HomeMy WebLinkAboutR-2010-058 Automated Meter Reading System Loan ApplicationA RESOLUTION
RESOLUTION NO. R-2010-58
to authorize the City Manager to execute all necessary documents to
complete and submit an application for a loan from the Washington State
Public Works Trust Fund in the amount of $5,000,000 for an Automated
Meter Reading System, and, if the loan application is approved, to
execute all necessary certifications, agreements and other documents to
complete the loan transaction
WHEREAS, the City of Yakima recognizes that the provision of infrastructure is
important to all residents and businesses of the community; and
WHEREAS, in the 2004 Water System Plan Update an evaluation of the domestic water
system identified deficiencies in the water meter reading system for the City of Yakima,
including the need for an automated meter reading system; and
WHEREAS, installation of an automated meter reading system will help correct the
deficiencies identified in the aforementioned plan to optimize water meter reading, and meet the
water use efficiency goal and measures established by the City of Yakima,; and
WHEREAS, these improvements are consistent with both the 2004 Cost of Service and
Rate Study and the City's Capital Improvements Plan (CIP); and
WHEREAS, this project is consistent with the Automated Meter Reading policy issued
adopted by the Council with the 2010 budget; and
WHEREAS, the Washington State Public Works Trust Fund has made low-interest loan
funds available for the construction and repair of water utilities; and
WHEREAS, the amount of local match funds provided will afford to the City a generous
interest rate of 0.5% on the $5,000,000 loan; and
WHEREAS, based on the foregoing, the City Council has determined that it is in the best
interest of the City to apply for funding from the Washington Public Works Trust Fund for an
automated meter reading system, now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized and directed to execute all necessary documents
to complete and submit an application for a loan from the Washington State Public Works Trust
Fund in the amount of $5,000,000 for an automated meter reading system and, if the loan
application is approved, to execute all necessary certifications, agreements and other
documents to complete the loan transaction.
ADOPTED BY THE CITY COUNCIL this 4th day of May, 2010.
ATTEST:
City Clerk
Micah Cawley, NYayor
2010 MAJOR POLICY ISSUE
DEPARTMENT: City Management DIVISION: Water/Irrigation &
Wastewater
POLICY ISSUE TITLE:
Automation of Meter Reading (Automated Meter Reading (AMR)) -- Budgeted
a.
Proposal — This proposal is to automate the water meter reading functions. This is also known as
Automated Meter Reading (AMR) and Automated Meter Infrastructure (AMI). This is where water meter
reads can be sent via radio signal to a central location. This can be as often as several times an hour,
several times a day or once every two months. The Cascade Natural Gas has automated their meters and
the PacifiCorp is in the process of automating all of their meters, they are about half done with their over
300,000 customers.
Automated meter reading (AMR) was contemplated in the 2004 Water System Plan as part of the
Conservation Measures and as a way to assist in Demand reduction. The Plan also anticipated using
AMR to help reduce/control "Unaccounted for Water (water produced but not sold through water meters,
this is also lost revenue). Unaccounted for Water is near 20%, the State requires it to be less than 10%.
AMR was included in the 2007 Water Cost of Service and Rate Study. This study included this project in
the financial plan and required rate design. The Study did anticipate using a Public Works Trust Fund
loan (PWTF), however as the PWTF has been eliminated from the State budge we will need to finance
with a revenue bond.
Part of the City's Water Use Efficiency Goals and Measures, adopted by Council in January 2008 was to
reduce water loss to below 10%. AMR was anticipated to be integral part of the process of reducing
water loss by having the ability determine water lass on a daily basis.
The beginning of the AMR project was included in both the 2008 and 2009 budgets. In 2008 a major
distribution leak study and in 2009 and the beginning of the AMR evaluation.
At the July 21, 2009 Council meeting an inter -local agreement with Selah and Nob Hill Water was
adopted and a contract for the Upper Yakima County Water Meter Automation Evaluation Study was
approved. Through this evaluation we will determine the possibilities of using some shared equipment,
the type of system(s) we will need and the estimated costs of the system(s) including any projected
revenue increases and personnel savings.
Fiscal Impact — The Upper Yakima County Water Meter Automation Evaluation Study contract was
approved by Council on July 21, 2009. It is too early in the evaluation to have a firm figure on the total
0
cost. Cost will depend on many factors including items like type of system selected/recommended and
number of meters requiring upgrade/replacement.
Proposed Funding Source — It is anticipated that a revenue bond with the repayment shared between
Water and Wastewater will finance the infrastructure. Wastewater shares in the costs as accurate
meter reading directly affects the wastewater revenue stream.
Public Impact - Improved reliability of water service, greater control over maintenance activities, more
accurate meter reading, ability to inform customer of excessive water consumption as the issue arises
vs waiting up to tow months, ability to help large uses complete water use audits as an AMR system
can transmit water use up to several times an hour, and eliminate estimated meter reading.
Personnel Impact — The Upper Yakima County Water Meter Automation Evaluation Study contract was
approved by Council on July 21, 2009. It is too early in the evaluation to have a firm plan for
personnel. It is anticipated there will be some reassignment of meter reading personnel and
possibility some position elimination.
Required Changes in City Regulations or Policies — An amendment to the job classification, Civil
Service approval, and pay ordinance may be required.
Legal Constraints, if applicable — None.
Viable Alternatives — Leave as is or do a portion of the reorganization
No action would result in meter reading program remaining as is..
Conclusion and/or Staff Recommendation — Staff recommends approval of the policy direction.
•
•
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. ` ILi-
For Meeting of May 4, 2010
ITEM TITLE: Consideration of a resolution authorizing the City Manager to execute documents
and agreements pursuant to a loan application to the Washington Public Works
Trust Fund for $5,000,000 to drill an automated meter reading system.
SUBMITTED BY: Dave Brown, Water/Irrigation Manager
Dave Zabell, Assistant City Manager
CONTACT PERSON/TELEPHONE: Dave Brown / 575-6204
SUMMARY EXPLANATION:
The City of Yakima Water/Irrigation Division requests Council approval to apply for a
$5,000,000 loan from the state Public Works Trust Funds for an automated meter reading
system consistent with the policy issue adopted by Council with the 2010 budget. This
application would be for 2011-20012 funds, with the work scheduled to be completed from 2011
to 2012. In order to secure the lowest program interest rate of 0.5%, the City is required to
provide a local match (from non -grant sources) of at least 15%. The Water/Irrigation Division is
proposing the match be provided from the Water and Wastewater Capital Improvements
Program budgets (reserves). The total project cost is estimated at $10,481,250.
Resolution X Ordinance Contract Other(Specify)
Contract Mail to (name and address):
Phone:
Funding Source
477 Water CIP Fund
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Approve resolution authorizing the City Manager to execute all
necessary documents to complete and submit an application for a loan from the Washington
State Public Works Trust Fund in the amount of $5,000,000 for an automated meter reading
system and, if the loan application is approved, to execute all necessary certifications,
agreements and other documents to complete the loan transaction.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
AMENDMENT FACE SHEET
Loan Number: PC13-961-074
PROJECT COMPLETION AMENDMENT
Washington State Department of Commerce
PUBLIC WORKS TRUST FUND — CONSTRUCTION LOANS
1. Contractor
City Of Yakima
129 N. Second Street
Yakima, WA 98901
2. Contractor Doing Business As (optional)
, N/A -
3. Contractor Representative (only if updated)
N/A
4.'Public Works Board Representative (only if updated)
N/A
5. Original Contract Amount
$5,000,000 00 .
6. DeObligation
„0.00 '
7. Final, Contract Amount
$5,000,000.00
8. Amendment Funding Source
Federal: ❑ State: 0 Other: ❑ N/A: ❑,
9. Amendment Start Date
Amendment Execution Date .
10. Amendment End Date
. June 1, 2032
11. Federal Funds (ars applicable): ' . ,'
N/A
Federal, Agency:, - CFDA Number
N/A j „N/A '
12. Amendment Purpose: '..
The purpose of this amendment;is to,
certify theproject completion for this.Public Works Trust Fund Loan.
State Public Works Board, and Borrower/Contractor acknowledge and accept
As Amended and attachments and have executed this Agreement/Contract
as of the date and year referenced above. The rights and obligations of both
Amended are governed by this Agreernent/Contract Amendment and the
by reference Amendment Terms and Conditions, including Attachment I.
A copy of this Agreement/Contract Amendmentshall be attached to and made a
between the Board and the Borrower/Contractor. -Any reference; in the. original
or the ';Contract" shall mean the "Agreement As Amended" or "Contract As
.. _
The Board, defined as the Washington
the terms of this Agreement/Contract
Amendment on the date below.to`start
parties to this,Agreei'nent/Contract As
following: other documents incorporated
Certified Project Cornpletion Report.
part of the original Agreement/Contract
Agreement/Contract to the "Agreement"
Amended," respectively.
FOR T E'BORRO ER/CONTRACTOR
FOR PUBLIC WORKSBOARD
gna ur
0 r
tl v i !I J, 20 w ..rcl
Stan Finkels ein, Public Works Board Chair
o.l�u�� 2- J/
Print Name
U C 1 I.L.((l ti4 on 141 �1 e—
Date l
APPROVED AS TO FORM ONLY
'This 22"d Day of March, 2013
Title
S-7 / — Jr
Date
Bob Ferguson
Attorney General
Signature on File
Kathryn Wyatt
Assistant Attorney General
City of Yakima
PC 13-961-074
Page 1
5/19/2015
Project Completion Amendment
Public Works Trust Fund
AMENDMENT TERMS AND CONDITIONS
Contract Number: PC13-961-074
PROJECT COMPLETION AMENDMENT
PUBLIC WORKS TRUST FUND — CONSTRUCTION CONTRACTS
Loan Number: PC13-961-074
Project Name: Automated Meter Reading System
Contractor: City of Yakima
The purpose of this amendment is to acknowledge the project has been certified complete and the final contract amount,
interest rate, and local share on the above referenced contract have been adjusted, if necessary, as reflected below.
The Public Works Board, (or its successor) a department of the state of Washington and the Contractor agree to amend the
above referenced contract as described below.
The amount of the loan shall be the Final Loan Amount as identified on the Declarations Page. The interest rate shall
be the Final Interest Rate as identified on the Declarations Page, per annum on the outstanding balance.
City of Yakima
PC 13-961-074
Page 2
5/19/2015
Project Completion Amendment
Public Works Trust Fund
ATTACHMENT I: CERTIFIED PROJECT COMPLETION REPORT
PUBLIC WORKS TRUST FUND - CONSTRUCTION LOANS
Loan Number: PC13-961-074
Project Name: Automated Meter Reading System
Original or Extended Project Completion Date: 8/28/2017
Chief Executive Officer Certification
Contractor: City of Yakima
Address: 129 N. Second Street
Yakima, WA 98901
The Chief Executive Officer of the Borrower/Contractor certifies that:
• To the best of his/her knowledge, the"financial information and data`;provided in this report is true and correct as of
the signature date indicated below, and no project costs listed in this report incurred more than twelve (12) months
before agreement/contract execution or after the date'of the' project; completion;
• Records supporting the: information provided in this:report are onfile and wilt be made available by the
Borrower/Conttactor,upo • uest; d
Signa - f Chief\Executive Officer
1/1X/ ft.
Print Name:
Date of Signature
Project Engineer or Consultant Certification
The Project Engine or Consultant'oftheBorrower/Contractor certifies"that:
• To the best of his/her knowledge; the.data providedinthis.report>is true and correct as of the signature date
indicated below; a,,*
CITY CONTRACT N0:.°21'
RESOLUTIONNO:R-2010-o5g
g
• The project was=completedin "L
accordance ith t eLoan AgreementJContract's Scope of Work, and
• The project was completed on 57/ 2-9/ S. �£ . -.
(Actual Date of"P.roject Completion)
Signature of Project En ineer or Consultant
ENN c'TN ALG"K,ONvnt/t.
Print Name
PitcJ SECT mA NAceit
Title
SAO/ix)
`Date of Signature
City of Yakima Refund Invoice
PC13-961-074 5/20/2015 Public Works Trust Fund
'
•
••';
,•••
, 4,4
•
`17;;') X S•4:,--' ''''74...., iT
City of Yakima
PC13-961-074
Page 3
5/19/2015
Project Completion Amendment
Public Works Trust Fund
AMENDMENT DECLARATIONS
Amendment Title
Amendment Number
Construction Completion Amendment
Amendment X
CLIENT INFORMATION
Legal Name
Loan Number
City of Yakima
PC 13-961-074
PROJECT INFORMATION
Title
Project City
Project State
Project Zip
Automated Meter Reading System
Yakima
Washington
98902-1225
LOAN TERMS and CONDITIONS
Loan Amount
De -obligation
Final Loan Amount
Loan Term
Current Interest Rate
Final Interest Rate
Loan Reimbursement
Date
Payment Month
5,000,000.00
0.00
5,000,000.00
20
0.50
0.25
9/1/2011
June 1
AMENDMENT DECLARATIONS (continued)
SCOPE OF WORK
Amendment Title
Loan Number
Amendment #
Title
Scope of Work
Construction Closeout Amendment
PC13-961-074
Amendment X
Automated Meter Reading System
This project will enhance the water system by modernizing the existing
metering system. Project costs include, but are not limited to, permits,
engineering, bid documents, and construction. These improvements will
allow Yakima to meet Local, State, and Federal requirements.
Amortization Schedule for Contract Num: PC13-961-074
Contractor Nellie: Yakima ty'
Project Name: :Automated Nleter,iReading System:'?
Loan`•Inforrrtatfor ?Lan#.
Loan Amount: $5,000,000.00
Interest Rate/Type: 0.2500 % (Simple)
Amortized Loan Fee: 0.0000 %
Payment Frequency: Annual - 360 Days
Periods Principal Deferred: 1
Draw Based Loan: Yes
Pmt Pmt PrincipalAccrued
# Due Date; Interest
1 6/1/2013 $0.00 $0.00
2 6/1/2014 $263,157.90 $12,595.40
3 6/1/2015 $263,157.90 $23,684.21
4 6/1/2016 $263,157.89' $11,184.21
5 6/1/2017 $263,157.89, $10,526.32
6 6/1/2018 1263,157.89' $9,868.42;
7 6/1/2019" 6263,157.89 $9,210.53
8 6/1/2020> •$263;157.90; $8,552.63
9 6/1/2021, $263,157.90 $7,894.74
10.6/1/2022' $263,157.89'.':,•: ` ;;$7;236.84
11 6/1/2023 6263,157.90- $6,578.95
12 6/1/2024 '$263,157.89'\\$5,921.05
13 6/1/2025 $263,157.90',,
263,1*57.90` W $5,263.16
' 14. 6/1/2026 `$263;157:89? , $4,605.26
15 6/1/2027 $263,157.90? $3,947.37
16 6/1/2028 $263,157.89 $3,289.47,
17 6/1/2029 $263,157.90 $2,631.58
18 6/1/2030 $263,157.89 $1,973.68
19 6/1/2031 $263,157.90 $1,315.79
20 6/1/2032 $263,157189: $657.89
Totals: $5,000,000.00- $136,937.50
Loan Type: Amortizing Loan
Loan Term: 20 Years
Amortization Term: 19 Years
• Paid Off:
Loan Source: PWTFNT
Terminated Date:
Amortization Schedule
Loan Start Date: 8/28/2012
Accrual Start Date:
First Payment Date: 6/1/2013
Last Payment Date: 6/1/2032
Distressed Community: N/A
Subordination Allowed: N/A
.
Interest' ' Payment`Due Loan Balance Invoice Inv# Paid Date Paid Amt Extra Principal Extra Principal
Date • Paid=Date ' Paid Amt u,,
$0.00 $0.00 $0.00 04/30/2014 238788
$12,595.40 $275,753.30 ` $4,736,842.10 04/30/2014 238789 05/29/2014' ! $275,753.30
$23,684.21 $286,842.11 $4,473,684.20 05/01/2015 238790 05/28/2015 $286,842.11
$11,184.21 8274,342,10 $4,210,526.31
$10,526.32 $273,684.21, $3,947,368.42
$9,868.42 $273,026.31 $3,684,210.53
$9,210.53 8272,368.42' 83,421,052.64
88,552.63. 1271710.53 83,157,894 74'
$7,894 74 $271,052.64 $2,894,736.84
87,236.84 $270,94 73 12,631,578.95,
$6,578.95,i,,$269,736.85 82,368,421.05
65,921.05; $269,078.94 $2„105,263.16'
$5,263.16 $268,421.06 81,842,105.26-
84,605.26 8267,763.15 ...$.1,578,947.37
$3,947.37 8267,105.27 $1,315,789.47
$3,289.47 $266,447.36. $1,052,631.58
$2,631.58 $265,789 48 $789,473.68
$1,973.68 $265,131.57 $526,315.79
$1,315.79 8264,473.69 $263,157.89
$657.89 $263,815.78 $0.00
$136,937.50 $5,136,937.50' $562,595.41
6/22/2015 10:56.11 AM
Contract Num: PC13-961-074 Loan# 1
CTED\CarrieC
Page: 1 of 1
Washington State
Public Works Board
1011 Plum Street SE
Post Office Box 42525
Olympia, Washington 98504-2525
Construction Loan Agreement between:
City of Yakima
and
Public Works Board
For:
AUGECEITE
22 zoiz
WORKS BOA.A
Project Name: Automated Meter Reading System
Loan Number: PC13-961-074
Loan Type: Construction
D
Execution/Start Date: Contract Execution Date
(to be filled by the Public Works Board)
City of Yakima Page 3 Construction
PC13-961-074 8/1/2012 Public Works Board Contract
DECLARATIONS
CLIENT INFORMATION,,
Legal Name:
Loan Number:
Federal Tax Identification Number:
State Wide Vendor Number:
PROJECT.INFORMATION
Project Title:
Project City:
Project State:;.
Project Zip Code:
LOAN INFORMATION
Loan Amount:
Total Estimated Cost:
Total Estimated Funding:
Local Match Percent:
Loan Term:
Interest Rate:
Payment Month:
Loan Reimbursement Start Date:
Time of Performance ,
City of Yakima
PC13-961-074
916001293
0007122
Automated Meter Reading System
Yakima
Washington
98902-1225
$5,000,000.00
$10,481,250.00
$10,481,250.00
15.00%
20
0.50%
June 1St
9/1/2011
60 months from Execution Date of this Contract to
Project Completion.
SPECIAL. 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 Yakima Page 4 Construction
PC13-961-074 8/1/2012 Public Works Board Contract
DECL,"",ARATION .(continued)
Loan Number:
Project Title:
PC 13-961-074
Automated Meter Reading System
Scope of Work:
This project will enhance the water system by modernizing the existing metering system. Project
costs include, but are not limited to, permits, engineering, bid documents, and construction.
These improvements will allow Yakima to meet Local, State, and Federal requirements.
City of Yakima Page 5
PC 13-961-074 8/1/2012
Construction
• Public Works Board Contract
City of Yakima Page 6
PC13-961-074 8/1/2012
Construction
Public Works Board Contract
CONTRACT FACE SHEET
Contract Number: PC13-961-074
Washington State Department of Commerce
PUBLIC WORKS BOARD
CONSTRUCTION LOAN CONTRACT
1. Contractor
City of Yakima
2301 Fruitvale Blvd
Yakima, WA 98902-1225
2. Contractor Doing Business As (optional)
N/A
3. Contractor Representative
N/A
4. Public Works Board Representative
5. Contract Amount
$5,000,000.00 ,
6. Funding Source
Federal: ❑ State:
Other: ❑ N/A: ❑
F4
7. Contract Start Date
Contract Execution Date
8. Contract End Date
June 1,2032
9. Federal Funds (as applicable) Federal Agency CFDA Number
N/A N/A N/A
10. Tax ID # •
916001293
11. SWV #
0007122
12. UBI #
13. DUNS #
14. Contract Purpose
Fund a project of a local government for the planning, acquisition, construction, repair, reconstruction,
replacement, rehabilitation, or improvement of streets and roads, bridges, drinking water systems, stormwater
systems, sanitary sewage systems, and solid waste facilities, including recycling facilities.
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: Contract Terms and Conditions
including Declarations Page; and Attachment I: Attorney's Certification.
FOR THE
ALL
CONTRAC
i =
FOR
PUBLIC WORKS BOARD
Sign..
•
- a
0' ' 2_.,
J.
n LaRocque, Exe 1 ive Director
gliTliv
Date
APPROVED AS TO FORM ONLY
This 1st Day of May, 2012
Print Name
Title J
1901,1-- .'
Date
Rob McKenna
Attorney General
Signature on file
Kathryn Wyatt
Assistant Attorney General
City of Yakima
PC13-961-074
Page 7
Construction
8/1/2012 Public Works Board Contract
City of Yakima Page 8 Construction
PC13-961-074 8/1/2012 Public Works Board Contract
PUBLIC WORKS BOARD CONSTRUCTION LOAN PROGRAM
TABLE OF CONTENTS
CONTRACT TITLE PAGE 2
DECLARATIONS 3
CONTRACT FACE SHEET 5
TABLE OF CONTENTS 6
SPECIAL TERMS AND CONDITIONS 11
1.1 Definitions 11
1.2 Authority 11
1.3 Purpose 11
1.4 Order of Precedence 11
1.5 5- year deferral for start-up systems 11
1.6 Competitive Bidding Requirements 12
1.7 Default in Repayment 12
'1.8 Investment Grade Audit 12
1.9 Eligible Project Costs.and Local Match
12
1.10 Historical and Cultural Resources 13
1.11 Performance Incentives ' 13
1.12 Project Completion Amendment and Certified Project Completion Report 14
1.13 Project Signs 14
1.14 Rate and Term of Loan 14
1.15 Recapture . 14
1.16 Reimbursement Procedures and Payment 15
1.17 Repayment 16
'1.18 Reports 16
' 1.19 Termination for Cause 16
1.20 Termination for Convenience 17
1.21 Time of Performance 17
1.22 Special Conditions 17
1.23 Loan Security 17
GENERAL TERMS AND CONDITIONS 18
2.1 DEFINITIONS 18
2.2 ALLOWABLE COSTS 18
2.3 ALL WRITINGS CONTAINED HEREIN 18
2.4 AMENDMENTS 18.
2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990. PUBLIC LAW 101-336,
ALSO REFERRED TO AS THE "ADA" 28 CFR PART 35 18
2.6 APPROVAL 18
2.7 ASSIGNMENT 18
2.8 ATTORNEYS' FEES 19
2.9 AUDIT 19
2.10 CODE REQUIREMENTS 20
2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION 20
2.12 CONFORMANCE 21
2.13 COPYRIGHT PROVISIONS 21
2.14 DISALLOWED COSTS 21
2.15 DISPUTES 21
2.16 DUPLICATE PAYMENT 22
City of Yakima Page 9
PC13-961-074 ' 8/1/2012
Construction
Public Works Board Contract
2.17 ETHICS/CONFLICTS OF INTEREST 22
2.18 GOVERNING LAW AND VENUE 22
2.19 INDEMNIFICATION 22
2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR 22
2.21 INDUSTRIAL INSURANCE COVERAGE 22
2.22. LAWS 20
2.23 LICENSING, ACCREDITATION AND REGISTRATION 24
2.24 LIMITATION OF AUTHORITY 24
2.25 LOCAL PUBLIC TRANSPORTATION COORDINATION 24
2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS 25
2.27 POLITICAL ACTIVITIES 25
2.28 PREVAILING WAGE LAW 25
2.29 PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION 25
2.30 PUBLICITY 25
2.31 RECAPTURE 25
2.32 RECORDS MAINTENANCE 26
2.33 REGISTRATION WITH DEPARTMENT OF REVENUE 26
2.34 RIGHT OF INSPECTION 26
2.35 SAVINGS 26
2.36 SEVERABILITY 26
2.37 SUBCONTRACTING 26
2.38 SURVIVAL 27.
2.39 TAXES 27
2.40 TERMINATION FOR CAUSE / SUSPENSION 27
2.41 TERMINATION FOR CONVENIENCE 27
2.42 TERMINATION PROCEDURES 27
2.43 WAIVER 28
City of Yakima Page 10
PC13-961-074 8/1/2012
Construction
Public Works Board Contract
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
SPECIAL TERMS AND CONDITIONS
1.1 ' Definitions
As used throughout this Construction Loan Contract the following terms shall have the meaning set
forth below:
A. "Contract" shall mean this Construction Loan Contract.
B.. "Contractor" shall mean the local government identified on the Contract Face Sheet performing
service(s) under this Contract .and who is a Party to the Contract, and shall include all
employees and agents of the Contractor.
C. "The Board" shall mean the Washington State Public Works Board created in Revised Code of
Washington (RCW) 43.155.030, and who is a Party to the Contract.
D. "Declarations " and "Declared" shall refer to the project information, loan terms and conditions
as stated on the Declarations Page of this Loan Contract, displayed within the contract in THIS
STYLE for easier identification.
1.2 Authority
Acting under the authority of Chapter 43.155 RCW, the Board has awarded the Contractor a Public
Works Trust Fund construction loan for an approved public works project.
1.3 Purpose
The Board and the Contractor have entered into this Contract to undertake a local public works -
project that furthers the goals and objectives of the Washington State Public Works Program. The •
project will be undertaken by the Contractor and will include theactivities described in the SCOPE
OF WORK shown on the Declarations page. The project must be undertaken in accordance with
the loan terms and conditions, and all applicable federal, state and local laws and ordinances,
which by this reference are incorporated into this Contract as though set forth fully herein.
1.4 Order of Precedence
In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving
precedence in the following order:
A. Applicable federal and state of Washington statutes and regulations.
B. Special Terms and Conditions including attachments.
C. General Terms 'and Conditions.
1.5 5- year deferral for start-up systems
If the project financed by this contract is to develop a system to deliver previously unavailable
services, and revenue from those services is to repay the loan, the new system is eligible for a
deferral of loan payments for sixty (60) months after the Contract execution date. •
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Interest accrues for the aforementioned sixty (60) months. The accrued interest only payment is
due June 1 of the 6th year of the loan term. Interest and principal payments are due on June 1 of
the 7th year of the loan term.
1.6 Competitive Bidding Requirements
The Contractor shall comply with the provisions of RCW 43.155.060 regarding competitive bidding
requirements for projects assisted in whole or in part with money from the Public Works Program.
1.7 Default in Repayment
Loan repayments shall be made on the loan in accordance with Section 1.16 of this Contract. A
payment not received within thirty (30) days of the due date shall be declared delinquent.
Delinquent payments shall be assessed a monthly penalty beginning on.the first (1st) day past the
due date. The penalty will be assessed on the entire payment amount. The penalty will be one
percent (1 %) per month or twelve percent (12%) per annum. The same penalty terms shall apply
at project completion if the repayment of loan funds in excess of eligible costs are not repaid at the
• time of the Project Completion Amendment is submitted, as provided for in Section 1.12.
The Contractor acknowledges and agrees to the Board's right, upon delinquency in the payment of
any annual installment, to notify any other entity, creditors, or potential creditors of the Contractor of
such delinquency.
The Contractor shall be responsible for all legal fees incurred by the Board in any action undertaken
to enforce its rights under this section.
1.8 Investment Grade Audit
For projects involving repair, replacement, or improvement of a wastewater treatment plant, or
other public works facility for which an investment grade audit is obtainable, Contractor must
undertake an investment grade audit.
Costs incurred as part of the investment grade audit are eligible project costs.
1.9 Eligible Project Costs
The Contractor pledges to use an amount of matching funds as local project share at a percentage
not less than that shown on the Declarations Page as: LOCAL MATCH PERCENT, applied to the
total eligible portion of the project cost as identified in declared SCOPE OF WORK. State and
federal grants are not considered local matching funds. Expenditures on eligible project activities
incurred up to twelve (12) months prior to the execution of this Contract may be used as match for
local project share.
The amount of local funds used for the project will be verified and the percentage that this figure
represents of the total project cost will be calculated at project completion. If and to the extent the
actual percentage of local match exceeds the proposed match percentage, the loan amount and/or
the interest rate charged may be adjusted. At a minimum, the match provided cannot be less than
the original match pledgedat the time of contract execution. The interest rate adjustment will apply
to the remaining payments beginning from the date the Project Completion report is certified. The
Contractor agrees to execute the Project Completion Amendment as an amendment to this
Contract adjusting the loan amount or interest rate, as appropriate.
Eligible project costs must consist of expenditures eligible under Washington Administrative Code
(WAC) 399-30-030 and be related only to project activities described,in the declared SCOPE OF
WORK. Eligible costs for reimbursement shall be construed to mean expenditures incurred and
paid, or incurred and payable within thirty (30) days of the reimbursement request. Only costs that
have been incurred on or after the LOAN REIMBURSEMENT START DATE shown in the
Declarations are eligible for reimbursement under this Contract.
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The Contractor assures compliance with WAC 399-30-030, which identifies eligible costs for
projects assisted with Public Works Program loans.
These terms supersede the terms in Section 2.2. Allowable Costs.
1.10 Historical and Cultural Resources
Prior to commencing construction, Contractor shall complete the requirements of Governor's
Executive Order 05-05, or, as a substitute for completion of Governor's Executive.Order 05-05,
Contractor shall complete Section 106 of the National Historic Preservation Act. Contractor agrees
that the Contractor is legally and financially responsible for compliance with all laws, regulations,
and agreements related to the preservation of historical or cultural artifacts and agrees to hold
harmless the Board and the State of Washington in relation to.any claim related to such historical or
cultural artifacts discovered, disturbed, or damaged as a result of the project funded by this
Contract.
In addition to the requirements set forth in this Contract, Contractor shall, in accordance with
• Governor's Executive Order 05-05, coordinate with the Washington State Department of
Archaeology and Historic Preservation (DAHP), including any recommended consultation with any
affected tribe(s), during project design and prior to construction to determine the existence of any
tribal cultural resources affected by the proposed project funded by this Contract. Contractor
agrees to avoid, minimize, or mitigate impacts to the cultural resource as a continuing pre -requisite
to receipt of funds under this Contract.
The Contractor agrees that, unless the Contractor is proceeding under an approved historical and
cultural monitoring plan or other memorandum of agreement, if historical or cultural artifacts are
discovered during construction, the Contractor shall immediately stop construction and notify the
local historical preservation officer and the state's historical preservation officer at DAHP. If human
remains are uncovered, the Contractor shall report the presence and location of the remains to the
coroner and local enforcement immediately, then contact DAHP and the concerned tribe's cultural
staff or committee.
The Contractor shall require this provision to be contained in all sub -contracts for work or services
related to the declared SCOPE OF WORK.
In addition to the requirements, set forth in this Contract, Contractor agrees to comply with RCW
27.44 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and
Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and,
WAC 25-48 regarding Archaeological Excavation and Removal Permits.
Completion of the Section 106 of the National Historic Preservation Act shall substitute for
completion of Governor's Executive Order 05-05.
In the event that the Contractor finds it necessary to amend the declared SCOPE OF WORK, the
Contractor may be required to re -comply with Governor's Executive Order 05-05 or Section 106 of
the National Historic Preservation Act.
1.11 Performance Incentives
The Contractor shall complete the project no later than sixty (60) months after the date of contract
execution.
Should the Contractor complete the project within forty-eight (48) months of the date of contract
execution, the Contractor may choose one of the two following incentives upon project completion:
Option A: The repayment period will be increased by twenty-four (24) months, not to exceed
the life•of the asset, OR:
Option B: The interest rate will be decreased by one-quarter of one percent (0.25%).
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Should the Contractor complete the project within thirty-six (36) months of the date of contract
execution, the Contractor may choose one of the following two incentives upon project completion:
Option C: The repayment period will be increased by sixty (60) months, not to exceed the life
of the asset, OR;
Option D: The interest rate will be decreased by up to one-half of one percent (0.50%).
Once an option is selected, the Contract shall be modified to note the appropriate change and no
further adjustment to the Contract for Performance Incentives shall be authorized. Irrespective of
the performance incentive chosen, at no point in time shall the minimum loan interest rate be less
than 0.25%.
The calculation of interest rate and term adjustments will apply to the remaining payments
beginning from the date the Project Completion report is certified.
1.12 Project Completion Amendment and Certified Project Completion Report
The Contractor shall complete a Certified Project Completion Report when all activities
identified in the SCOPE OF WORK are complete. The Board will supply the Contractor with the
Certified Project Completion Report form, which shall include: •
A. A certified statement that the project, as described in the declared SCOPE OF WORK, is
complete and, if applicable, meets required standards.
B. A certified statement of the actual dollar amounts spent, from all funding sources, in completing
the project as described in the SCOPE OF WORK.
C. Certification that all costs associated with the project have been incurred and have been
accounted for. Costs are incurred when goods and services are received and/or contract work
is performed. •
D. A final voucher for the remaining eligible funds.
The Contractor will submit the Certified Project Completion Report together with the last Invoice
Voucher for a sum not to exceed the balance of the loan amount. The final Invoice Voucher
payment shall not occur prior to the completion of -all project activities identified in the SCOPE OF •
WORK and the Board's receipt and acceptance of the Certified Project Completion Report.
The Project Completion Amendment shall serve as an amendment to this Contract determining the
final loan amount, local share, term, and interest rate.
1.13 Project Signs
If the Contractor displays, during the period covered by this Contract, signs or markers identifying
those agencies participating financially in the approved project, the sign or marker must identify the
Washington State Public Works Trust Fund as a participant in the•project.
1.14 Rate and Term of Loan
The Board shall loan the Contractor a sum not to exceed the LOAN AMOUNT shown on the
Contract Face Sheet and declared on the Contract Declarations Page. The interest rate shall be
the declared INTEREST RATE per annum on the outstanding principal balance. The length of the
loan shall not exceed the declared LOAN TERM in years, with the final payment due by the
CONTRACT END DATE as shown on the Contract Face Sheet.
1.15 Recapture
The right of recapture shall exist for a period not to exceed six (6) years following contract
termination. In the event that the Board is required to institute legal proceedings to enforce the
recapture provision; the Board shall be entitled to its costs thereof, including attorney's fees.
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These terms supersede the terms in Section 2.31. Recapture.
1.16 Reimbursement Procedures and Payment
If funding or appropriation is not available at the time the invoice is submitted, or when this contract
is executed, the issuance of warrants will be delayed or suspended until such time as funds or
appropriation become available. Therefore, subject to the availability of funds, warrants shall be
issued to the Contractor for reimbursement of allowable expenses incurred by the Contractor while
undertaking and administering approved project activities in accordance with the declared SCOPE
OF WORK.
The Board shall reimburse the Contractor for eligible project expenditures up to the maximum loan
amount under this contract, as identified in Section 1.10. When requesting reimbursement for costs
incurred, the Contractor shall submit a signed and completed Invoice Voucher (Form A19),
referencing the SCOPE OF WORK project activity performed, and any appropriate documentation
such•as bills, invoices, and receipts. The Invoice Voucher must be certified by an official of the
Contractor with authority to bind the Contractor.
Each Invoice 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 Board will not release payment for any reimbursement request
received unless and until the Project Status Report is received. After approving the Invoice Voucher
and the Project Status Report, the Board shall promptly remit a warrant to the Contractor.
Requests for reimbursements for costs related to construction activities will not be accepted until •
the Contractor provides:
• Proof of compliance with Governor's Executive Order 05-05 or Section 106 of the National
Historic Preservation Act, as described in Section 1.10, and
• A signed Public Works Trust Fund Notice of Contract Award and Notice to Proceed, which
follows the formal award of a construction contract.
The Contractor shall submit all Invoice Vouchers and all required documentation to:
Contracts Administration Unit
Department of Commerce
PO Box 42525
Olympia, WA 98504-2525
The Board will pay the Contractor upon acceptance of the work performed and receipt of properly
completed invoices. Invoices shall be submitted to the Board not more often than monthly.
Payment shall be considered timely if made by the Board within thirty (30) calendar days after
receipt of properly completed invoices. Payment shall be sent to the address designated by the
Contractor.
The Board may, at its sole discretion, terminate the contractor withhold payments claimed by the
Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or
condition of this contract.
No payments in advance or in anticipation of services or supplies to be provided under this contract
shall be made by the Board.
Duplication of Billed Costs. If the Contractor is entitled to payment or has been or will be paid by
another source for an eligible project cost, then the Contractor shall not be reimbursed by the Board
for that cost.
Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs
incurred by its own organization or that of its subcontractors.
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In no event shall the total Public Works loan exceed 100% of the eligible actual project costs. At
the time of project completion, the Contractor shall submit to the Board a Project Completion
Amendment certifying the total actual project costs and local share. The final Public Works loan
disbursement shall bring the total loan to the lesser of 100% of the eligible project costs or the total
declared LOAN AMOUNT. The Project Completion Amendment shall serve as an amendment to
this Contract determining the final loan amount, local share, and interest rate.
In the event that the final costs identified in the Project Completion Amendment indicate that the
Contractor has received Public Works Trust Fund monies in excess of 100.00% of eligible costs, all
funds in excess of 100.00% shall be repaid to the Public Works Assistance Account by payment to
the Department of Commerce, or its successor, together with the submission of the Project
Completion Amendment.
1.17 Repayment
Loan repayment installments are due on the day and month identified under the term: PAYMENT
MONTH on the Declarations Page. Payments are due each year during the term of the loan
beginning one year from the date of contract execution. Interest only will be charged for this
payment if a warrant is issued prior to this date. All subsequent payments shall consist of principal
and accrued interest due on the specified PAYMENT MONTH date of each year during the
remaining term of the loan.
Repayment of the loan under this Contract shall include the declared INTEREST RATE per annum
based on a three hundred and sixty (360) day year of twelve (12) thirty (30) day months. Interest
will begin to accrue from the date each warrant is issued to the Contractor. The final payment shall
be on or before the -CONTRACT END DATE shown on the Declarations page, of an amount
sufficient to bring the loan balance to zero.
In the event that the Board approves the Contractor's request for a deferral as outlined in Section
1.5, then the first loan repayment is due sixty (60) months after contract execution. Interest accrues
for the sixty (60) months after contract execution. The accrued interest only will be charged for this
payment if a warrant is issued prior to this date. Interest and principal payments are due on the
declared PAYMENT MONTH date of each year during the remaining term of the loan. The
Contractor has the right to repay the unpaid balance of the loan in full at any time or make
accelerated payments without penalty.
The Contractor will repay the loan in accordance with the preceding conditions through the use of a
check, money order, or equivalent means made payable to the Washington State Department of
Commerce, or its successor.
1.18 Reports
The Contractor shall furnish. the Board with:
A. Project Status Reports with each Invoice Voucher,
B.. Project Reports at the end of each fiscal year,
C. Certified Project Completion Report at project completion (as described in Section 1.12), and
D. Other reports as the Board may require.
1.19 Termination for Cause
If the Contractor fails to comply with the terms of this Contract, or fails to use the loan proceeds
only for those activities identified in the SCOPE OF WORK, the Board may terminate the Contract in
whole or in part at any time_ The Board shall notify the Contractor in writing of its determination to
terminate, the reason for such termination, and the effective date of the termination. Nothing in this
section shall affect the Contractor's obligation to repay the unpaid balance of the loan.
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These terms supersede the terms in Section 2.40 Termination for Cause/Suspension:
1.20 Termination for Convenience
The Board may terminate this contract in the event that state funds are no longer available to the
Board, or are not appropriated for the purpose of meeting the Board's obligations under this
contract. Termination will be effective when the Board sends written notice of termination to the
Contractor. Nothing in this section shall affect the Contractor's obligation to repay the unpaid
balance of the loan.
These terms supersede the terms in Section 2.41 Termination for Convenience.
1.21 Time of Performance
No later than sixty (60) months after the date,of contract execution the Contractor must reach
project completion.
Failure to meet Time of Performance shall constitute default of this contract. In the event of
extenuating circumstances, the Contractor may request, in writing, that the Board extend the
deadline for project completion. The Board may extend the deadline.
The term of this contract shall be for the entire term of the loan, regardless of actual project
. completion, unless terminated sooner as provided herein.
1.22 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.
1.23 Loan Security
Loan Security payments shall be made as stated on the attached Declarations Page, and identified
therein as LOAN SECURITY.
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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) 43.1'55.030, and which is a Party to the Contract
D. "Personal Information" shall mean information identifiable'to any person, including, but not
limited to, information that relates to a person's name, health, finances, education,
business, use or receipt of governmental services or other activities, addresses, telephone
numbers, social security numbers, driver license numbers, other identifying numbers, and
any financial identifiers.
E. "State" shall mean the state of Washington.
F. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing
all or part of those services under this Contract under a separate contract with the
Contractor. The terms "subcontractor" and "subcontractors" mean subcontractor(s) in any
tier.
2.2 ALLOWABLE COSTS
Costs allowable under this Contract are actual expenditures according to an approved budget up to
the maximum amount stated on the Contract Award or Amendment Face Sheet.
2.3 ALL WRITINGS CONTAINED HEREIN
This Contract contains all the terms and conditions agreed upon by the parties. No other
understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to
exist or to bind any of the parties hereto.
2.4 AMENDMENTS
This Contract may be amended by mutual agreement of the parties. Such amendments shall not be
binding unless they are in writing and signed by personnel authorized to bind each of the parties.
2.5 AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, ALSO REFERRED TO
AS THE "ADA" 28 CFR PART 35
The Contractor must comply with the ADA, which provides comprehensive civil rights protection to
individuals with disabilities in the areas of employment, public accommodations, state and local
'government services, and telecommunications.
2.6 APPROVAL
This contract shall be subject to the written approval of the Board's Authorized Representative and
shall not be binding until so approved. The contract may be altered, amended, or waived only by a
written amendment executed by both parties.
2.7 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.
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2.8 ATTORNEYS' FEES
Unless expressly permitted under another provision of the Contract, in the event of litigation or
other action brought to enforce Contract terms, each party agrees to bear its own attorneys fees
and costs.
2.9 AUDIT
A. General Requirements
Contractors are to procure audit services based on the following guidelines.
The Contractor shall maintain its records and accounts so as to facilitate the'audit requirement
and shall ensure that Subcontractors also maintain auditable records.
The Contractor is responsible for any audit exceptions incurred by its own organization or that
of its Subcontractors.
The Board reserves the right to recover from the Contractor all disallowed costs resulting from
the audit.
As applicable, Contractors required to have an audit must ensure the audits are performed in
accordance with Generally Accepted Auditing Standards (GAAS); 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's requests for
information or corrective action concerning audit issues within thirty (30) days of the date of
request.
B. State Funds Requirements
'Contractors expending $100,000 or more in total state funds in a fiscal year must have a
financial audit as defined by Government Auditing Standards (The Revised Yellow Book) and
according to Generally Accepted Auditing Standards (GAAS). The Schedule of State Financial
Assistance must be included. The schedule includes:
Grantor agency name
State program name
BARS account number
Grantor
Agency contract number
Contract award amount including amendments (total grant award)
Beginning balance
Current year revenues
Current year expenditures
Ending balance,
Program total
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.
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) to:
• .Department of Commerce
ATTN: Audit Review and Resolution Office
PO Box 42525
Olympia WA 98504-2525
In addition to sending a copy of the audit, when applicable, the Contractor must include:
. • Corrective action plan for audit findings within three (3) months of the audit being
received by the Board. •
• Copy of the Management Letter.
2.10 CODE REQUIREMENTS
All construction and rehabilitation projects must satisfy the requirements of applicable local, state,
and federal building, mechanical, plumbing, fire, energy and barrier -free codes. Compliance with
the Americans with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the
local building Department.
2.11 CONFIDENTIALITY/SAFEGUARDING OF INFORMATION
A. "Confidential Information" as used in this section includes:
1. All material provided to the Contractor by the Board that is designated as "confidential" by
the Board;
2. All material produced by the Contractor that is designated as "confidential" by the Board; and
3. All personal information in the possession of the Contractor that may not be disclosed under
state or federal law. "Personal information" includes but is not limited to information related to
a person's name, health, finances, education, business, use of government services,
addresses, telephone numbers, social security number, driver's license number and other
identifying numbers, and "Protected Health Information" under the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA).
B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer,
sale, or disclosure of Confidential Information. The Contractor shall use Confidential Information
solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any
Confidential Information to any third party except with the prior written consent of the Board or
as may be required by law. The Contractor shall•take all necessary steps to assure that
Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or
disclosure of Confidential Information or violation of any state or federal laws related thereto.
Upon request, the Contractor shall provide THE BOARD with its policies and procedures on
confidentiality. The Board may require changes to such policies and procedures as they apply
to this Contract whenever the Board reasonably determines that changes are necessary to
prevent unauthorized disclosures. The Contractor shall make the changes within the time
period specified by the Board. Upon request, the Contractor shall immediately return to the
Board any Confidential Information that the Board reasonably determines has not been
adequately protected by the Contractor against unauthorized disclosure.
C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working
days of any unauthorized use or disclosure of any confidential information, and shall take
necessary steps to mitigate the harmful effects of such use or disclosure.
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2.12 CONFORMANCE
If any provision of this.contract violates any statute or rule of law of the state of Washington, it is
considered modified to conform to that statute or rule of law. ,
2.13 COPYRIGHT PROVISIONS
Unless otherwise provided, all Materials produced under this Contract shall be considered "works •
for hire" as.defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be
considered the author of such Materials. In the event the Materials are not considered "works for
hire" under the U.S. Copyright laws, the Contractor hereby irrevocably assigns all right, title, and
interest in all Materials, 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.
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 portionof such document which was not produced in the performance of this
Contract. The Contractor shall provide the Board with prompt written notice.of each notice or claim
of infringement received by the Contractor with respect to any Materials delivered under this
Contract. The Board shall have the right to modify or remove any restrictive markings placed upon
the Materials by the Contractor.
2.14 DISALLOWED COSTS
The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own
organization or that of its Subcontractors.
2.15 DISPUTES
Except as otherwise provided in this Contract, when a dispute arises between the parties and it
cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair
of the Board, who may designate a neutral person to decide the dispute.
The request for a dispute hearing must:
• be in writing;
• state the•disputed issues;
• state the relative positions of the parties;
• state the Contractor's name, address, and Contract number; and
• be mailed to the Chair and the other party's (respondent's) Representative within three
(3) working days after the parties agree that they cannot resolve the dispute.
The respondent shall send a written answer to the requestor's statement to both the Chair or the
Chair's designee and the requestor within five (5) working days.
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The Chair or designee shall review the written statements and reply in writing to both parties within
ten (10) working days. The Chair or designee may extend this period if necessary by notifying the
parties.
The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding.
The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial
tribunal.
Nothing in this Contract shall be construed to limit the parties' choice of a mutually acceptable
alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined
above.
2.16 DUPLICATE PAYMENT
The Contractor certifies that work to be performed under this contract does not duplicate any work
to be charged against any other contract, subcontract, or other source.
2.17 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.
2.18 GOVERNING LAW AND VENUE
This Contract shall be construed and interpreted in accordance with the laws of the state of
Washington, and the venue of any action brought hereunder shall be in the Superior Court for
Thurston County.
2.19 INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the
state of Washington, the Board, all other agencies of the state and all officers, agents and
employees of the state, from and against all claims or damages for injuries to persons or property
or death arising out of or incident to the Contractor's performance or failure to perform the Contract.
The Contractor's obligation to indemnify, defend, and hold harmless includes any claim by the
Contractor's agents, employees, representatives, or any Subcontractor or its agents, employees, or
representatives.
The Contractor's obligation to indemnify; defend, and hold harmless shall not be eliminated by any
actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers.
Subcontracts shall include a comprehensive indemnification clause holding harmless the
Contractor, the Board, the state of Washington, its officers, employees and authorized agents.
The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify,
defend and hold harmless the state and its agencies, officers, agents or employees.
2.20 INDEPENDENT CAPACITY OF THE CONTRACTOR
The parties intend that an independent contractor relationship will be created by this Contract. The
Contractor and its employees or agents performing under this Contract are not employees or
agents of the state of Washington or the Board. The Contractor will not hold itself out as or claim to
be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the
Contractor'make any claim of right, privilege or benefit which would accrue to such officer or
employee under law. Conduct and control of the work will be solely with the Contractor.
2.21 INDUSTRIAL INSURANCE COVERAGE
The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If
the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on
behalf of its employees as may be required by law, the Board may collect from the Contractor the
full amount payable to the Industrial Insurance Accident Fund. The Board may deduct the amount
owed by the Contractor to the accident fund from the amount payable to the Contractor by the
Board under this Contract, and transmit the deducted amount to the Department of Labor and
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Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to
collect from the Contractor.
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2.22 LAWS
The Contractor shall comply with all applicable laws, ordinances, codes, regulations and policies of
local and state and federal governments, as now or hereafter amended including, but not limited to:
Washington State Laws and Regulations
A. Affirmative action, RCW 41.06.020 (11).
B. Boards of directors or officers of non-profit corporations — Liability - Limitations, RCW
4.24:264.
C. Disclosure -campaign finances -lobbying, Chapter 42.17 RCW.
D. Discrimination -human rights commission, Chapter 49.60 RCW.
E. Ethics in public service, Chapter 42.52 RCW.
F. Housing assistance program, Chapter 43.185 RCW.
G. Interlocal cooperation act, Chapter 39.34 RCW.
H: • Noise control, Chapter 70.107 RCW.
I. Office of minority and women's business enterprises, Chapter 39.19 RCW and Chapter
326-02 WAC.
J. Open public meetings act, Chapter 42.30 RCW.
K. Prevailing wages on public works, Chapter 39.12 RCW.
L. Public records act, Chapter 42.56 RCW.
M. Relocation assistance - real property acquisition policy, Chapter 8.26 RCW.
N. Shoreline management act of 1971, Chapter 90.58 RCW.
O. State budgeting, accounting, and reporting system, Chapter 43.88 RCW.
P. State building code, Chapter 19.27 RCW and Energy-related building standards, Chapter
19.27A RCW, and Provisions in buildings for aged and handicapped persons, Chapter
70.92 RCW.
Q. State Coastal Zone Management Program, Publication 01-06-003, Shorelands and
Environmental Assistance Program, Washington State Department of Ecology.
R. State environmental policy, Chapter 43,21C RCW.
S. State Executive Order 05-05 Archeological and Cultural Resources.
2.23 LICENSING, ACCREDITATION AND REGISTRATION
The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and
registration requirements or standards necessary for the performance of this Contract.
2.24 LIMITATION OF AUTHORITY
Only the Authorized Representative or Authorized Representative's designee by writing
(designation to be made prior to action) shall have the express, implied, or apparent authority to
alter, amend, modify, or waive any clause or condition of this Contract.
2.25 LOCAL PUBLIC TRANSPORTATION COORDINATION
Where applicable, Contractor shall participate in local public transportation forums and implement
strategies designed to ensure access to services.
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2.26 NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
During the performance of this Contract, the Contractor shall comply with all federal, state, and
local nondiscrimination laws, regulations and policies. In the event of the Contractor's non-
compliance or refusal to comply with any nondiscrimination law, regulation or policy, this contract
may be rescinded, canceled or terminated in whole or in part, and the Contractor may be 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.
2.27 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.
2.28 PREVAILING WAGE LAW
The Contractor certifies that all contractors and subcontractors performing work on the Project shall
comply with state Prevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the
Project funded by this contract, including but not limited to the filing of the "Statement of Intent to
Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39.12.040. The
Contractor shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and
shall make such records available for the Board's review upon request.
2.29 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.
2.30 PUBLICITY
The Contractor agrees not to publish or use any advertising or publicity.materials in which the state
of Washington or the Board's name is mentioned, or language used from which the connection with
the state of Washington's or the Board's, name may reasonably be inferred or implied, without the
prior written consent of the Board.
2.31 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.
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2.32 RECORDS MAINTENANCE
The Contractor shall maintain allbooks, 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.
2.33 REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law, the Contractor shall complete registration with the Washington State Department
of Revenue.
2.34 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.
2.35 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.
2.36 SEVERABILITY
If any provision of this Contract or any provision of any document incorporated by reference shall
be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given
effect without the invalid provision, if such remainder conforms.to the requirements of law and the
fundamental purpose of this Contract and to this end the provisions of this Contract are declared to
be severable.
2.37 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 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.
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2.38 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.
2.39 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.
2.40 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).
2.41 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.
2.42 TERMINATION PROCEDURES
After receipt of a notice of termination, except as otherwise directed by the Board, the Contractor
shall:
A. Stop work under the Contract on the date, and .to the extent specified, in the notice;
B. Place no further orders or subcontracts for materials, services, or facilities related to the
Contract;
C. Assign to the State all of the rights, title, and interest of the Contractor under the orders and
subcontracts so terminated, in which case the Board has the right, at its discretion, to settle or
pay any or all claims arising out of the termination of such orders and subcontracts. Any
attempt by the Contractor to settle such claims must have the prior written approval of the
Board; and
D. Preserve and transfer any materials, contract deliverables and/or the Board property in the
Contractor's possession as directed by the Board.
Upon termination of the Contract, the Board shall pay the, Contractor for•any service provided by the
Contractor under the Contract prior to the date of termination. The Board may withhold any amount
due as the Board reasonably determines is necessary to protect the Board against potential loss or
liability resulting from the termination. the Board shall pay any withheld amount to the Contractor if
the Board later determines that loss or liability will not occur.
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• 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.
2.43 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
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ATTACHMENT I: ATTORNEY'S CERTIFICATION
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
,(fihv G,ct-Le-,�
City of Yakima
• PC13-961-074
, hereby certify:
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 Public Works Trust Fund financial assistance
and to provide for repayment of the loan as set forth in the Contract.
3. There is currently no litigation in existence seekingto enjoin the commencement or.
completion of the above-described public facilities project or to enjoin the Contractor from
repaying the Public Works Trust 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 Contract.
4. Assumption of this obligation would not exceed statutory and administrative rule debt
limitations applicable to the Contractor.
G I'
Signature, �rney
Name
Address
Date
A90 S • 3-vd yam--, el 9s 90/
13//S1/2 -
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