLISHMENT OF ADEQUATE RATES AND RESERVES
21
City of Port Orchard Page 6
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
1.35. SPECIAL CONDITIONS
1.36. INVESTMENT GRADE AUDIT
1.37. BUY AMERICAN
Part 2. GENERAL TERMS AND CONDITIONS
2.1. DEFINITIONS
2.2. ADMINISTRATIVE COST ALLOCATION
2.3. ALLOWABLE COSTS
2.4. ALL WRITINGS CONTAINED HEREIN
2.5. AMENDMENTS
2.6. AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the
"ADA" 28 CFR Part 35
2.7. APPROVAL
2.8. ASSIGNMENT
2.9. ATTORNEYS' FEES
2.10. AUDIT
2.11. CERTIFICATION REGARDING DEBARMENT, SUSPENSION OR INELIGIBILITY AND VOLUNTARY
EXCLUSION —PRIMARY AND LOWER TIER COVERED TRANSACTIONS
2.12. CODE REQUIREMENTS
2.13. CONFIDENTIALITY/SAFEGUARDING OF INFORMATION
2.14. CONFORMANCE
2.15. COPYRIGHT PROVISIONS
2.16. DISALLOWED COSTS
2.17. DISPUTES
2.18. DUPLICATE PAYMENT
2.19. ETHICS/CONFLICTS OF INTEREST
2.20. GOVERNING LAW AND VENUE
2.21. INDEMNIFICATION
2.22. INDEPENDENT CAPACITY OF THE CONTRACTOR
2.23. INDUSTRIAL INSURANCE COVERAGE
2.24. LAWS
2.25. LICENSING, ACCREDITATION AND REGISTRATION
2.26. LIMITATION OF AUTHORITY
2.27. LOCAL PUBLIC TRANSPORTATION COORDINATION
2.28. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
2.29. NOTIFICATION OF TENANT RIGHTS/RESPONSIBILITIES
2.30. POLITICAL ACTIVITIES
2.31. PREVAILING WAGE LAWS
2.32. PROCUREMENT STANDARDS FOR FEDERALLY FUNDED PROGRAMS
2.33. PROHIBITION AGAINST PAYMENT OF BONUSES OR COMMISSION
2.34, PUBLICITY
2.35. RECAPTURE
City of Port Orchard Page 7
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
21
21
21
23
23
23
23
23
23
23
24
24
24
25
26
26
26
26
27
27
27
27
27
28
28
28
28
30
31
31
31
31
31
31
31
32
32
33
2.36.
RECORDS MAINTENANCE
33
2.37.
REGISTRATION WITH DEPARTMENT OF REVENUE
33
2.38.
RIGHT OF INSPECTION
33
2.39.
SAVINGS
33
2.40.
SEVERABILITY
33
2.41.
SUBCONTRACTING
33
2.42.
SURVIVAL
34
2.43.
TAXES
34
2.44.
TERMINATION FOR CAUSE / SUSPENSION
34
2.45.
TERMINATION FOR CONVENIENCE
34
2.46.
TERMINATION PROCEDURES
34
2.47.
WAIVER
35
2.48.
WORK HOURS AND SAFETY STANDARDS
35
ATTACHMENT I: ATTORNEY'S CERTIFICATION.......................................................................................... 37
ATTACHMENT II: FEDERAL AND STATE REQUIREMENTS.......................................................................... 39
ATTACHMENT III: DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS ..................................... 41
ATTACHMENT IV: CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS............................................................................................................................ 43
ATTACHMENT V: DWSRF ELIGIBLE PROJECT COSTS.................................................................................. 45
ATTACHMENT VI: LABOR STANDARD PROVISIONS FOR SUBRECIPIENTS THAT ARE
GOVERNMENTAL ENTITIES........................................................................................................................... 47
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CONTRACT TERMS AND CONDITIONS
DRINKING WATER STATE REVOLVING FUND
NEW TRADITIONAL
(MUNICIPAL)
Part 1. SPECIAL TERMS AND CONDITIONS
1.1. DEFINITIONS
As used throughout this Drinking Water State Revolving Fund Loan Contract, the following terms shall
have the meaning set forth below:
A. "Contract" shall mean this Drinking Water State Revolving Fund Loan.
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. "Department of Health" shall mean the Washington State Department of Health, Office of
Drinking Water, who is the recipient of the Drinking Water State Revolving Fund grant and
regulates drinking water systems in the State of Washington.
E. "Department of Commerce" and "Commerce" shall mean the Washington State Department of
Commerce.
F. AWARD YEAR shall mean the calendar year in which the funds were awarded to the Board for
use in making loans under this program
G. PAYMENT MONTH shall mean the day and month of the year in which payments are due.
H. Unless otherwise amended, the CONTRACT END DATE shall occur in the final year of the
LOAN TERM, as counted from the AWARD YEAR. The actual date of contract execution shall
have no effect on the CONTRACT END DATE.
I. "Deferral Period" shall be from the date of contract execution until the date of project completion.
The Deferral Period shall not exceed 4 years in length.
J. 'Iron and steel products" means the following products made primarily of iron or steel: lined or
unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges,
pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction
materials.
1.2. AUTHORITY
Acting under the authority of RCW 70.119A.170 and RCW 43.155.040, the Board has awarded the
Contractor a Drinking Water State Revolving Fund loan for an approved project. The Contractor will be a
sub -recipient of funds provided by the United States Environmental Protection Agency, CFDA Number
66.468, Title: Safe Drinking Water State Revolving Fund, award year of this contract.
1.3. PURPOSE
The Board and the Contractor have entered into this Contract to undertake a local project that furthers the
goals and objectives of the Drinking Water State Revolving Fund Loan 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 Program Special
Terms and Conditions and all applicable federal, state and local laws and ordinances, including but not
limited to those specifically enumerated in Attachment II: Federal and State Requirements, which by this
reference are incorporated into this Contract as though set forth fully herein.
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1.4. ORDER OF PRECIDENCE
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. AMOUNT OF LOAN
The Board, using funds appropriated from the Drinking Water Assistance Account, shall loan the
Contractor a sum not to exceed the amount shown as LOAN AMOUNT on the attached Declarations
Page. This loan amount includes a loan fee, if applicable, which is shown on the Declarations Page as
LOAN FEE.
1.6. LOAN FEE
If the loan fee applies, it will be assessed at loan execution.
The amount of the loan fee (if applicable) represents one percent (1 %) of the loan request and shall not
be reduced, regardless of the actual final loan amount at project completion. If the loan fee applies and
the total loan amount is increased by amendment, an additional loan fee equal to one percent (1 %) of the
additional loan amount will be assessed at amendment execution. The amount of any loan fee will be
displayed on the Declarations Page as LOAN FEE.
1.7. TERM OF LOAN
Unless otherwise amended, the term of the loan shall not exceed the period shown on the Declarations
Page as LOAN TERM. The term shall start in the AWARD YEAR.
1.8. RATE AND LOAN FORGIVENESS
The interest rate shall be the declared INTEREST RATE per annum on the outstanding principal balance,
based on a three hundred and sixty (360) day year composed of twelve (12) thirty (30) day months. The
amount of loan forgiveness (if applicable) shall be as stated on the attached Declarations Page, and
identified therein as LOAN FORGIVENESS %.
This loan forgiveness shall be applied at project completion and shall apply to the lesser of the loan
amount or the actual eligible costs and that declared percent on any accrued interest. The percent of loan
forgiveness and interest rate shall not be changed, regardless of the actual cost of the project and the
Affordability Index at project completion.
1.9. DISBURSEMENT OF LOAN PROCEEDS AND REQUIRED DOCUMENTATION
If funding or appropriation is not available at the time the Contractor submits a request for a loan
disbursement, the issuance of a warrant will be delayed or suspended until such time funds become
available. Therefore, subject to availability of funds, warrants shall be issued to the Contractor for
payment of allowable expenses incurred by the Contractor while undertaking and administering approved
project activities in accordance with the declared SCOPE OF WORK.
The loan funds will be disbursed to the Contractor as follows:
Ten percent (10%) of loan proceeds will be held until project completion. The total Drinking Water State
Revolving Fund Loan shall not exceed one hundred percent (100%) of the actual eligible project costs.
When requesting reimbursement for costs incurred, the Contractor shall submit a signed and completed
Invoice Voucher (Form Al 9), referencing the declared SCOPE OF WORK project activity performed, and
any appropriate documentation such as bills, invoices, and receipts. The purchase of any land necessary
and integral to the project must be included in the declared SCOPE OF WORK and be documented with
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an appraisal or other market valuation and a valid purchase and sale agreement. The Invoice Voucher
must be certified by an official of the Contractor with authority to bind the Contractor.
Each Al Reimbursement Voucher must be accompanied by a Project Status Report, which describes, in
narrative form, the progress made on the project since the last invoice was submitted, as well as a report
of project status to date. The Department of Commerce (Commerce) will not release payment for any
reimbursement request received until the Project Status Report is received. After approving the Voucher
and the Project Status Report, Commerce shall promptly release funds to the Contractor.
Construction expenses incurred after the date shown as EARLIEST DATE FOR CONSTRUCTION
REIMBURSEMENT on the Declarations Page are eligible for reimbursement. Requests for
reimbursements for costs related to construction activities will not be accepted until the Contractor has
met the following conditions:
A. Issued a Notice to Proceed which follows the formal award of a construction contract;
B. Completed the State Environmental Review Process;
C. Complied with all provisions of Section 106 of the National Historic Preservation Act of 1966;
D. Complied with Section 1.19: Prevailing Wage;
E. Obtained approval from the Department of Health of the project report and related construction
documents for all applicable activities described in the declared SCOPE OF WORK; and
F. Complied with any other loan conditions required by Department of Health or The Board.
An electronic copy (emailed PDF or a FAX) of a signed Al Reimbursement Voucher and other required
documentation is the preferred method for requesting reimbursement. Submit the electronic requests to
your Contracts Administration Unit (CAU) representative or fax to 360-586-8440. This electronic submittal
may be 25 pages or less. If you choose to send your vouchers and backup documentation electronically,
please DO NOT mail in the original. You will receive email notification from your CAU representative that
the electronic request has been received.
Commerce will pay the Contractor upon acceptance of the work performed and receipt of properly
completed invoices. Invoices may be submitted to Commerce not more often than monthly.
Payment shall be considered timely if made by Commerce 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, 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.
In the event that the Contractor receives reimbursement for costs that are later determined by the Board
to be ineligible, these funds shall be repaid to the Drinking Water Assistance Account by payment to the
Department of Commerce, or its successor, together with the submission of the Project Completion
Amendment.
At the time of project completion, the Contractor shall submit to the Board a Certified Project Completion
Request certifying the total actual project costs, and a final voucher for the remaining eligible funds. The
Certified Project Completion Request shall include a copy of the Construction Completion Report as
submitted to Department of Health.
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1.10. TIME OF PERFORMANCE
The Contractor shall begin the activities identified within the declared SCOPE OF WORK no later than
thirty (30) days after Contract execution. The Contractor must reach project completion within the period
specified on the Declarations Page as TIME OF PERFORMANCE.
Failure to meet Time of Performance within the time frame described in this section shall constitute default
under this Contract, and as a result, this Contract may be terminated. In the event of extenuating
circumstances, the Contractor may request, in writing, at least 90 days prior to the expiration of project
completion date that the Board extend the deadline for project completion. The Board may extend the time
of project completion.
1.11. PROJECT COMPLETION AMENDMENT AND THE CERTIFIED PROJECT COMPLETION REPORT
The Contractor shall initiate a Project Completion Amendment by submitting a Certified Project
Completion Report when activities identified in the declared SCOPE OF WORK are complete and the
Contractor agrees that no additional eligible costs will be reimbursed.
In the Project Completion Amendment, the Contractor will provide the following information to the Board:
A. A certified statement of the actual dollar amounts spent, from all fund sources, in completing the
project as described in the declared SCOPE OF WORK.
B. Certification that all costs associated with the project have been incurred. Costs are incurred
when goods and services are received and/or contract work is performed.
C. A copy of the Department of Health Construction Completion Report as submitted to Department
of Health.
D. Evidence documenting compliance with audit requirements as referenced in Section 1.27,
E. A final voucher for the remaining eligible funds.
The Project Completion Amendment shall serve as an amendment to this Contract determining the final
loan amount and term of the loan.
1.12, REPAYMENT
Pursuant to 40 CFR, Section 35.3525 (a)(1)(i), an assistance recipient begins annual repayment of
principal and interest no later than one year after the DEFERRAL PERIOD end date. The first repayment
installment of principal and any interest accrued to date under this Contract is due on the month declared
as PAYMENT MONTH on the Declarations Page, of the first twelve (12) months following the DEFERRAL
PERIOD. All subsequent payments shall consist of principal and accrued interest due on that month 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.
Interest will begin to accrue from the date each payment is issued to the Contractor. The final payment
shall be on or before the completion of the declared LOAN TERM, payable on or before the declared
PAYMENT MONTH of an amount sufficient to bring the loan balance to zero. Under no circumstances
shall the loan repayment period exceed 20 years from the DEFERRAL PERIOD end date.
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.
1.13. DEFAULT IN REPAYMENT
Loan repayments shall be made in accordance with Section 1.12 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 (18) day past the due date. The penalty will be one
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percent (1%) per month or twelve percent (12%) per annum of the delinquent payment amount. These
same penalty terms shall apply if the repayment of loan funds determined to be ineligible costs are not
repaid within thirty (30) days as provided for in Section 1.9.
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. Contractor shall be responsible for all legal fees incurred by the Board in any action undertaken
to enforce its rights under this section.
1.14. LOAN SECURITY
Loan Security may be required as a performance condition of this contract. If such performance condition
is required it shall be indicated on the attached Declarations Page and identified therein as LOAN
SECURITY CONDITION.
The BOARD grants the Contractor the right to issue future bonds and notes that constitute a lien and
charge on the revenue source superior to the lien and charge of this Loan Contract. Nothing in this
section shall absolve the Contractor of its obligation to make loan repayments when due, and to adjust
rates, fees, or surcharges, if necessary, to meet its obligations under this Contract.
1.15. HISTORICAL AND CULTURAL ARTIFACTS
The Contractor acknowledges that the project funded by this Contract is subject to Section 106 of the
National Historic Preservation Act of 1966.
Contractor agrees that Contractor is legally and financially responsible for compliance with all laws,
regulations, and agreements related to the preservation of historical or cultural artifacts and agrees to hold
harmless the State of Washington in relation to any claim related to such historical or cultural artifacts
discovered, disturbed, or damaged as a result of Contractor's public works project funded under this
Contract.
The Contractor agrees that, in no case shall construction activities, ground disturbance, or excavation of any
sort, begin until the Contractor has complied with all provisions of Section 106 of the National Historic
Preservation Act of 1966, as amended.
In addition, the Contractor shall not conduct or authorize destructive project planning activities before
completing compliance with Section 106 of the National Historic Preservation Act of 1966, as amended.
If historical or cultural artifacts are discovered during construction, the Contractor shall immediately stop
construction and implement reasonable measures to protect the discovery site from further disturbance,
take reasonable steps to ensure confidentiality of the discovery site, restrict access to the site, and notify
the concerned tribe's cultural staff or committee, Tribal Historical Preservation Officer (THPO), Cultural
Resources Program Manager at Washington State Department of Health, and the State's Historical
Preservation Officer (SHPO) at the Washington State Department of Archaeology and Historic Preservation
(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 the concerned tribe's cultural staff
or committee and DAHP.
The Contractor shall require the above provisions to be contained in all contracts for work or services related
to the declared SCOPE OF WORK. In no case shall construction activities begin until the Contractor has
complied with all provisions of Section 106 of the National Historic Preservation Act of 1966.
In addition to the requirements set forth in this Contract, the Contractor agrees to comply with Native
American Graves Protection and Repatriation Act, Archaeological Resources Protection Act, Revised Code
of Washington (RCW) 27.44 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
Washington Administrative Code (WAC) 25-48 regarding Archaeological Excavation and Removal Permits,
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1.16. FEDERAL AND STATE REQUIREMENTS
The Contractor assures compliance with all applicable federal, state and local laws, requirements, and
ordinances as they pertain to the design, implementation, and administration of the approved project,
including but not limited to those listed in Attachments ll, III, and IV.
1.17. COMPETITIVE BIDDING REQUIREMENTS
Pursuant to 40 CFR, Section 33.501(b) and (c), the Contractor also agrees to create and maintain a
bidders list for both Disadvantaged Business Enterprises (DBE) and Non -Disadvantaged Business
Enterprises (non -DBE). The purpose of a bidders list is to provide the recipient and entities receiving
identified loans who conduct competitive bidding with as accurate a database as possible about the
universe of DBE and non -DBE prime and subcontractors. The list must include all firms that bid or quote
on prime contracts, or bid or quote subcontracts on Environmental Protection Agency assisted projects,
including both DBE and non -DBE. The bidders list must be kept at least until the grant project period has
expired and the recipient is no longer receiving Environmental Protection Agency funding under the grant
For entities receiving identified loans, the bidders list must only be kept until the project period for the
identified loan has ended. The following information must be obtained from all prime and subcontractors:
entity's name with point of contact; entity's mailing address, telephone number, and e-mail address; the
procurement on which the entity bid or quoted, and when; and entity's status as a DBE or non -DBE.
The Contractor agrees to provide Environmental Protection Agency Form 6100-2 DBE Subcontractor
Participation and Environmental Protection Agency Form 6100-3 DBE Subcontractor Performance to all
its Disadvantaged Business Enterprise subcontractors.
The Contractor shall require Disadvantaged Business Enterprise provisions are contained in all contracts
with any subcontractors for work or services related to the declared SCOPE OF WORK.
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 Drinking Water State Revolving
Fund program.
1.18. ELIGIBLE PROJECT COSTS
The Contractor assures compliance with Attachment V: DWSRF Eligible Project Costs, which identifies
eligible costs for projects funded by Drinking Water State Revolving Fund loans.
1.19. PREVAILING WAGE
These terms supersede the terms in Section 2.31. Prevailing Wage Laws in General Terms and
Conditions.
All contractors and subcontractors performing work on a construction project funded through this Contract
shall comply with prevailing wage laws by paying the higher of state or federal prevailing wages according
to:
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 Board's review upon request; or
The Davis Bacon Act, 40 U.S.C. 276a-276a-5 and related federal acts provide that all laborers and
mechanics employed by contractors or subcontractors in the performance shall be paid wages at
rates not less than those prevailing on similar construction in the locality as determined by the
Secretary of Labor.
The Contractor agrees that the Contractor is legally and financially responsible for compliance with the
prevailing wage requirements. Contractor is advised to consult the United States Department of Labor and
Washington State Department of Labor and Industries websites to determine the federal and State
prevailing wages that must be paid.
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The Contractor shall ensure that all contractors, subcontractors, engineers, vendors, and any other entity
for work or services listed in the declared SCOPE OF WORK shall insert in full, in any contract, the labor
standards provisions listed in Attachment VI: Labor Standard Provisions For Subrecipients That Are
Governmental Entities. Contractor shall report to the Board and/or the Department of Health that this
requirement has been met as stated in this Contract.
1.20. FEDERAL EXCLUSION
These Terms add to the terms in Section 2.11. Certification Regarding Debarment, Suspension or
Ineligibility and Voluntary Exclusion — Primary and Lower Tier Covered Transactions in General Terms
and Conditions. The Contractor also agrees to access the Federal Exclusion List at www.sam.gov and
provide Federal Exclusion documentation to the Board and to keep a copy on file with the Contractor's
project records.
1.21. REGISTRATION WITH CENTRAL CONTRACTOR REGISTRATION (CCR)
By signing this Contract, the Contractor accepts the requirements stated in 48 CFR 52.204-7 to register with
the Central Contractor Registration (CCR) database at the System for Awards Management (SAM)
website. To register in SAM, a valid Data Universal Numbering System (DUNS) Number is required. The
Contractor is responsible for the accuracy and completeness of the data within the SAM database and for
any liability resulting from the Government's reliance on inaccurate or incomplete data. The Contractor must
remain registered in the SAM database after the initial registration. The Contractor is required to review and
update on an annual basis from the date of initial registration or subsequent updates its information in SAM
to ensure it is current, accurate and complete. The Contractor shall provide evidence documenting
registration and renewal of SAM registration to the Board.
In the event of the Contractor's noncompliance or refusal to comply with the requirement stated above, the
Board reserves the right to suspend payment until the Contractor cures this noncompliance.
1.22. RECORDKEEPING AND ACCESS TO RECORDS
These terms supersede the terms in Section 2.36. Records Maintenance in General Terms and
Conditions.
The Board, the Board's agents, and duly authorized officials of the state and federal governments shall have
full access and the right to examine, copy, excerpt, or transcribe any pertinent documents, papers, records,
and books of the Contractor and of persons, firms, or organizations with which the Contractor may contract,
involving transactions related to this project and this Contract.
The Contractor agrees to retain these records for a period of six (6) years from the date that the debt is
retired. This includes but is not limited to financial reports. 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.
1.23. REPORTS
The Contractor, at such times and on such forms as the Board may require, shall furnish the Board with
such periodic reports as it may request pertaining to the activities undertaken pursuant to this Contract
including, but not limited to:
A. Prevailing Wage decisions and/or changes;
B. Disadvantaged Business Enterprises utilization;
C. Project Status Reports with each Invoice Voucher,
D. Certified Project Completion Report at project completion (as described in Section 1.11), and
E. Other reports as the Board may require.
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In the event of the Contractor's noncompliance or refusal to comply with the requirement stated above, the
Board reserves the right to suspend payment until the Contractor cures this noncompliance.
1.24. AMENDMENTS MODIFICATIONS ASSIGNMENTS AND WAIVERS
Amendments, modifications, assignments, and waivers to any of the terms of this contract supersede
those terms as found in the original contract.
The Contractor may request an amendment of this Contract for the purpose of modifying the declared
SCOPE OF WORK or for extending the time of performance as provided for in Section 1.10. Any revision
to the scope of work or location of the project must be approved by the Department of Health. No
modification or amendment resulting in an extension of time shall take effect until a request has been
received and approved by the Board in accordance with Section 1.10.
During the term of this loan, any change in ownership of the water systems) improved with funds
received by the Contractor under this Contract must be approved in writing by the Board. As a
condition of approval, the Board reserves the right to demand payment in full of the outstanding
principal balance of the loan.
No conditions or provisions of this Contract may be waived unless approved by the Board in writing. No
waiver of any default or breach by any party shall be implied from any failure to take action upon such
default or breach, if the default of breach persists or repeats.
1.25. TERMINATION FOR CONVENIENCE
These terms supersede the terms in Section 2.45. Termination for Convenience in General Terms and
Conditions.
The Board may terminate this Contract in the event that federal or 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.
The Board shall notify the Contractor in writing of its determination to terminate and the reason for such
termination. The effective date of the termination will be determined by the Board. 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. Nothing in this section shall
affect Contractor's obligations to repay the unpaid balance of the loan.
1.26. TERMINATION FOR CAUSE
These terms supersede the terms in Section 2.44. Termination for Cause/Suspension in General Terms
and Conditions.
If the Board concludes that the Contractor has failed to comply with the terms and conditions of this
Contract, or has failed to use the loan proceeds only for those activities identified in the declared SCOPE
OF WORK, or has otherwise materially breached one or more of the covenants in this Contract, the
Board may at any time, at its discretion, upon notice to the Contractor, terminate the Contract and/or its
attached agreements in whole or in part and declare the entire remaining balance of the loan, together
with any interest accrued, immediately due and payable in full.. Such Notice of Termination for Cause
shall be in writing, shall state the reason(s) for such termination, and shall specify the effective date of the
termination. The effective date of the termination will be determined by the Board. Such notice shall
inform the Contractor of the breach of the relevant covenant and shall allow the Contractor at least thirty
(30) business days to cure such breach, if curable. The notice shall instruct the Contractor that, if the
breach is not cured or cannot be cured within thirty (30) business days, the outstanding balance of the
loan shall be due and payable. 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. Nothing in this section shall affect the Contractor's obligations to immediately repay
the unpaid balance of the loan as prescribed in the Washington Administrative Code (WAC) 246-296-150
1.27. AUDIT
These terms supersede the terms in Section 2.10. Audit in General Terms and Conditions.
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Municipal and Not -For -Profit entities:
Audits of the Contractor's project activities may be conducted by the State Auditor Office
(SAO). Audit costs are eligible project costs. The Contractor shall maintain its records and
accounts so as to facilitate the audit requirements of the Board or its successor. The
Contractor is responsible for any audit findings incurred by its own organization. The Board
reserves the right to recover from the Contractor all disallowed costs resulting from the audit.
In addition, Contractor's expending $500,000 or more in any fiscal year in federal funds from
all sources, direct and indirect, are required to have an audit conducted in accordance with
Office of Management and Budget (OMB) Revised Circular A-133 "Audits of States, Local
Governments, and Non -Profit Organizations."
For -Profit entities:
A report on the internal control related to the federal program, which should describe the scope
of testing of the internal control and the results of the tests.
A report on compliance, which includes an opinion (or disclaimer of opinion) on whether the
auditee complied with laws, regulations and the provisions of the award agreement that could
have a direct and material effect on the federal program.
The Contractor must send a copy of any required audit Reporting Package as described in OMB Circular
A-133, Part C, Section 320(c) no later than nine (9) months after the end of the Contractor's fiscal year(s)
to:
Department of Commerce
ATTN: Public Works Board
P.O. Box 42525
1011 Plum Street SE
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.
1.28. PROJECT SIGNS
If the Contractor displays, during the period covered by this Contract, any signs or markers identifying
those entities participating financially in the approved project, the sign or marker must identify the
Washington State Public Works Board Drinking Water State Revolving Fund, and the Washington State
Department of Health, as participants in the project.
1.29. DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS
As mandated by the Environmental Protection Agency, the Contractor agrees to comply with the
requirements of the Environmental Protection Agency's Program for Utilization of Small, Minority, and
Women's Business Enterprises in procurement under this Contract. The Contractor is required to follow
the requirements identified in Attachment III: Disadvantaged Business Enterprise Requirements.
By signing this Contract, the Contractor accepts the applicable MBE/WBE fair share objectives/goals
negotiated with Environmental Protection Agency by the Washington State Office of Minority and
Women's Business Enterprises. The Contractor attests to the fact that it is purchasing the same or similar
construction, supplies, services and equipment, in the same or similar relevant geographic buying market
as Washington State Office of Minority and Women's Business Enterprises. The goals for the utilization of
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disadvantaged businesses are stated in ATTACHMENT III: DISADVANTAGED BUSINESS ENTERPRISE
REQUIREMENTS.
The Contractor is required to furnish the Board and the Department of Health with such periodic reports
as the Department may request pertaining to the utilization of disadvantaged businesses.
1.30. NONDISCRIMINATION PROVISION
During the performance of this contract, the Contractor shall comply with all federal and state
nondiscrimination laws, including, but not limited to Chapter 49.60 RCW, Washington's Law Against
Discrimination, and 42 U.S.C. 12101 et seq, the Americans with Disabilities Act (ADA).
In the event of the Contractor's noncompliance or refusal to comply with any applicable nondiscrimination
law, regulation, or policy, this contract may be rescinded, canceled, or terminated in whole or in part, and the
Contractor may be declared ineligible for further contracts with the Board. The Contractor shall, however, be
given a reasonable time in which to cure this noncompliance.
The Contractor must also include the following terms and conditions in contracts with all contractors,
subcontractors, engineers, vendors, and any other entity for work or services listed in the declared
SCOPE OF WORK:
"The Contractor shall not discriminate on the basis of race, color, national origin or sex in the
performance of this Contract. The Contractor shall carry out applicable requirements of 40 CFR
part 33 in the award and administration of contracts awarded under Environmental Protection
Agency financial agreements. Failure by the Contractor to carry out these requirements is a
material breach of this Contract which may result in termination of this Contract."
1.31. PROHIBITION STATEMENT
Pursuant to Section 106 of the Trafficking Victims Protection Act of 2000, as amended, the Contractor's
contractors, subcontractors, engineers, vendors, and any other entity for work or services listed in the
declared SCOPE OF WORK may not engage in severe forms of trafficking in persons during the period of
time the Contract is in effect, procure a commercial sex act during the period of time the Contract is in
effect, or use forced labor during the performance of this Contract. The Contractor shall require this
prohibition statement in contracts with all contractors, subcontractors, engineers, vendors, and any other
entity for work or services listed in the declared SCOPE OF WORK.
The Contractor must also include the following terms and conditions in contracts with all contractors,
subcontractors, engineers, vendors, and any other entity for work or services listed in the declared
SCOPE OF WORK:
"Prohibition Statement- You as the recipient, your employees, subrecipients under this award,
and subrecipients' employees may not engage in severe forms of trafficking in persons during
the period of time that the award is in effect; procure a commercial sex act during the period of
time that the awards is in effect; or use forced labor in the performance of the award or
subawards under the award."
In the event that the Contractor or any of its employees is determined to have violated the terms of this
section, this Contract may be terminated.
1.32. FALSE, INCORRECT, OR INCOMPLETE INFORMATION OR CLAIM
The Contractor warrants that the Contractor neither has submitted nor shall submit any information that is
materially false, incorrect, or incomplete to the Board.
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The Contractor is advised that providing false, fictitious, or misleading information with respect to the
receipt and disbursements of Environmental Protection Agency funds is basis for criminal, civil, or
administrative fines and/or penalties.
1.33. Litigation
The Contractor warrants that there is no threatened or pending litigation, investigation, or legal action
before any court, arbitrator, or administrative agency that, if adversely determined, would have a
materially adverse effect on the Contractor's ability to repay the loan.
1.34. ESTABLISHMENT OF ADEQUATE RATES AND RESERVES
The Contractor agrees to provide a resolution adopting rate increases, capital assessments, or both, for
the services of the system that shall be sufficient to provide funds which, along with other revenues of the
system, will pay all operating expenses and debt repayments during the term of the loan. In addition, the
Contractor shall create, fund and maintain reserves at least as required by the Water System Plan or
Small Water System Management Plan. The Board reserves the right, at anytime, to request proof of
compliance of these requirements from the Contractor.
1.35. 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.
1.36. INVESTMENT GRADE AUDIT
For projects involving repair, replacement, or improvement of a wastewater treatment plant, or other
public works facility for which energy efficiency is obtainable, Contractor must undertake an investment
grade audit per ESHB 1497.
Costs incurred as part of the investment grade audit are eligible project costs.
1.37. BUY AMERICAN
None of the funds made available to the Contractor shall be used for a project for the construction,
alteration, maintenance, or repair of a public water system or treatment works unless all of the iron and
steel products used in the project are produced in the United States. This requirement applies to the
entire project receiving a loan agreement executed after January 17, 2014. Buy American does not apply
to a project if the Department of Health approves the engineering plans and specifications for the project,
in that agency's capacity to approve such plans and specifications prior to a project requesting bids, prior
to January 17, 2014.
Waiver of the Buy American requirement may be considered if: 1) compliance would be inconsistent with
the public interest; or 2) the particular iron and steel products are not produced in the United States in
sufficient and reasonably available quantities and/or the particular iron and steel products are not of a
satisfactory quality; or 3) inclusion of iron and steel products produced in the United States will increase
the cost of the overall project by more than 25 percent. For consideration, a request for a waiver must be
submitted to the Environmental Protection Agency (EPA). Contractors shall submit the waiver request to
Commerce, which will then submit the request to EPA. EPA will post the waiver request and any other
information available to EPA concerning the waiver request, on EPA's public Internet website and allow
for informal public input on the request for at least 15 days prior to making a finding based on the request.
The full text of the Buy American requirements appear at H.R. 3547, Consolidated Appropriations Act,
2014, and are incorporated herein.
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Part 2. 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. ADMINISTRATIVE COST ALLOCATION
Administrative costs that may be allowed are set forth in the Specific Terms and Conditions. Administrative
services shared by other programs shall be assigned to this Contract based on an allocation plan that
reflects allowable administrative costs that support services provided under each Contract administered by
the Contractor. An approved current federal indirect cost rate may be applied up to the maximum
administrative budget allowed.
2.3. 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.
2.4. 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.
2.5. 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.
2.6. 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.
2.7. 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.
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2.8. 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.
2.9. 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 attorneys fees and costs.
2.10. 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.
As applicable, Contractors required to have an audit must ensure the audits are performed in
accordance with Generally Accepted Auditing Standards (GARS); Government Auditing Standards (the
Revised Yellow Book) developed by the Comptroller General.
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 requests for information or
corrective action concerning audit issues within thirty (30) days of the date of request.
B. Federal Funds Requirements - OMB Circular A-133 Audits of States. Local Governments and
Non -Profit Organizations
Contractors expending $500,000 or more in a fiscal year in federal funds from all sources, direct and
indirect, are required to have an audit conducted in accordance with Office of Management and Budget
(OMB) Revised Circular A-133 "Audits of States, Local Governments, and Non -Profit Organizations."
Revised OMB A-133 requires the Contractor to provide the auditor with a schedule of Federal
Expenditure for the fiscal year(s) being audited. When state funds are also to be paid under this
Agreement a Schedule of State Financial Assistance must also be included. Both schedules include;
Grantor agency name
Federal agency
Federal program name
Other identifying contract numbers
Catalog of Federal Domestic Assistance (CFDA) number (if applicable)
Grantor contract number
Total award amount including amendments (total grant award)
Current year expenditures
If the Contractor is a state or 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 in accordance with OMB Circular A-110 "Uniform Administrative Requirements for
Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non -Profit
Organizations."
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.
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C. Documentation Requirements
The Contractor must send a copy of any required audit Reporting Package as described in OMB
Circular A-133, Part C, Section 320(c) no later than nine (9) months after the end of the Contractor's
fiscal year(s) by sending a scanned copy to auditreview(@,commerce.wa.gov or by sending a hard copy
to:
Department of Commerce
ATTN: Audit Review and Resolution Office
1011 Plum Street
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.
2.11. CERTIFICATION REGARDING DEBARMENT SUSPENSION OR INELIGIBILITY AND VOLUNTARY
EXCLUSION --PRIMARY AND LOWER TIER COVERED TRANSACTIONS
A, Contractor, defined as the primary participant and it principals, certifies by signing these General Terms
and Conditions that to the best of its knowledge and belief that they:
1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from covered transactions by any Federal department or agency.
2. Have not within a three-year period preceding this contract, been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private agreement or transaction, violation
of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax evasion, receiving stolen
property, making false claims, or obstruction of justice;
3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(federal, state, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of
this section; and
4. Have not within a three-year period preceding the signing of this contract had one or more public
transactions (federal, state, or local) terminated for cause of default.
B. Where the Contractor is unable to certify to any of the statements in this contract, the Contractor shall
attach an explanation to this contract.
C. The Contractor agrees by signing this contract that it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless authorized by the BOARD.
D. The Contractor further agrees by signing this contract that it will include the clause titled "Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered
Transaction," as follows, without modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions:
LOWER TIER COVERED TRANSACTIONS
a) The lower tier contractor certifies, by signing this contract that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded
from participation in this transaction by any Federal department or agency.
b) Where the lower tier contractor is unable to certify to any of the statements in this contract, such
contractor shall attach an explanation to this contract.
E. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, person,
primary covered transaction, principal, and voluntarily excluded, as used in this section, have the
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meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order
12549. You may contact the BOARD for assistance in obtaining a copy of these regulations.
2.12. 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.
2.13. CONFIDENTIALITY/SAFEGUARDING OF INFORMATION
A. "Confidential Information" as used in this section includes:
2. All material provided to the Contractor by the BOARD that is designated as "confidential' by the
BOARD;
3. All material produced by the Contractor that is designated as "confidential" by the BOARD; and
4. 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.
2.14. 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.
2.16. 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,
including 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. "Ownership" includes the right to copyright, patent, register and the ability to transfer
these rights.
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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.
2.16. DISALLOWED COSTS
The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization
or that of its Subcontractors.
2.17. 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 Director of the 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 Director and the other party's (respondent's) Contract 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 Director or the
Director's designee and the requestor within five (5) working days.
The Director or designee shall review the written statements and reply in writing to both parties within ten
(10) working days. The Director 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.
2.18. 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.
2.19. 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.
2.20. 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.
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2.21. 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.
2.22. 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.
2.23. 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.
2.24. LAWS
The Contractor shall comply with all applicable laws, ordinances, codes, regulations, and policies of local,
state, and federal governments, as now or hereafter amended, including, but not limited to:
United States Laws, Regulations and Circulars (Federal)
A. Audits
Office of Management and Budget (OMB) Revised Circular A-133 "Audits of States, Local
Governments, and Non -Profit Organizations."
B. Environmental Protection and Review
Coastal Barrier Resources Act of 1982, 16 U.S.C. 3501 et seq.
HUD's implementing regulations at 24 CFR parts 50 or 58, as appropriate.
Lead Based Paint Poisoning Prevention Act, 42 U.S.C. 4821-4846 also 24 CFR 982.401 Q).
National Environmental Policy Act of 1969, 42 U.S.C. 4321et seq. and the Implementing Regulations of
24 CFR 58 (HUD) and 40 CFR 1500-1508 (Council on Environmental Quality) Residential Lead -Based
Paint Hazard Reduction Act of 1992, 42 USC 4851-4856.
C. Flood Plains
Flood Disaster Protection Act of 1973, 42 USC 4001-4128.
D. Labor and Safety Standards
All Rental Units Assisted with Federal Funds Must Meet the Section 8 Housing Quality Standards (HQS)
and Local Housing Code Requirements for the duration of the Affordability Period.
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Convict Labor, 18 U.S.C. 751, 752, 4081, 4082,
Davis Bacon Act, 40 U.S.C. 276a-276a-5.
Drug -Free Workplace Act of 1988, 41 USC 701 et seq.
Federal Fair Labor Standards Act, 29 U.S.C. 201 et seq.
Work Hours and Safety Act of 1962, 40 U.S.C. 327-330 and Department of Labor Regulations, 29 CFR
Part 5.
Title IV of the Lead Based Paint Poisoning Prevention Act, 42 U.S.C. 4831, 24 CFR Part 35.
E. Laws against Discrimination
Age Discrimination Act of 1975, Public Law 94-135, 42 U.S.C. 6101-07, 45 CFR Part 90
Nondiscrimination in Federally Assisted Programs.
Americans with Disabilities Act of 1990, Public Law 101-336.
Equal Employment Opportunity, Executive Order 11246, as amended by Executive Order 11375 and
supplemented in U.S. Department of Labor Regulations, 41 CFR Chapter 60.
Executive Order 11246, as amended by EO 11375, 11478, 12086 and 12102.
Fair Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100.Section 504 of
the Rehabilitation Act of 1973 and implementing regulations at 24 CFR part 8.
Fair Housing, Title VIII of the Civil Rights Act of 1968, Public Law 90-284, 42 U.S.C. 3601-19.
Handicapped Employees of Government Contractors, Rehabilitation Act of 1973, Section 503, 29
U.S.C. 793.
Handicapped Recipients of Federal Financial Assistance, Rehabilitation Act of 1973, Section 504, 29
U.S.C. 794.
Minority Business Enterprises, Executive Order 11625, 15 U.S.C. 631.
Minority Business Enterprise Development, Executive Order 12432, 48 FR 32551,
Nondiscrimination and Equal Opportunity, 24 CFR 5.105(a).
Nondiscrimination in Benefits, Title VI of the Civil Rights Act of 1964, Public Law 88-352, 42 U.S.C.
2002d et seq, 24 CFR Part 1.
Nondiscrimination in Employment, Title VII of the Civil Rights Act of 1964, Public Law 88-352.
Nondiscrimination in Federally Assisted Programs.
Nondiscrimination in Federally Assisted Construction Contracts, Executive Order 11246, 42 U.S.C.
2000e, as amended by Executive Order 11375, 41 CFR Chapter 60.
Section 3, Housing and Urban Development Act of 1968, 12 USC 1701 u (See 24 CFR 570.607(b)).
F. Office of Management and Budget Circulars
Cost Principles for State, Local and Indian Tribal Governments, OMB Circular A-87, 2 CFR, Part 225.
Cost Principles for Nonprofit Organizations, OMB Circular A-122, (if the Contractor is a nonprofit
organization).
Grants and Cooperative Agreements with State and Local Governments, OMB Circular A-102, (if the
Contractor is a local government or federally recognized Indian tribal government).
Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher
Education, Hospitals and Other Nonprofit Organizations, OMB Circular A-110.
G. Other
Anti -Kickback Act, 18 U.S.C. 874; 40 U.S.C. 276b, 276c; 41 U.S.C. 51-54.
H.R. 3547, Consolidated Appropriations Act, 2014.
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Governmental Guidance for New Restrictions on Lobbying; Interim Final Guidance, Federal Register 1,
Vol. 54, No. 2431Wednesday, December 20, 1989.
Hatch Political Activity Act, 5 U.S.C. 1501-8,
Lobbying and Disclosure, 42 USC 3537a and 3545 and 31 USC 1352 (Byrd Anti -Lobbying
Amendment). 31 U.S.C. 1352 provides that Contractors who apply or bid for an award of $100,000 or
more must file the required certification. Each tier certifies to the tier above that it will not and has not
used Federal appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, officer or employee of
Congress, or an employee of a member of Congress in connection with obtaining any Federal contract,
grant or other award covered by 31 U.S.C. 1352. Each tier must disclose any lobbying with non -Federal
funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded
from tier to tier up to the recipient.
Non -Supplanting Federal Funds.
Section 8 Housing Assistance Payments Program.
H. Privacy
Privacy Act of 1974, 5 U.S.C. 522a.
I. Relocation
Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970 and implementing
regulations at 49 CFR part 24.
Section 104(d) of the Housing and Community Development Act of 1974 and the implementing
regulations at 24 CRF part 570.
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
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.
0. 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.
2.26. 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.
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2.26. 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.
2.27. LOCAL PUBLIC TRANSPORTATION COORDINATION
Where applicable, Contractor shall participate in local public transportation forums and implement strategies
designed to ensure access to services.
2.28. 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 declared 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.
2.29. NOTIFICATION OF TENANT RIGHTS/RESPONSIBILITIES
The Contractor shall provide all tenants, if any, with information outlining tenant rights and responsibilities
under the Washington State Landlord Tenant laws, Title 59, Revised Code of Washington.
The Contractor shall also provide all occupants of property acquired with U.S. Department of Housing and
Urban Development (HUD) funds notice regarding their eligibility for relocation assistance. Such notices
will be provided as required by the Uniform Relocation Assistance and Real Property Acquisition Act of
1970, as amended and referenced in 49 CFR part 24 and Section 104(d) of the Housing and Community
Development Act of 1974, as amended and referenced in 24 CFR 570 and noted in HUD's Handbook No.
1378. Notifications will include but not be limited to:
• General Information Notice
• Notice of Displacement/Non-Displacement
2.30. 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.
2.31. PREVAILING WAGE LAWS
All contractors and subcontractors performing work on a construction project funded through this agreement
shall comply with prevailing wage laws by paying the higher of state or federal prevailing wages according
to:
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; or
The Davis Bacon Act, 40 U.S.C. 276a-276a-5 and related federal acts provide that all laborers and
mechanics employed by contractors or subcontractors in the performance shall be paid wages at rates
not less than those prevailing on similar construction in the locality as determined by the Secretary of
Labor.
2.32. PROCUREMENT STANDARDS FOR FEDERALLY FUNDED PROGRAMS
A Contractor which is a local government or Indian Tribal government must establish procurement policies
and procedures in accordance with OMB Circulars A-102, Uniform Administrative Requirements for Grants
in Aid for State and Local Governments, for all purchases funded by this Contract.
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A Contractor which is a nonprofit organization shall establish procurement policies in accordance with OMB
Circular A-110, Uniform Administrative Requirements for Grants and Agreements with Nonprofit Agencies,
for all purchases funded by this Contract.
The Contractor's procurement system should include at least the following:
1. A code or standard of conduct that shall govern the performance of its officers, employees, or
agents engaged in the awarding of contracts using federal funds.
2. Procedures that ensure all procurement transactions shall be conducted in a manner to provide, to
the maximum extent practical, open and free competition.
3. Minimum procedural requirements, as follows:
a. Follow a procedure to assure the avoidance of purchasing unnecessary or duplicative items.
b. Solicitations shall be based upon a clear and accurate description of the technical requirements
of the procured items.
c. Positive efforts shall be made to use small and minority -owned businesses.
d. The type of procuring instrument (fixed price, cost reimbursement) shall be determined by the
Contractor, but must be appropriate for the particular procurement and for promoting the best
interest of the program involved.
e. Contracts shall be made only with reasonable subcontractors who possess the potential ability
to perform successfully under the terms and conditions of the proposed procurement.
f. Some form of price or cost analysis should be performed in connection with every procurement
action.
g. Procurement records and files for purchases shall include all of the following:
1) Contractor selection or rejection.
2) The basis for the cost or price.
3) Justification for lack of competitive bids if offers are not obtained.
h. A system for contract administration to ensure Contractor conformance with terms, conditions
and specifications of this Contract, and to ensure adequate and timely follow-up of all
purchases.
4. Contractor and Subcontractor must receive prior approval from the BOARD for using funds from
this Contract to enter into a sole source contract or a contract where only one bid or proposal is
received when value of this contract is expected to exceed $5,000.
Prior approval requests shall include a copy of proposed contracts and any related procurement
documents and justification for non-competitive procurement, if applicable.
2.33. 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.
2.34. 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.
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2.35. 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.
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.
2.36. 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.
2.37. REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law, the Contractor shall complete registration with the Washington State Department of
Revenue.
2.38. 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.
2.39. 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.
2.40. 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 Contact are declared to be severable.
2.41. 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
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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.
2.42. 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.
2.43. 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.
2.44. 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).
2.45. 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.
2.46. 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 BOARD 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
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
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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.
2.47. 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
in writing and signed by Authorized Representative of THE BOARD.
2.48. WORK HOURS AND SAFETY STANDARDS
The Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)-Where applicable, all contracts
awarded by recipients in excess of $100,000 for construction and other purposes that involve the
employment of mechanics or laborers must include a provision for compliance with Section 102 and 107 of
the Contract Work Hours Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of
Labor regulations (29 CFR part 5). Under Section 102 of the Act, each subcontractor is required to
compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work
in excess of the standard work week is permissible provided that the worker is compensated at a rate of not
less than 1 % times the basic rate of pay for all hours worked in excess of 40 hours in the work week.
Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic is
required to work in surroundings or under working conditions which are unsanitary, hazardous, or
dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily
available on the open market, or contracts for transportation or transmission of intelligence.
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City of Port Orchard Page 35 Attachment I: Attorney's Certification
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
ATTACHMENT I: ATTORNEY'S CERTIFICATION
DRINKING WATER STATE REVOLVING FUND
(MUNICIPAL)
City of Port Orchard
DM13-952-185
Gregory A. Jacoby
hereby certify:
I am an attorney at law admitted to practice in the State of Washington and the duly appointed
attorney of the Contractor identified on the Declarations Page of the Contract identified above;
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 Drinking Water State Revolving Fund financial
assistance and to provide for repayment of the loan as set forth in the loan agreement.
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 Drinking Water State Revolving Fund 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 loan agreement.
4. Assumption of this obligation would not exceed statutory and administrative rule debt
limitations applicable to the Contractor.
w _ 4 I O zowr
Signature o l
rney Date
Gregory A. Jacoby
Name
McGavick Graves, P.S., 1102 Broadway, Ste. 500, Tacoma, VM 98402
Address
City of Port Orchard Page 36 Attachment I: Attorney's Certification
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
City of Port Orchard Page 37 Attachment II: Federal and State Requirements
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
ATTACHMENT II: FEDERAL AND STATE REQUIREMENTS
1) Environmental Authorities
a) Archeological and Historic Preservation Act of 1974, Public Law 86-523 as amended
b) Clean Air Act, Public Law 84-159 as amended
c) Coastal Barrier Resources Act, Public Law 92-583 as amended
d) Endangered Species Act, Public Law 93-205 as amended
e) Environmental Justice, Executive Order 12898
0 Floodplain Management, Executive Order 11934 as amended by Executive Order 12148
g) Protection of Wetlands, Executive Order 11990
h) Farmland Protection Policy Act, Public Law 97-98
i) Fish and Wildlife Coordination Act, Public Law 85-624 as amended
j) National Historic Preservation Act of 1966, Public Law 89-665 as amended
k) Safe Drinking Water Act, Public Law 93-523 as amended
1) Wild and Scenic Rivers Act, Public Law 90-542 as amended
2) Economic and Miscellaneous Authorities
a) Demonstration Cities and Metropolitan Development Act of 1996, Public Law 89-754 as amended, Executive Order
12372
b) Procurement Prohibitions under Section 306 of the Clean air Act and Section 508 of the Clean Water Act, including
Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Ac with Respect to
Federal Contracts, Grants, or Loans
c) Uniform Relocation and Real Property Policies Act, Public Law 91-646 as amended
Debarment and Suspension, Executive Order 12549
d) H.R. 3547, Consolidated Appropriations Act, 2014.
3) Social Policy Authorities
a) Age Discrimination Act of 1975, Public Law 94-135
b) Title VI of the Civil Rights Act of 1964, Public Law 88-352
c) Section 13 of the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500 (the Clean Water Act)
d) Section 504 of the Rehabilitation Act of 1973, Public Law 93-112 (including Executive Orders 11914 and 11250)
e) Equal Employment Opportunity, Executive Order 11246
f) Disadvantaged Business Enterprise, Public Law 101-549 (the Clean Air Act), and Public Law 102-389 (the Clean Water
Act)
g) Section 129 of the Small Business Administration Reauthorization and Amendment Act of 1988, Public Law 100-590
4) State Laws
a) Chapter 36.70A RCW, Growth Management Act
b) Chapter 39.80 RCW, Contracts for Architectural and Engineering Services
c) Chapter 39.12 RCW, Washington State Public Works Act
d) Chapter 43.20 RCW, State Board of Health
e) Chapter 43.70 RCW, Department of Health
f) Chapter 43.155 RCW, Public Works Project
g) Chapter 70.116 RCW, Public Water Systems Coordination Act of 1977
h) Chapter 70.119 RCW, Public Water Supply Systems Certification and Regulation of Operations
i) Chapter 70.119A RCW, Public Water Systems, Penalties & Compliances
j) Chapter 246-290 WAC, Group A Public Water Systems
k) Chapter 246-291 WAC, Group B Public Water Systems
1) Chapter 246-292 WAC, Waterworks Operator Certification Regulations
m) Chapter 246-293 WAC, Water Systems Coordination Act
n) Chapter 246-294 WAC, Drinking Water Operating Permits
o) Chapter 246-295 WAC, Satellite System Management Agencies
o) Chapter 246-296 WAC Drinking Water State Revolving Fund Loan Program
p) Chapter 173-160 WAC, Minimum Standards for Construction & Maintenance of Wells
q) Title 173 WAC, Department of Ecology Rules
r) Title 40 Part 141 Code of Federal Regulations, Federal National Primary Drinking Water Regulations (Section Adopted
by Reference)
City of Port Orchard Page 38 Attachment II: Federal and State Requirements
DM13-952-186 3/18/2014 DWSRF NT Loan Contract (Municipal)
City of Port Orchard Page 39 Attachment III: DBE Requirements
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
ATTACHMENT III: DISADVANTAGED BUSINESS ENTERPRISE
REQUIREMENTS
GENERAL COMPLIANCE, 40 CFR, Part 33
The Contractor agrees to comply with the requirements of Environmental Protection Agency's Program for Utilization
of Small, Minority and Women's Business Enterprises (MBE/WBE) in procurement under this Contract, contained in
40 CFR, Part 33.
FAIR SHARE OBJECTIVES, 40 CFR, Part 33, Subpart D
The following are exemptions from the fair share objective Requirements:
• Grant and loan recipients receiving a total of $250K or less in EPA financial assistance in a given fiscal year.
• Tribal recipients of Performance Partnership Eligible grants under 40 CFR Part 35, Subpart B.
o There is a 3-year phase in period for the requirement to negotiate fair share goals for Tribal and
Insular Area recipients.
• Recipients of Technical Assistance Grants.
The Fair Share Objectives or goals for the utilization of disadvantaged businesses negotiated with EPA by the WA
Office of Minority Women Business are stated below.
Construction
10% MBE
6% WBE
Supplies
8% MBE
4% WBE
Equipment
8% MBE
4% WBE
Purchased Services
10% MBE
4% WBE
By signing this Contract, the Contractor is accepting the fair share objectives/goals stated above and attests to the
fact that it is purchasing the same or similar construction, supplies, services and equipment, in the same or similar
relevant geographic buying market as WA Office of Minority Women Business goal is being adopted.
SIX GOOD FAITH EFFORTS, 40 CFR, Part 33, Subpart C
Pursuant to 40 CFR, Section 33.301, the Contractor agrees to make the following good faith efforts whenever
procuring construction, equipment, services and supplies under an EPA financial assistance agreement, and to
ensure that sub -recipients, loan recipients, and prime contractors also comply.
Records documenting compliance with the six good faith efforts shall be retained. The six good faith efforts shall
include:
A. Ensure Disadvantaged Business Enterprises are made aware of contracting opportunities to the fullest
extent practicable through outreach and recruitment activities. For Indian Tribal, State and Local
Government recipients, this will include placing the Disadvantaged Business Enterprises on solicitation
lists and soliciting them whenever they are potential sources.
B. Make information on forthcoming opportunities available to Disadvantaged Business Enterprises and
arrange time frames for contracts and establish delivery schedules, where the requirements permit, in a
way that encourages and facilitates participation by Disadvantaged Business Enterprises in the
competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a
minimum of thirty (30) calendar days before the bid or proposal closing date.
C. Consider in the contracting process whether firms competing for large contracts could subcontract with
Disadvantaged Business Enterprises. For Indian Tribal, State and Local Government recipients, this
will include dividing total requirements, when economically feasible, into smaller tasks or quantities to
permit maximum participation by Disadvantaged Business Enterprises in the competitive process.
D. Encourage contracting with a consortium of Disadvantaged Business Enterprises when a contract is
too large for one of these firms to handle individually.
E. Use the services and assistance of the Small Business Administration and the Minority Business
Development Agency of the Department of Commerce.
City of Port Orchard Page 40 Attachment III: DBE Requirements
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F. If the prime contractor awards subcontracts, also require the prime contractor to take the five good faith
efforts in paragraphs A through E above.
MBE/WBE REPORTING, 40 CFR, Part 33, Sections 33.502 and 33.503
Contractor is required to submit MBEIWBE participation reports to the Board and/or the Department of Health, on a
quarterly basis, beginning with the Federal fiscal year reporting period the Contractor receives the award and
continuing until the project is completed.
CONTRACT ADMINISTRATION PROVISIONS, 40 CFR, Section 33.302
The Contractor agrees to comply with the contract administration provisions of 40 CFR, Section 33.302
The Contractor agrees to require all general contractors to provide forms: EPA Form 6100-2 DBE Subcontractor
Participation Form and EPA Form 6100-3 DBE Subcontractor Performance Form to all its Disadvantaged Business
Enterprise subcontractors, engineers, vendors, and any other entity for work or services listed in the declared SCOPE
OF WORK. These two (2) forms may be obtained from the EPA Office of Small Business Program's website on the
internet at http://www.epa.gov/osbr)/arants.htm.
The Contractor agrees to require all general contractors to complete and submit to the Contractor and Environmental
Protection Agency EPA Form 6100-4 DBE Subcontractor Utilization Form beginning with the Federal fiscal year
reporting period the Contractor receives the award and continuing until the project is completed. Only procurements
with certified MBENVBEs are counted toward a Contractor's MBENVBE accomplishments.
BIDDERS LIST, 40 CFR, Section 33.501(b) and (c)
The Contractor is also required to create and maintain a bidders list if the Contractor of the loan is subject to, or
chooses to follow, competitive bidding requirements. Please see 40 CFR, Section 33.501 (b) and (c) for specific
requirements and exemptions.
Section 33.501(b) of the rule is as follows:
A recipient of a Continuing Environmental Program Grant or other annual grant must create and maintain a bidders
list. In addition, a recipient of an EPA financial assistance agreement to capitalize a revolving loan fund also must
require entities receiving identified loans to create and maintain a bidders list if the recipient of the loan is subject to,
or chooses to follow, competitive bidding requirements. The purpose of a bidders list is to provide the recipient and
entities receiving identified loans who conduct competitive bidding with as accurate a database as possible about the
universe of MBENVBE and non-MBENVBE prime and subcontractors. The list must include all firms that bid or quote
on prime contracts or bid or quote on subcontracts under EPA assisted projects, including both MBENVBEs.
The bidders list must be kept until the grant project period has expired and the recipient is no longer receiving EPA
funding under the grant. For entities receiving identified loans, the bidders list must be kept until the project period for
the identified loan has ended. The following information must be obtained from all prime and subcontractors:
(1) Entity's name with point of contact;
(2) Entity's mailing address, telephone number, and e-mail address;
(3) The procurement on which the entity bid or quoted, and when; and
(4) Entity's status as a MBENVBE' or non-MBENVBE.
The exemption found at § 33.501(c) is as follows:
A recipient of an EPA financial assistance agreement in the amount of $250,000 or less for any single
assistance agreement, or of more than one financial assistance agreement with a combined total of $250,000
or less in any one fiscal year, is exempt from the paragraph (b) of this section requirement to create and
maintain a bidders list. Also, a recipient under the CWSRF, DWSRF, or BCRLF Program is not required to
apply the paragraph (b) of this section bidders list requirement of this subpart to an entity receiving an identified
loan in an amount of $250,000 or less, or to an entity receiving more than one identified loan with a combined
total of $250,000 or less in any one fiscal year. This exemption is limited to the paragraph (b) of this section
bidders list requirements of this subpart.
' Qualified Women and Minority business enterprises may be found on the Internet at www.omwbe.wa.gov or by contacting the Washington State
Office of Minority and Women's Enterprises at 360-704-1181.
City of Port Orchard Page 41 Attachment III: DBE Requirements
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
ATTACHMENT IV: CERTIFICATION REGARDING
DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS
��� United States
w Environmental Protection Agency
EPA Project Control Number
United States Environmental Protection Agency
Washington, DC 20460
The prospective participant certifies to the best of its knowledge and belief that it and the principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered
transactions by any Federal department or agency;
(b) Have not within a three year period preceding this proposal been convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal,
State, or local) transaction or contract under a public transaction: violation of Federal or State antitrust statutes or commission
of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen
property;
(c) Are not presently indicted for otherwise criminally or civilly charged by a government entity (Federal, State, or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal,
State, or local) terminated for cause or default.
I understand that a false statement on this certification may be ground for rejection of this proposal or termination of the award. in
addition, tinder 18 USC Sec. 1001, a false statement may result in a fine of up to $10,000 or imprisonment for up to 5 years, or
both.
Timothy C MatthPS, Mayor
Typed Name & Title of Authorized Representative
Signature of AuthorizEd Representative Date
I am unable to certify to the above statements. My explanation is attached.
EPA Form 5700-49 (11-88)
City of Port Orchard Page 42 Attachment IV: Certification Regarding Debarment
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City of Port Orchard Page 43 Attachment V: DWSRF Eligible Project Costs
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ATTACHMENT V: DWSRF ELIGIBLE PROJECT COSTS
Must be directly attributable to the project.
1. The costs for complying with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act
of 1970.
2. DWSRF loan fees.
3. The purchase of a portion of another system's capacity,
if it is the most cost effective solution (limited to
publicly owned (municipal) systems).
4. Construction of reservoirs (clear wells) that are part of
the treatment process and are collocated with the
treatment facility.
5. Construction of distribution reservoirs (finished water).
6. Cost associated with restructuring or consolidation of
existing water systems by publicly owned water
systems.
7. Main extensions to connect to safe and reliable sources
of drinking water.
8. Cost associated with collecting and preparing
environmental assessment documents to obtain local
permits.
9. Direct labor including related employee benefits:
a. Salaries and wages (at actual or average rates)
covering productive labor hours of employees of
the borrower (excluding the administrative
organization of the operating unit involved) for
periods of time actively or incidentally engaged in
pre -design engineering, design engineering,
construction engineering, acquisition of rights of
way, and the cleaning, sterilization or
bacteriological testing of water system components
prior to public use. The costs of services rendered
by employees generally classified as
administration/project management of the loan are
considered a direct cost only when such employees
are assigned the types of services described above
and shall be limited to 3% or less of the project
loan amount.
b. Employee benefits relating to labor are considered
a direct cost of construction projects. The
following items may be included as employee
benefits:
• F.I.C.A. (Social Security) —employer's share.
• Retirement benefits.
• Hospital, health, dental, and other welfare
insurance.
• Life insurance.
• Industrial and medical insurance.
• Vacation.
• Holiday.
• Sick leave.
• Military leave and jury duty.
Employee benefits must be calculated as a
percentage of direct labor dollars. The computation
of predetermined percentage rates to be applied to
current labor costs must be based on the average of
total employee benefits and total labor costs for the
prior fiscal year and adjusted by known current
year variations.
c. Other than work identified in Number 9.a, no costs
associated with labor performed by the borrower's
employees, including force account work, are
eligible for financing assistance.
10. Contract engineering, planning, design, legal, and
financial planning services. The Board reserves the
right to declare ineligible legal costs that are
unreasonable and disproportionate to the project.
11. Contract construction work.
12. Direct vehicle and equipment charges at the actual
rental cost paid for the equipment or, in the case of city
or county -owned equipment, at the rental rates
established by the local government's "equipment
rental and revolving fund" following the methods
prescribed by the division of municipal corporations.
However, such costs must be charged on a uniform
basis to equipment used for all projects regardless of
the source of funding. Cities with a population of eight
thousand or less not using this type of fund are allowed
the same rates as used by the State Department of
Transportation.
13. Direct materials and supplies.
14. Other direct costs incurred for materials or services
acquired for a specific project are eligible costs and
may include, but are not limited to such items as:
a. Telephone charges.
b. Reproduction and photogrammetry costs.
c. Video and photography for project documentation.
d. Computer usage.
e. Printing and advertising.
15. Other project related costs include:
• Competitive Bidding.
• Audit.
• Insurance.
• Prevailing wages.
• Attorney fees.
City of Port Orchard Page 44 Attachment V: DWSRF Eligible Project Costs
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• Environmental Review.
• Archaeological Survey.
Water system plan costs are not eligible for reimbursement.
Small water system management program and plan
amendments costs are eligible for reimbursement.
Projects may be designed to accommodate reasonable
growth. This is generally the 20-year projection included in
the system's water system plan or small water system
management program.
City of Port Orchard Page 45 Attachment V: DWSRF Eligible Project Costs
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ATTACHMENT VI: LABOR STANDARD PROVISIONS FOR
SUBRECIPIENTS THAT ARE GOVERNMENTAL ENTITIES
Wage Rate Requirements Under The Consolidated and Further Continuing Appropriations Act, 2013
(P.L. 113-6)
Preamble
With respect to the Clean Water and Safe Drinking Water State Revolving Funds, EPA provides capitalization
grants to each State which in turn provides subgrants or loans to eligible entities within the State. Typically, the
subrecipients are municipal or other local governmental entities that manage the funds. For these types of
recipients, the provisions set forth under Roman Numeral 1, below, shall apply. Although EPA and the State
remain responsible for ensuring subrecipients' compliance with the wage rate requirements set forth herein,
those subrecipients shall have the primary responsibility to maintain payroll records as described in Section
3(ii)(A), below and for compliance as described in Section I-5.
Occasionally, the subrecipient may be a private for profit or not for profit entity. For these types of recipients,
the provisions set forth in Roman Numeral II, below, shall apply. Although EPA and the State remain responsible
for ensuring subrecipients' compliance with the wage rate requirements set forth herein, those subrecipients
shall have the primary responsibility to maintain payroll records as described in Section II-3(ii)(A), below and for
compliance as described in Section II-5.
I. Requirements Under The Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6)
For Subrecipients That Are Governmental Entities:
The following terms and conditions specify how recipients will assist EPA in meeting its Davis -Bacon (DB)
responsibilities when DB applies to EPA awards of financial assistance under the FY 2013 Continuing Resolution
with respect to State recipients and subrecipients that are governmental entities. If a subrecipient has questions
regarding when DB applies, obtaining the correct DB wage determinations, DB provisions, or compliance
monitoring, it may contact Department of Commerce. If a State recipient needs guidance, they may obtain
additional guidance from DOI.'s web site at http://www.dol.gov/whd/.
1. Applicability of the Davis- Bacon (DB) prevailing wage requirements.
Under the FY 2013 Continuing Resolution, DB prevailing wage requirements apply to the construction,
alteration, and repair of treatment works carried out in whole or in part with assistance made available by a
State water pollution control revolving fund and to any construction project carried out in whole or in part
by assistance made available by a drinking water treatment revolving loan fund. If a subrecipient
encounters a unique situation at a site that presents uncertainties regarding DB applicability, the
subrecipient must discuss the situation with the recipient State before authorizing work on that site.
2.Obtaining Wage Determinations.
(a) Subrecipients shall obtain the wage determination for the locality in which a covered activity subject to DB
will take place prior to issuing requests for bids, proposals, quotes or other methods for soliciting contracts
(solicitation) for activities subject to DB. These wage determinations shall be incorporated into solicitations and
any subsequent contracts. Prime contracts must contain a provision requiring that subcontractors follow the
wage determination incorporated into the prime contract.
(i) While the solicitation remains open, the subrecipient shall monitor www.wdol.gov weekly to ensure
that the wage determination contained in the solicitation remains current. The subrecipients shall
City of Port Orchard Page 46 Attachment VI: Labor Standards Provisions
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amend the solicitation if DOL issues a modification more than 10 days prior to the closing date (i.e.
bid opening) for the solicitation. If DOL modifies or supersedes the applicable wage determination
less than 10 days prior to the closing date, the subrecipients may request a finding from the State
recipient that there is not a reasonable time to notify interested contractors of the modification of
the wage determination. The State recipient will provide a report of its findings to the subrecipient.
(ii) If the subrecipient does not award the contract within 90 days of the closure of the solicitation, any
modifications or supersedes DOL makes to the wage determination contained in the solicitation
shall be effective unless the State recipient, at the request of the subrecipient, obtains an extension
of the 90 day period from DOL pursuant to 29 CFR 1.6(c)(3)(iv). The subrecipient shall monitor
www.wdol.eov on a weekly basis if it does not award the contract within 90 days of closure of the
solicitation to ensure that wage determinations contained in the solicitation remain current.
(b) If the subrecipient carries out activity subject to DB by issuing a task order, work assignment or similar
instrument to an existing contractor (ordering instrument) rather than by publishing a solicitation, the
subrecipient shall insert the appropriate DOL wage determination from www.wdol.gov into the ordering
instrument.
(c) Subrecipients shall review all subcontracts subject to DB entered into by prime contractors to verify that the
prime contractor has required its subcontractors to include the applicable wage determinations.
(d) As provided in 29 CFR 1.6(f), DOL may issue a revised wage determination applicable to a subrecipient's
contract after the award of a contract or the issuance of an ordering instrument if DOL determines that the
subrecipient has failed to incorporate a wage determination or has used a wage determination that clearly does
not apply to the contractor ordering instrument. If this occurs, the subrecipient shall either terminate the
contract or ordering instrument and issue a revised solicitation or ordering instrument or incorporate DOL's
wage determination retroactive to the beginning of the contract or ordering instrument by change order. The
subrecipient's contractor must be compensated for any increases in wages resulting from the use of DOL's
revised wage determination.
3. Contract and Subcontract provisions.
(a) The Recipient shall insure that the subrecipient(s) shall insert in full in any contract in excess of $2,000
which is entered into for the actual construction, alteration and/or repair, including painting and decorating, of a
treatment work under the CWSRF or a construction project under the DWSRF financed in whole or in part from
Federal funds or in accordance with guarantees of a Federal agency or financed from funds obtained by pledge
of any contract of a Federal agency to make a loan, grant or annual contribution (except where a different
meaning is expressly indicated), and which is subject to the labor standards provisions of any of the acts listed in
§ 5.1 or the FY 2013 Continuing Resolution, the following clauses:
(1) Minimum wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and
not less often than once a week, and without subsequent deduction or rebate on any account (except such
payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29
CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of
payment computed at rates not less than those contained in the wage determination of the Secretary of Labor
which is attached hereto and made a part hereof, regardless of any contractual relationship which may be
alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the
Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics,
City of Port Orchard Page 47 Attachment VI: Labor Standards Provisions
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subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made or costs
incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs
which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly
period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage
determination for the classification of work actually performed, without regard to skill, except as provided in §
5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the
rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll
records accurately set forth the time spent in each classification in which work is performed. The wage
determination (including any additional classification and wage rates conformed under paragraph (a)(1)(ii) of
this section) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the contractor and its
subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the
workers.
Subrecipients may obtain wage determinations from the U.S. Department of Labor's web site, www.dol.gov.
(ii)(A) The subrecipient(s), on behalf of EPA, shall require that any class of laborers or mechanics, including
helpers, which is not listed in the wage determination and which is to be employed under the contract shall be
classified in conformance with the wage determination. The State award official shall approve a request for an
additional classification and wage rate and fringe benefits therefore only when the following criteria have been
met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage
determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage
rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the subrecipient(s) agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), documentation of the action taken and the request, including
the local wage determination shall be sent by the subrecipient (s) to the State award official. The State award
official will transmit the request, to the Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210 and to the EPA DB Regional Coordinator
concurrently. The Administrator, or an authorized representative, will approve, modify, or disapprove every
additional classification request within 30 days of receipt and so advise the State award official or will notify the
State award official within the 30-day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or their
representatives, and the subrecipient(s) do not agree on the proposed classification and wage rate (including
the amount designated for fringe benefits, where appropriate), the award official shall refer the request and the
local wage determination, including the views of all interested parties and the recommendation of the State
award official, to the Administrator for determination. The request shall be sent to the EPA DB Regional
Coordinator concurrently. The Administrator, or an authorized representative, will issue a determination within
30 days of receipt of the request and so advise the contracting officer or will notify the contracting officer within
the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii)(B)
or (C) of this section, shall be paid to all workers performing work in the classification under this contract from
the first day on which work is performed in the classification.
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(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a
fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in
the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as
part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written
request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of
Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under
the plan or program.
(2) Withholding. The subrecipient(s), shall upon written request of the EPA Award Official or an authorized
representative of the Department of Labor, withhold or cause to be withheld from the contractor under this
contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract
subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of
the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including
apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages
required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice,
trainee, or helper, employed or working on the site of the work, all or part of the wages required by the
contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action
as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such
violations have ceased.
(3) Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the
work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of
the work. Such records shall contain the name, address, and social security number of each such worker, his or
her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for
bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -
Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the
amount of any costs reasonably anticipated in providing benefits under a plan or program described in section
1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to
provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or
program has been communicated in writing to the laborers or mechanics affected, and records which show the
costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or
trainees under approved programs shall maintain written evidence of the registration of apprenticeship
programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios
and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all
payrolls to the subrecipient, that is, the entity that receives the sub -grant or loan from the State capitalization
grant recipient. Such documentation shall be available on request of the State recipient or EPA. As to each
payroll copy received, the subrecipient shall provide written confirmation in a form satisfactory to the State
indicating whether or not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the
most recent payroll copies for the specified week. The payrolls shall set out accurately and completely all of the
information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and
home addresses shall not be included on the weekly payrolls. Instead the payrolls shall only need to include an
individually identifying number for each employee (e.g., the last four digits of the employee's social security
number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-
347 is available for this purpose from the Wage and Hour Division Web site at
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http://www.dol.gov/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for
the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full
social security number and current address of each covered worker, and shall provide them upon request to the
subrecipient(s) for transmission to the State or EPA if requested by EPA, the State, the contractor, or the Wage
and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with
prevailing wage requirements. It is not a violation of this section for a prime contractor to require a
subcontractor to provide addresses and social security numbers to the prime contractor for its own records,
without weekly submission to the subrecipient(s).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the
contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under § 5.5 (a)(3)(ii)
of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i) of
Regulations, 29 CFR part 5, and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract
during the payroll period has been paid the full weekly wages earned, without rebate, either directly or
indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other
than permissible deductions as set forth in Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or
cash equivalents for the classification of work performed, as specified in the applicable wage determination
incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form
WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph
(a)(3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or
criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section
available for inspection, copying, or transcription by authorized representatives of the State, EPA or the
Department of Labor, and shall permit such representatives to interview employees during working hours on the
job. If the contractor or subcontractor fails to submit the required records or to make them available, the
Federal agency or State may, after written notice to the contractor, sponsor, applicant, or owner, take such
action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to make such records available may be
grounds for debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and trainees—
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they
performed when they are employed pursuant to and individually registered in a bona fide apprenticeship
program registered with the U.S. Department of Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the
Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such
an apprenticeship program, who is not individually registered in the program, but who has been certified by the
Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to
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journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the
contractor as to the entire work force under the registered program. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than
the applicable wage rate on the wage determination for the classification of work actually performed. In
addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the wage determination for the work actually
performed. Where a contractor is performing construction on a project in a locality other than that in which its
program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate)
specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be
paid at not less than the rate specified in the registered program for the apprentice's level of progress,
expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable classification. If the Administrator determines that
a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with
that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the
contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for
the work performed until an acceptable program is approved.
00 Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually registered in
a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor,
Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the Employment and Training Administration. Every trainee
must be paid at not less than the rate specified in the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination.
Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee
program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the
wage determination unless the Administrator of the Wage and Hour Division determines that there is an
apprenticeship program associated with the corresponding journeyman wage rate on the wage determination
which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee
rate who is not registered and participating in a training plan approved by the Employment and Training
Administration shall be paid not less than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any trainee performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed. In the event the Employment and Training Administration
withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less
than the applicable predetermined rate for the work performed until an acceptable program is approved.
(iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall
be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended,
and 29 CFR part 30.
(5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR
part 3, which are incorporated by reference in this contract.
(6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29
CFR 5.5(a)(1) through (10) and such other clauses as the EPA determines may by appropriate, and also a clause
requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall
be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses
in 29 CFR 5.5.
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(7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for
termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
(8) Compliance with Davis -Bacon and Related Act requirements. All rulings and interpretations of the Davis -
Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this
contract.
(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract
shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance
with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the
meaning of this clause include disputes between the contractor (or any of its subcontractors) and
Subrecipient(s), State, EPA, the U.S. Department of Labor, or the employees or their representatives.
(10) Certification of eligibility.
(i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm
who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by
virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government
contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
4. Contract Provision for Contracts in Excess of $100,000.
(a) Contract Work Hours and Safety Standards Act. The subrecipient shall insert the following clauses set forth
in paragraphs (a)(1), (2), (3), and (4) of this section in full in any contract in an amount in excess of $100,000 and
subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be
inserted in addition to the clauses required by Item 3, above or 29 CFR 4.6. As used in this paragraph, the terms
laborers and mechanics include watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which
may require or involve the employment of laborers or mechanics shall require or permit any such laborer or
mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times
the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth
in paragraph (a)(1) of this section the contractor and any subcontractor responsible therefore shall be liable for
the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case
of work done under contract for the District of Columbia or a territory, to such District or to such territory), for
liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or
mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (a)(1) of
this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work
in excess of the standard workweek of forty hours without payment of the overtime wages required by the
clause set forth in paragraph (a)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The subrecipient, upon written request of the EPA
Award Official or an authorized representative of the Department of Labor, shall withhold or cause to be
withheld, from any moneys payable on account of work performed by the contractor or subcontractor under
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DM13-952-1 85 3/18/2014 DWSRF NT Loan Contract (Municipal)
any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime
contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or
subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of
this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in
paragraph (a)(1) through (4) of this section and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (a)(1) through (4) of this
section.
(b) In addition to the clauses contained in Item 3, above, in any contract subject only to the Contract Work Hours
and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, the Subrecipient shall insert a
clause requiring that the contractor or subcontractor shall maintain payrolls and basic payroll records during the
course of the work and shall preserve them for a period of three years from the completion of the contract for
all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain
the name and address of each such employee, social security number, correct classifications, hourly rates of
wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the
Subrecipient shall insert in any such contract a clause providing hat the records to be maintained under this
paragraph shall be made available by the contractor or subcontractor for inspection, copying, or transcription by
authorized representatives of the (write the name of agency) and the Department of Labor, and the contractor
or subcontractor will permit such representatives to interview employees during working hours on the job.
S. Compliance Verification
(a) The subrecipient shall periodically interview a sufficient number of employees entitled to DB prevailing
wages (covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates.
As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The subrecipient must use
Standard Form 1445 (SF 1445) or equivalent documentation to memorialize the interviews. Copies of the SF
1445 are available from EPA on request.
(b) The subrecipient shall establish and follow an interview schedule based on its assessment of the risks of
noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract.
Subrecipients must conduct more frequent interviews if the initial interviews or other information indicated that
there is a risk that the contractor or subcontractor is not complying with DB.
Subrecipients shall immediately conduct interviews in response to an alleged violation of the prevailing wage
requirements. All interviews shall be conducted in confidence."
(c) The subrecipient shall periodically conduct spot checks of a representative sample of weekly payroll data to
verify that contractors or subcontractors are paying the appropriate wage rates. The subrecipient shall establish
and follow a spot check schedule based on its assessment of the risks of noncompliance with DB posed by
contractors or subcontractors and the duration of the contract or subcontract. At a minimum, if practicable, the
subrecipient should spot check payroll data within two weeks of each contractor or subcontractors submission
of its initial payroll data and two weeks prior to the completion date the contract or subcontract. Subrecipients
must conduct more frequent spot checks if the initial spot check or other information indicates that there is a
risk that the contractor or subcontractor is not complying with DB. In addition, during the examinations the
subrecipient shall verify evidence of fringe benefit plans and payments thereunder by contractors and
subcontractors who claim credit for fringe benefit contributions.
City of Port Orchard Page 53 Attachment VI: Labor Standards Provisions
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
(d) The subrecipient shall periodically review contractors and subcontractors use of apprentices and trainees to
verify registration and certification with respect to apprenticeship and training programs approved by either the
U.S Department of Labor or a state, as appropriate, and that contractors and subcontractors are not using
disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be conducted in
accordance with the schedules for spot checks and interviews described in Item 5(b) and (c) above.
(e) Subrecipients must immediately report potential violations of the DB prevailing wage requirements to the
Department of Commerce and to the appropriate DOL Wage and Hour District Office listed at
http://www.dol.gov/contacts/whd/america2.htm.
City of Port Orchard Page 54 Attachment VI: Labor Standards Provisions
DM13-952-185 3/18/2014 DWSRF NT Loan Contract (Municipal)
DEVELOPER EXTENSION AGREEMENT
FOR WATER AND SEWER UTILITY SYSTEM �MPROVEMENTS�
This Agreement ("Agreement") is made and entered into as of the day of
2017 (the "Effective Date") by and between the City of Port Orchard, a municipal corporation
("City"), and McCormick Communities, LLC, a Washington limited liability company
("Developer"). City and Developer are each referred to in this Agreement individually as a
"Party" and collectively as the "Parties".
RECITALS
A. City is a noncharter code seeendd alas city located in Kitsap County,
Washington, duly organized and operating under Chapter 35.A.023 RCW and is authorized to
furnish water and sewer service to property owners within and without the City in the manner
provided by law. This Agreement is entered into within the authority of RCW 36.70B.(170�
B. Developer is a limited liability company formed in the State of Washington, and
the owner of the real property described on Exhibit A (the "Property"). Developer acquired the
Property from GEM1 LLC, a Washington limited liability company ("GEM1").
C. City and GEMI are parties to certain agreements related to the Property, including
those listed on Exhibit B (the "Prior Agreements"). As the successor to GEM I, Developer is
bound by and subject to the terms of the Prior Agreements.
D. City and Developer recognize that the Prior Agreements require revision in light of
certain aspects of development of the Property.
E. This Agreement amends the Prior Agreements, to the extent that any provision of
this Agreement is inconsistent with any provision of a Prior Agreement.
BACKGROUND
I. The City's capital improvement plan ("CIP") provides for the construction by the City of
certain capital water facilities including a new reservoir holding approximately 1,800,000 gallons
of water, one new well house/pump station for an existing drilled but incomplete water well, one
new water well of at least 1000 gpm capacity, a water treatment facility, pump stations, pipelines,
and other related improvements (the "Water System Improvements").
II. The CIP also provides for the construction by the City of certain sewer facilities including
two new pump stations, each including a bypass connection vault, valves, dry pit, three pumps,
electrical systems and controls, generator set, odor control, and site work (the "Sewer System
Improvements").
III. The Water System Improvements and the Sewer System Improvements are intended to
serve the City water and sewer systems, and provide utility service to the Property and other
properties located in or near the City.
IV. A general description of the Water System Improvements and the Sewer System
Improvements, and the phases for construction of those systems ("Phases") is attached as Exhibit
Commented [AM I]: This agreement was drafted by the
Developer.
City should consider RCW 35.91 Municipal Water and Sewer
Facilities Act that provides statutory construct for the city to
establish an assessment reimburse area. Would accomplish what
the city desires with the developer.
Commented [AM2]: This is the RCW that Rob Putaansuu
provided to staff citing authority to enter into a Developers
Agreement.
However, 36.70B.170 is in the Counties RCW Chapter 36.
Where is the authority for cities under RCW Chapter 35 or optional
Chapter 35A for code cities to enter into Developer Improvement
Agreements?
C to this Agreement, and detailed information concerning the Water System Improvements and
Sewer System Improvements is available in the Plan Sets attached asdeseribed-m Exhibit D;
V. Together, the Water System Improvements and the Sewer System Improvements are
referred to in this Agreement as the "Developer Improvements".
VI. The Citydoes not ouFf wl . have the _ - s to . for the constmetieR ftl, D t
rimpreve ments. Developer is willing to construct the Developer Improvements for the City, at
Developer's initial cost, and City is willing to reimburse the Developer for the construction €erof
The City's portion of improvements, on the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the following terms and conditions, the Parties agree to and adopt the
statements in the Recitals and Background set forth above, incorporate them by reference herein,
and further agree as follows:
1. Construction of Developer Improvements. Developer shall have the right to
construct the Developer Improvements at Developer's own expense, in accordance with the Plan
Sets and the design guidelines and specifications approved by the City. Developer's construction
will occur in Phases as described on Exhibit C and Developer will be entitled to reimbursement
from the City as the construction Phases are completed. This will mean that Developer is entitled
to phased reimbursement prior to the time that all of the Developer Improvements are complete
and available for use. This provision for the payment of Developer over time as costs are incurred
by Developer is a critical element of this Agreement and is pot severable.]
2. Site of Developer Improvements.
2.1. A portion of the Water System Improvements consisting of Existing Well
# 11 (drilled but not cased or equipped with a well pump) and its appurtenant facilities,
existing McCormick Wells 1, 2, and 3, and a reservoir, are located on property
owned by the Developer in the northerly portion of McCormick Woods, near St. Andrews
Drive SW.
2.2. Most of the new Water System Improvements, including a new 1.8 million
gallon reservoir, Well #12 and its associated pump station, water treatment facilities, and
related water mains, will be developed on real property that is owned by the City (Tax
Parcel # the "Reservoir Site"). The Water System Improvements
that are to be developed on the Reservoir Site are referred to herein as the "Water
Campus". The City will continue to own the Reservoir Site.
2.3. Other Water System Improvements consisting primarily of water mains and
pipelines are expected to be developed and installed in public rights of way, including those
in Old Clifton Road, in roadways in currently undeveloped portions of McCormick Woods,
and where needed to (i) interconnect the City's 390 Pressure Zone with the 580 Pressure
2
Commented [jt3]: Is there a. question about the legality of this
provision? Why expressly call this out as not severable?
Commented [SAS4]: Development agreements often require
that a system be complete, operational, and accepted by the City
before reimbursement starts. This agreement specifies that each
Phase is reimbursable, and the entire project does not have to be
complete in order for Developer to be reimbursed for a completed
Phase. We need to define the Phases so that this is clear.
Otherwise, we would need a separate agreement for each Phase.
-----------------------------------------------------------------------------------------------------
45. Ownership of Sewer System Improvements. During construction of the
Developer Improvements, all of the improvements shall be owned by Developer, and Developer
shall bear the risk of loss of or damage to the Developer Improvements until the applicable
constructed Phase is accepted by the City. Upon completion of construction of each Phase of the
Developer Improvements and approval of the construction by the City as described in Section 7
below, Developer shall transfer ownership of the improvements by Bill of Sale the City shall
accept and own that Phase of the Developer Improvements, and the risk of loss or damage shal
thereafter be on the City. Delivery of the Developer Improvements and one or more Bills of Sale
mOa`yry�be made in connection with each Phase of the development, as reasonably required by the
t------------------------------------------------------------------------------------------------
Zone serving McCormick Woods, and to (ii) interconnect the 580 Pressure Zone to the new
660 Pressure Zone that will be installed to serve the portion of the Developer's Property
known as McCormick West; and to (iii) interconnect the 390/580/660 Pressure Zone water
mains and pipelines to Well #11 and/or the Water Campus.
2.4. The existing and proposed new Sewer System
Improvements are comprised of an initial upgrade to an existing City owned
lift station and ultimately the replacement of the upgraded lift station, and
construction of a second city owned lift station. The lift stations are commonly
referred to as McCormick Woods I and McCormick Woods 2, and are or will
be located on property owned by the City. Portions of the new Sewer System
Improvements will consist of piping that may be developed and installed in
public rights of way.
3. Temporary Easement for Use of the Reservoir Site. The City hereby grants and
conveys to Developer and to Developer's contractors, subcontractors and consultants, a temporary
easement on, over, across and through the Reservoir Site for Developer's use in the planning,
development, and construction of the Water Campus, the Developer Improvements, and each
Phase thereof. Developer's use of the Reservoir Site may include storage, staging, and parking of
vehicles as appropriate to the activities being undertaken by Developer in connection with the
Developer Improvements. This easement shall terminate upon the City's acceptance of the
constructed Water Campus, or upon a determination of non performance, and the City shall
thereafter have the right to record a notice terminating the temporary easement.
4. Ownership of Water System Improvements. City is the owner of the water rights
being developed in the Water System Improvements. During construction of the Developer
Improvements, all of the improvements shall be owned by Developer, and Developer shall bear
the risk of loss of or damage to the Developer Improvements until the applicable constructed Phase
is accepted by the City. Upon completion of construction of each Phase of the Developer
Improvements and approval of the construction by the City as described in Section 7 below,
Developer shall transfer ownership of the improvements by Bill of Sale, the City shall accept and
own that Phase of the Developer Improvements, and the risk of loss or damage shall thereafter be
on the City. Delivery of the Developer Improvements and one or more Bills of Sale maybe made
in connection with each Phase of the development, as reasonably required by the City.
Formatted: Font: (Default) Times New Roman, 12 pt
Formatted: Left, Indent: Left: 0.5", Space After: 10 pt, Line
spacing: Multiple 1.15 li, No bullets or numbering, Adjust
space between Latin and Asian text, Adjust space between
Asian text and numbers
Commented [AMS]: I added ownership of Sewer System
Improvements. The language may need to be wordsmithed. My
though was that if water is specifically stated, so should sewer. If
not the agreement would have used the definition of Developer
Improvements including both water and sewer ownership.
5-.6. Permanent Easemer l for Other Developer Improvements. Certain existing
portions of the City's Water System Improvements and Sewer System Improvements, including
wells, pipelines, lift stations, and pump stations, are or may be constructed on property owned by
the Developer. If there are permanent Developer Improvements constructed on the Developer
Property, Developer will execute in favor of the City if required, a permanent easement for the
Developer Improvements on the Developer Property, and deliver the easement document with a
Bill of Sale for the applicable Phase.
6:7. Construction and Approval Process.
6:�7.1. Developer is currently constructing Phase 1, consisting of the Sewer
System Improvements based on (describe, and identify design
plans?) (the "Current Constructionj'). Developer and the City agree that the Approved
Construction Costs (as defined in Section _ below) for the Current Construction are Four
Million Four Hundred Forty Thousand Dollars ($4,440,000.00). Upon completion of
Current Construction, City shall be obligated to pay Developer the Approved Construction
Costs for the Current Construction in accordance with the process described in Section 10
below.
6-4,7.2. Developer will contract with an engineering firm for the
development of the Plan Sets for completion of the remaining Phases of the Developer
Improvements, consistent with the preliminary plans described on Exhibit D. The
Developer Improvements will be designed consistent with adopted City codes and design
standards. Prior to the commencement of construction that requires approval by the
Washington Department of Health ("DOH") and/or Department of Ecology (DOE), City
shall obtain all required approval(s).
6,17.3. The Parties acknowledge that the Plan Sets for the Phases of
construction of the Developer Improvements are not complete. The final plans for the
development of any Phase of the Developer Improvements will be prepared based on
design guidelines of the City, and further refined for use by Developer, at Developer's cost,
in consultation with the City or its2s consultant " . When
the Developer has a "_% Plan Set" for —any Phase and is prepared to construct
improvements, Developer will give written notice to the City that the Plan Set for the
applicable Phase(s) is complete and ready for the City's review and approval and City will
review and approve the final Plan Set, construction requirements, and the proposed
schedule for construction of the applicable Phase, as set out in this Agreement. The
Developer shall provide to the City upon completion and prior to commence of work a
copy of the final Plan �Lsd-
6�7.4. City shall have fo fives 45- 0) days to review and
approve the submitted Plan Set(s). City's approval will not be unreasonably
withheld, conditioned, or delayed. If City has an objection to, or requires
revision of, any aspect of a Plan Set, Developer and City shall meet and confer
with the project engineer and City engineers to resolve the objection or
implement the revision. If the Gity hires BRC oanother ,.,.nsuliant to re
Commented [AM6]: Public Works should comment.
Commented [711117]: This sentence can go away:.. serves no
purpose.
COroMented JAMB]: Public Works provides 111
Commented [TH9R8]: This should reference the Opinion of
Probable Costs that were calculated by our consultant? _ JI
Commented [AM10]: What codes and design standards are
being referenced? I suggest attaching as Exhibit
- --- -
(Commented [TH11]: ECY
Commented [AM121: Do these approvals attached to the water
permit holder? Are these approvals usually obtained for a
developer?
Commented [TH13]: From DOH and ECY )
- ICommented [AM14]: This statement needs to be reconciled
with Background M The City should make clear it receives a copy
of the approved Plan Set following any changes.
.. Plan Cat t.. perform ... p ..die i eet:ons during the nstruet:., o f
�--J Plan -•_- _._ e._ Y__a_.____ Yam__..».- Y--..... _.. »». _..b ...�-........ »�...... ... »..J
Y"�
DPhase, Developer- Y"J
shall the cost of the ea It shallt d th t be in
addition to the Agreed Genstfuetion Costs of the Peveloper improvement
[tialess the City ean quanti6, what inspe-e-tionss N11 . be required and !hat ean be
prieed into the ]{Developef and the City shall document the City's plan
approval in writing.
6,5-.7.5. Construction contracts entered into by Developer shall name the
City as a third party beneficiary, shall provide for assignable construction warranties
against defects in materials and workmanship to last for a two (2) year period, and shall
require customary insurance coverage, under which both Developer and the City shall be
named insured parties.
6-.6-.7.6. Developer shall construct the Developer Improvements at its initial
cost and expense, including the costs of obtaining permits and defending lawsuits, if any.
Developer shall provide the City with access to construction sites at reasonable times upon
reasonable advance notice, and City agrees that all inspections shall be conducted in full
compliance with applicable health and safety requirements, in coordination with the on -
site personnel constructing the Developer Improvements.
647.7. Upon completion of any Phase, Developer shall restore all affected
City property which is disturbed by construction to as good a condition as it was in prior
to the commencement of construction, and certi to the City that the construction
is complete and that all liens and encumbrances are released.
-7-.8. Modification of Plans after City Ap rn oval.
8.1. Developer shall have the right, at its cost and expense, its —its
diseretion—and not subject to additional reimbursement, to make ninon -material
modifications; to its construction plans after _City_ approval, for purposes of increasing the
efficiency or effectiveness of its construction, in order to accommodate for construction
elements such as (but not limited to) conditions encountered in development, upgraded
materials or methods of construction available at the time, or modified routes of
transmission within anticipated construction pathways. Developer will inform the City in
wwritingprior toe€any such modifications.
7—.2 8.2. Developer shall not make material modifications to any construction
plans or Plan Sets without providing notice to, and obtaining the approval of, the City in
accordance with Section 6 above, including the written confirmation of an adjustment to
Agreed Construction Costs approved by the City, if any. Developer shall pay the increased
costs and expenses of any such change, unless the additional costs and expenses arise out
of any action taken by the City after the date of this Agreement.
7-.-3-.8.3. City shall have the right to require revisions to the Plan Set for any
Phase of the Developer Improvements after its initial approval, upon City's written notice
Commented [AM 151: Allowing the Developer to pay the City's
consultant(s) is a clear conflict of interest and should not be
allowed. Any consultant hired by the city should be incurred as city
expense. Inspection costs, if any, should be identified.
- Commented [AM161: Non -material defined
( Commented [TH17]: And obtain City approval in writing, J
Commented [AM18]: The City should maintain a level of
oversite and control. I would defer to Public Works to what degree
"modifications" means. Its plural.
Commented [AM19]: Require City approval for non -material
changes?
to Developer of the need for, scope, and major elements of the changes required ("Change
Order"). Any Change Order required by the City shall include either (i) an increase of the
Agreed Construction Costs to pad for the costs of the Change Order, or (ii) a direct Commented [AM zo]:AgreedCon:have
=meanings,
undertaking by the City that it will pay the contractors and suppliers for all costs incurred Construction Costs Clarify if the terms
in implementing the Change Order. used interchangeable?
8.9. Agreed Construction Costs. The Feimburs@meat amount for eaeh Phase i
set out in Exhibit I ` with the Phase description. The total of the Feimbursement a „*Agreed
Construction Costs for the Developer Improvements has been determined by RH& he City to
be $16,425,000 of which $4,440,000 is for Sewer System Improvements and $11,985,000 is
for Water System Improvements. The City has reviewed the Agreed Construction Costs for
the Water System Improvements set forth on &hibit C and has concluded that the Agreed Formatted: underline
Construction Costs are reasonable. t, �.. tho n feed-C--- tr etion
City -2rg���s-ro=wry-=wrTcr��a�oii�cr�orrvrx
as sot forth in Section ' n The Developer shall provide the City the acquisition value without
tual str etion easts of the Developer Improvements,
the amount the City would have otherwise paid for the Water System Improvements and Sewer
The PaFties ....1.„,...,ledge and agFee that this fixed
System mprovement ...,, . »...,,., „ ,,..,. ,. ,,,,, „e,,,-",„ou„.z Commented [AM21]: Governmental Accounting Standards
puts risk on the City that the Agreed Gonstruetion Costs may he--, in FOxcesis of the aetual Board (GASB) 74. The improvements (assets) are to be listed at
their acquisition value upon the city's acceptance through the bill of
;tmetion easts incur ed and paid h , the D@yelapef f th Water System 1 t It
-�--` --'- - - - - - » .....» r».» ., j ...� .�.,. � „r,...,,. .. �..,� �...... ...r..,..,.....,.,,. sale.
also PUILS Fisk OH th@ DON1010POF that the AgFeed Consirtietion Costs May be less than the aetual
eenstfuction eosts ineumd and paid by the Developer for the Water System impr..yeme„tom
The Gity and Developer agree that this alleeation of fisk is reasonable aPA speeifieally
eontracted for and not wverable Absent a change in construction required by the City but not
set forth in the Plan Sets as of the date of the this Agreement, the City will not be required to
pay an amount in excess of the Agreed Construction Costs for the Developer Improvements.
9.10. Completion and Documentation.
9A 10.1. Upon completion of a Phase of construction, Developer shall
inform the City that final inspection and acceptance are required, and certify to the City
the final completion of construction of the applicable Phase of the Developer
Improvements (each, a "Completion Certificate"), and deliver "as -built" plans to the
City for that Phase. The City shall have forty fivetl3H4y (4530) days to conduct its final
inspection and accept the Phase. If the City has objections related to unauthorized or
defective work, then the City shall make its objection in writing and the City and
Developer shall meet with the project engineer and City engineers to resolve the City's
objections. City's failure to object shall not, however, constitute acceptance of any
unauthorized or defective work or material.
9,:10.2. City shall promptly act to obtain any required City and County
approvals necessary or appropriate for the City's use of the completed Phase, including
City Council approval. Developer shall obtain other approvals, including approvals or
permits required by Department of 9Health.
93,10.3. Following acceptance by the City, Developer shall deliver to the
City the Bill of Sale andincluding acquisition value for the Developer Improvements for
the Phase, and shall assign to the City all construction warranties. Developer shall also
deliver to the City a Maintenance Bond in an amount equal to twenty percent (20%) of
the actual costs of construction of the delivered Phase and valid for a period of two (2)
years after completion of construction.
4&11. Amount and Method of Reimbursement. After the City's acceptance of a Phase
of the Developer Improvements, the City shall reimburse the Developer from the collection of
Water Capital Facilities Charge thirty-ei fight (38%) for that portion of Water System
Improvements. -and from the collection of Sewer Capital -General EacilitW ChareeFee Slxt Commented [AM22]:-Sewer Capital Facility fee is defined
six percent (66%) for that portion of Sewer Improvements on properties attached as Exhibit in Polv1G 13.04.040 (2)- consists of two components -General
the Ad/ .. .«t ..F ♦bs Approved !'�..«..t«..s:,.« !'....tom for- the Dl..,..e (,... ♦Ae n t Facility Fee and Wastewater Treatment Facility Fee. -need to use
,. .,,a.. unt ��" Sewer General Facility Fee in document
Win) as follows:
40-.2-.1_1.1. The total amount of the Water System Improvements has been
determined to be $11,985,000 with the Developer responsible for sixty two percent
(62%) of the cost with the City reMonsibili of f thinly -eight (38%) from Water Capital
Facilities Charge, and total amount of the Sewer System Improvements has been
determined to be $4,440,000 with the Developer responsible for 34% and the City
responsibility of sixty-six percent (66%) from Sewer Caf3italGeneral Facilities
48,3�11.2. The City's payment of Unit Reimbursement amounts
("Payments") shall be calculated as of june 30 and Deee.. ber- 3 t August Iof each year,
and paid to Developer within thirty (3045) days after eaeh ealeulatienthe calculation
date. If at any point in time, or from time to time, Developer has recovered one hundred
percent (100%) of the A gfee l r onst. ue fi,,« &)ststotal amount of reimbursement for all
of the Phases that Developer has constructed, the City shall cease making Payments to
Developer until another Phase of construction of the Developer Improvements is
completed.
The total amount of P"ents--reimbursement to Developer for Water
System Improvements shall be thirty- ei hght ern cent eked -percent (10Q8%) of
the Approved Construction Costs for the Current Construction and each of the Phases
(including City Change Orders, if applicable). The total amount of reimbursement to
Developer for Sewer System Improvements shall be sixtv-six (66%) of the Approved
Construction Costs for the Current Construction and each of the Phases (includinf=- City
Change Orders, if applicable). If Developer has received the benefit of a full
reimbursement of the Approved Construction Costs for any completed Phase of the
Developer Improvements, then any future scheduled reimbursements or-eire&4othat
Phase of the Developer Improvements shall terminate. and eonneetion eharge
Commented [AM23]: A statement, not a contract provision
upon which the parties will act upon. Present value is driven by a
nominal discount rate. The City learned from the Bethel soft landing
agreement that such can go against the city.
Commented [AM24]: There is no definition of "accelerated
recovery" or additional reference to what it means.
Commented CAMS]: Credit(s) not referenced or deFlned�
anywhere else.
_ Exhibit o c:t �h.�l�� held H ri,o r:r, nr:l '.t r n 1
iit-�nxnvir co eet@ y t ity o eld by thczrryu rr-paid o Develope-r
11.3. Formatted: Font: (Default) Times New Roman, 12 pt
11.4. For any residential connection made by any lot to the Developer Formatted: Indent: Left: 0.5"
Improvements from and after the date of this Agreement, City shall pay
from Capital Facility Charge to Developer the sum of Twelve Thousand
Five Hundred Dollars $ t 2 500 for Water System Improvements, and
for Sewer System Improvements, and for any coni,- nereial
non-residential development, the -sum of $ (each,
a "Unit Reimbursement").
11.5. The City shall be entitled to a ten percent 00%) administrative charge
from the amount of reimbursement described in Section 11.
44.4:11.6.
. e.
—----------------------------------------------------------------------------------- -:
12. Connections to Developer Improvements. Following the City's acceptance
of any phase of the Developer Improvements, all of Developer's Property and other property to be
served by the constructed Developer Improvements shall be allowed to connect, on an equal basis,
by payment of the City's standard connection charge including without limitation the City's
Capital Facility Connection Charges for water and sewer ("CFC"). The Property shall not be
subject to any ULID, "latecomer" fee or additional charge for connection(s) to the Developer
Improvements provided for under this Agreement beyond that of the City's standard connection
charge.
4-2-.13. Cites Right to Operate Utility Services and set Charges / Fees. Nothing in
this Agreement shall affect or impair in any manner the right of the City to regulate the use of its
water utility system in which the Developer Improvements will be incorporated, including without
limitation, the operation, maintenance, repair, connection charges, impact fees, capital facility
charges, usage charges, and all other aspects of the City's water utility system. This Agreement
does not authorize or require the City to establish a defined service area or to charge latecomer
fees to any property owner. Any such agreement must be by separate written instrument executed
by City and Developer
4-3.14. Relationship of the Parties. This Agreement does not establish the
Developer as the agent or legal representative of the City for any purpose whatsoever. It also does
not give the City the right to manage or control the work of the Developer in constructing the
Developer Improvements, extent to the extent that the Plans must be approved by the City prior to
the Developer undertaking construction of any Phase, and the City has the right to inspect all
elements of the Developer Improvements for construction in compliance with the approved Plan
andSets and all applicable governmental regulations prior to accepting them. This Agreement is
not a "Latecomer Agreement" under RCW 39.
44.15. Assignment. Developer shall have the right_to assign this Agreement, and
to sell or contract to sell all or any portion7of the Property, but shall give the City at least forty
tltiFtyfive (4530) days' prior written notice of any such assignment, and written notice within fot
Commented [RN261: Any non-residential connection would be
charged water cfc based on the size of the meter and sewer cfc
based on estimated ERU's
Commented [TH27R26] Agreed
Commented [AM281: What is the definition of "any
Commercial development."
Formatted: Indent: Left: 0.55", No bullets or numbering
Formatted: Font: (Default) Times New Roman, 12 pt
Formatted: Normal, No bullets or numbering
Commented [AM291: Confirm with Public Works
Commented [AM30]: Does the City want a right to review "any
portion of the Property" sale? Could this lead to "mini -Developers
within the Agreement? And the associate work tracking and
working with each?
fivethi#y (4530) days after the sale of all or a material portion of the Developer Property. If
Developer sells all or a material portion of the Developer Property to a single buyer who will
construct any Phase of the Developer Improvements, then that buyer shall be a successor
Developer under this Agreement; however, a buyer who does not construct any of the Developer
Improvements shall not be a successor "Developer" under this Agreement. All Payments due under
this Agreement shall be paid to the original Developer until the City has received written notice
from Developer and the successor Developer of the name and address of the party to whom
succeeding Payments should be delivered.
1-546. Notices. All notices and correspondence to be sent pursuant to this
Agreement shall be sent to the Parties at the following addresses:
Developer: City:
City Clerk
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Each Party is responsible for providing the other with a valid mailing address throughout the
duration of this Agreement, and shall have the right upon sixty (60) days prior written notice to
the other Party to change its address. The City shall send the amounts payable to the Developer
under this Agreement to the Developer's mailing address by mail or as otherwise agreed by the
Parties.
4-6,17. Termination of Developer's Right to Receive Reimbursement
omits. This Agreement shall remain in force and effect from date on which it is executed by
the Parties, until the Developer has received 100% of the Agreed Construction Costs of all
constructed Phases of the Developer Improvements, as provided for herein.
k-7-.18. EntiFe AgreementEntire Agreement; ; --Natw-eBindinIz Nature.
This Agreement constitutes the entire agreement between the Parties concerning Developer's
construction of, and the City's payment for, the Developer Improvements, and, subject to the
limitations set forth in Section 10, is binding upon the heirs, executives, administrators,
successors and assigns of the Parties. This Agreement shall not be modified or amended except
in a writing signed by both Parties. This Agreement shall be recorded in the real property records
of Kitsap County at the expense of Developer.
-1-M9. No Waiver or Third Party Beneficiary. No waiver of full or complete
performance by either Party shall be construed or operate as a waiver of any other default, breach,
or failure to perform any of the terms, covenants, or conditions of this Agreement. This Agreement
is made and entered into for the sole protection and benefit of Developer and the City and their
successors and assigns. No other person shall have a right of action based upon any provision of
this Agreement.
4-4:20. Exhibits. All exhibits referred to in this Agreement are by this reference
made a part of this Agreement as though set forth in full.
20:21. Further Action. The Parties agree to cooperate and to execute all
further documents, applications and other instruments required to carry out the purposes of
this Agreement including, but not limited to, compliance with applicable SEPA and other
environmental and land use development rules and regulations relating to the installation of the
Developer Improvements.
24 22. Severability. The enforceability, invalidity, illegality or termination of
any provision of this Agreement (except any termination of the Developer's right to receive
payment over time) shall not render any other provision of this Agreement unenforceable,
invalid or illegal, and shall not terminate this Agreement or impair the rights or obligations of
the Parties. Notwithstanding any other limitation in this Agreement, the City reserves the authority
to impose reasonable new or different requirements under this Agreement, to the extent required
by a serious threat to public health or safety.
22.23. Arbitration of Disputes. If the City and Developer are unable to resolve any
disagreement or dispute, they agree that the outstanding disagreement or dispute will be settled by
binding arbitration (unless otherwise below, in which event the dispute may be resolved by
litigation). The arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") in effect when the arbitration begins and
shall be conducted by a single arbitrator experienced in the matters at issue and selected by the
parties (or, failing agreement as to an arbitrator, then an arbitrator appointed by AAA from its
panel). The judgment or award rendered by the arbitrator may be entered in any court having
competent jurisdiction in accordance with RCW Chapter 7.04. The arbitration shall be held in
Seattle, Washington or such other location as may be agreed by the parties. The parties agree that,
except as provided below, all disputes and issues arising out of this Agreement shall be subject to
arbitration unless otherwise mutually agreed. Provided, however, that the following matters shall
not be submitted to arbitration unless agreed by the parties: (i) A claim or cause of action in equity
or seeking primarily equitable relief, or (ii) Proceedings in which a party or parties other than City
and the Developer are joined or are required to be joined under applicable law.
23724. Applicable Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington. Any action with respect to this Agreement
shall be brought in Kitsap county Superior Court.
Add signature blocks and approvals.
EXHIBIT A
Developer Property
EXHIBIT B
10
City —GEM 1 Prior Agreements
1. Annexation Agreement / Development Agreement (Rec. # 201112190136)
2.
EXHIBIT C
Phases lneeds further development]
Phase 1 Pump Stations - McCormick Woods 1 and McCormick Woods 2
Agreed Construction Costs $4,440,000
Phase 2 All Water System Improvements described in
which are necessary or appropriate to interconnect the water supply serving McCormick Woods
with the existing City 390 Pressure Zone through a 600 gpm pump station located to the southeast
of the new development proposed by Developer for the McCormick Woods property.
Agreed Construction Costs
Phase 3 All Water System Improvements described in
which are necessary or appropriate to complete Well #11, install the 750 gpm well pump and any
required water treatment facilities, install required water mains and piping, and interconnect Well
#11 with the 580 Pressure Zone serving McCormick Woods. Well #11 and its appurtenances will
initially serve the new Lots that are planned to be developed on McCormick Woods.
[FEASIBLE???]
Agreed Construction Costs $
Phase 4 A new water treatment facility (WTF) on the Reservoir Site, which will be
used to treat the water from Well # 11 and Well # 12 in order to remove low levels of hydrogen
sulfide and manganese (unless the WTF was a required part of the Phase 2 construction).
Agreed Construction Costs $
Phase 5 The remainder of the Water System Improvements described in
to be constructed on the Reservoir Site, including without limitation, Well
#12, its well pump station, the Reservoir, an emergency power generator, and all required piping.
Agreed Construction Costs $
Phase 6 Lots in McCormick West may proceed to final plat in a number of divisions
or planning areas ("Divisions"). The final plat for each Division of McCormick West shall
constitute a Phase. During the construction of preliminary site improvements on the various
Divisions of McCormick West, Developer will install the 660 Pressure Zone distribution piping
and any required interconnection with the Water Campus. Completion of the Water System
Improvements for each Division shall constitute completion of a Phase.
Agreed Construction Costs
11
Phase 7 Following completion of installation of the 660 Pressure Zone on
McCormick West, Developer will interconnect the 660 Pressure Zone piping to the 580 Pressure
Zone piping at two points, with pressure reducing valves as described in
Agreed Construction Costs $.
EXHIBIT Commented[SC31]: Thomas Hunter will provide the
information for this section. THOMAS HAS THE TECHNICAL
Plan Sets MEMORANDUM ON WHAT NEEDS TO BE BUILT. THOMAS WILL
MATCH THIS UP WITH THE TECHNICAL MEMORANDUM. BALL STILL
IN THOMAS COURT
-describe- Commented [TH32R31]: These documents were provided to
Light House as a whole on 6.13.17
Based on the changes to herein they will need to be modified.
12