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HomeMy WebLinkAbout5.290 Original ContractPART I: ENTIRE AGREEMENT This agreement, and incorporated attachments, contains all terms and conditions agreed to by the DEPARTMENT and the LOCAL GOVERNMENT. An attachment to this agreement, ATTACHMENT I: SCOPE OF WORK, consists of a description of local project activities, certification of the project's useful life, and identification of estimated project costs and fund sources and is, by this reference, incorporated into this agreement as though set forth fully herein. In addition, ATTACHMENT II: ATTORNEY'S CERTIFICATION, is by this reference incorporated into this agreement. The DEPARTMENT and the LOCAL GOVERNMENT have executed this agreement as of the date and year last written below. DEPARTMENT OF COMMUNITY DEVELOPMENT }lam Title Date d//9, Approved as to Form by Attorney General i Jo n J. R n tant ttorney General 31 //q Date 1 PUBLIC WORKS TRUST FUND CONSTRUCTION LOAN AGREEMENT NUMBER PW -5 -92- 280 -032 City of Port Angeles 1 LOCAL GOVERNMENT me Mayor Title Date June 2, 1992 91- 6001266 Taxpayer Identification Number c PART II: INTRODUCTION This loan agreement is made and entered into by and between the DEPARTMENT OF COMMUNITY DEVELOPMENT, a department of the state of Washington (referred to as the "DEPARTMENT') on behalf of the PUBLIC WORKS BOARD (referred to as the "BOARD and City of Port Angeles (referred to as the "LOCAL GOVERNMENT'). The DEPARTMENT has received an appropriation from the Washington State Legislature under the authority of Chapter 43.155 RCW to provide financial assistance to selected units of local government for the repair, replacement, reconstruction, rehabilitation, or improvement of bridges, roads, domestic water systems, sanitary sewer, and storm sewer systems. Acting under the authority of Chapter 43.155 RCW, the BOARD has selected the LOCAL GOVERNMENT to receive a Public Works Trust Fund loan for an approved public works project. PART III: PURPOSE The DEPARTMENT and the LOCAL GOVERNMENT have entered into this agreement to undertake a local public works project which furthers the goals and objectives of the Washington State Public Works Trust Fund Program. The project will be undertaken by the LOCAL GOVERNMENT and will include the activities described in ATTACHMENT I: SCOPE OF WORK, as well as in the Public Works Trust Fund Application submitted to the BOARD and postmarked on or before July 13, 1991, by the LOCAL GOVERNMENT and upon which this agreement is based. The assisted project must be undertaken in accordance with PART IV: TERMS AND CONDITIONS, and all applicable state and local laws and ordinances, which by this reference are incorporated into this agreement as though set forth fully herein. PART IV: TERMS AND CONDITIONa The parties to this agreement agree as follows: 4.01 Rate and Term of Loan The DEPARTMENT, using funds appropriated from the Public Works Assistance Account, shall loan the LOCAL GOVERNMENT a sum not to exceed $86,400. The interest rate shall be three percent (3 per annum on the outstanding principal balance. The term of the loan shall not exceed 20 years, with the final payment due July 1, 2012. 4.02 Local Proiect Shaj The LOCAL GOVERNMENT pledges an amount of locally- generated revenue not less than ten percent (10 of the total eligible portion of the project cost not funded by federal or state grants as identified in ATTACHMENT I: SCOPE OF WORK, to be verified at the time of project close -out. Any change in the percentage of locally- generated funds may require an adjustment in the loan amount or interest rate charged, or both. In such event, the LOCAL GOVERNMENT agrees to _execute an amendment to this agreement adjusting the loan amount or interest rate, as appropriate. 2 Local project share must consist of expenditures eligible under WAC 399 -30- 030(3) and be related only to project activities described in ATTACHMENT I: SCOPE OF WORK. These expenditures may be made up to twelve (12) months prior to the execution of the loan agreement and verified at the time of project close -out. PUBLIC WORKS TRUST FUND MONIES MAY NOT BE USED TO REIMBURSE THE LOCAL GOVERNMENT FOR ANY COSTS INCURRED PRIOR TO EXECUTION OF THIS LOAN AGREEMENT. 4,Q3 Disbursement of Loan Proceeds The DEPARTMENT shall issue warrants to the LOCAL GOVERNMENT for payment of allowable expenses incurred by the LOCAL GOVERNMENT while undertaking and administering approved project activities in accordance with ATTACHMENT I: SCOPE OF WORK. In no event shall the total Public Works Trust Fund loan exceed ninety percent (90 of the eligible actual project costs. The disbursement of loan proceeds shall be initiated by the LOCAL GOVERNMENT on a Washington State Invoice Voucher form provided by the DEPARTMENT. The loan funds will be disbursed to the LOCAL GOVERNMENT as follows: Within thirty (30) days of the formal execution of this agreement, a sum not to exceed fifteen percent (15 of the approved Public Works Trust Fund loan shall be disbursed by the DEPARTMENT to the LOCAL GOVERNMENT. Within thirty (30) days of the execution of a Notice to Proceed which follows the formal award of a construction contract, a sum not to exceed seventy -five percent (75 of the approved Public Works Trust Fund loan shall be disbursed by the DEPARTMENT to the LOCAL GOVERNMENT, except in the case of engineering services contracts. If the approved project described in ATTACHMENT I: SCOPE OF WORK is solely for the completion of engineering studies, a sum not to exceed seventy -five percent (75 of the approved Public Works Trust Fund loan shall be disbursed by the DEPARTMENT to the LOCAL GOVERNMENT within thirty (30) days of the execution of a Notice to Proceed following the formal award of a contract for engineering services. At the time of project completion, a Close -out Report shall be submitted to the DEPARTMENT by the LOCAL GOVERNMENT, certifying total actual project costs. The Close -out Report shall include copies of the approved closure reports from the Department of Revenue and the Department of Labor Industries. The final Public Works Trust Fund loan disbursement shall not bring the total loan in excess of ninety percent (90 of the eligible project costs or the total of $86,400, whichever is less, nor shall this disbursement occur prior to the completion of all project activities and clearance of all Close -out documents from the Department of Revenue and the Department of Labor Industries. The Close- out Report shall serve as a contract AMENDMENT for determining the final loan amount, interest rate, and local share. In the event that the final costs identified in the Close -out Report indicate that the LOCAL GOVERNMENT has received Public Works Trust Fund monies in excess of ninety percent (90 of eligible costs, all funds in excess of ninety percent (90 shall be repaid to the DEPARTMENT within thirty (30) days of submission of the Close -out Report. 3 4.04 Interest Eamed on Public Works Trust Fund Monies All interest eamed on funds disbursed by the DEPARTMENT and held by the LOCAL GOVERNMENT shall accrue to the benefit of the LOCAL GOVERNMENT and be applied to the eligible costs of the approved project. Benefits shall accrue in one of two ways: 1. Reduce the amount of the Public Works Trust Fund loan. 2. Pay part of the eligible project costs that are in excess of ATTACHMENT I: SCOPE OF WORK estimates. (Overrun of project costs.) The LOCAL GOVERNMENT shall establish procedures to ensure that all monies received from the Public Works Trust Fund loan can be readily identified and accounted for at any time during the life of this loan agreement. Such procedures shall consist of the establishment of a separate fund, account, sub account or any other method meeting generally accepted accounting principles. 4.05 Time of Performance The LOCAL GOVERNMENT shall begin the activities identified within ATTACHMENT I: SCOPE OF WORK no later than October 1, 1992 and reach project completion no later than thirty (30) months after the date of agreement execution. Failure to perform within the time frame described in the preceding paragraph may constitute default of this agreement and require the immediate repayment of any loan funds disbursed. In the event of extenuating circumstances, the LOCAL GOVERNMENT may request, in writing, that the BOARD extend the deadline for project completion. The BOARD may, by a two-thirds vote, extend the deadline. This loan agreement shall be in place during the entire term of the loan regardless of the time of actual project completion. _4.06 Repayment The first loan repayment under this agreement is due July 1, 1993 and subsequent installments are due on July 1 of each year during the term of the loan. The first repayment under this agreement shall consist of interest only at the rate of three percent (3 per annum, calculated on a 360 -day year of twelve 30 -day months, applied to funds received from the DEPARTMENT. Interest will begin to accrue from the date the DEPARTMENT issues each warrant to the LOCAL GOVERNMENT. Subsequent repayments shall consist of (1/19) of the principal plus interest on the unpaid balance of the loan. The final payment shall be an amount sufficient to bring the loan balance to zero. The LOCAL GOVERNMENT has the right to repay the unpaid balance of the loan in full at any time, and the right to repay at a faster rate than is provided in this agreement, provided that any such payment must equal or exceed the amount normally due on an annual basis. 4 The LOCAL GOVERNMENT 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 DEPARTMENT and sent to: Department of Community Development Administrative Services Division /Fiscal Unit 906 Columbia Street South P. O. Box 48300 Olympia, Washington 98504 -8300 4.07 Repayment Account The LOCAL GOVERNMENT shall repay the loan solely from utility revenues, general obligation revenues, or a combination thereof. The name of the fund, account, or sub account shall be Rote_ Yr*IE EXcwSE 7 X Pkie✓a *Va /ore XTREir 4,1)8 Default in Repayment Loan repayments shall be made to the DEPARTMENT in accordance with Section 4.06 of this agreement. A payment not received within thirty (30) days of the due date shall be declared delinquent. Delinquent payments shall be assessed a penalty of twelve percent (12 interest per annum calculated on a 360 -day year. Upon default in the payment of any annual installment, the DEPARTMENT may declare the entire remaining balance of the loan, togetherwith interest accrued, immediately due and payable. Failure to exercise its option with respect to any such repayment in default shall not constitute a waiver by the DEPARTMENT to exercise such option for any succeeding installment payment which may then be in default. The LOCAL GOVERNMENT shall pay the costs and reasonable legal fees incurred by the DEPARTMENT in any action undertaken to enforce its rights under this section. 4,Q9 Utility System Optional Repayment and Debt Parity This section is for the use of LOCAL GOVERNMENTS desiring to specify that debt repayment is not a general tax obligation of the LOCAL GOVERNMENT. This section may be used only if the entire project is a domestic water, sanitary sewer, or storm sewer utility project. LOCAL GOVERNMENTS performing a storm sewer project that have not created a storm sewer utility or a surface water utility may not use this section. Projects which provide for a combination of bridge, road, domestic water, sanitary sewer, and storm sewer activities may not utilize this section. Combination projects shall remain a general tax obligation of the LOCAL GOVERNMENT. In accordance with Section of this agreement, the LOCAL GOVERNMENT shall be obligated to make all such repayments only from the net revenue of the LOCAL GOVERNMENT'S utility after the payment of the principal of and interest on any outstanding revenue bonds or notes which constitute a lien or charge on that net revenue. As used here "net revenue" means gross revenue minus expenses of maintenance and operation. This loan agreement is not a general tax obligation of the LOCAL GOVERNMENT. 5 Nothing in this section shall absolve the LOCAL GOVERNMENT of its obligation to assure fiscal and managerial responsibility or to make loan repayments when due, and to adjust rates, fees, surcharges, if necessary, to meet its obligations under this agreement. Lien position of the debt evidenced by this loan agreement is set forth as follows: The LOCAL GOVERNMENT may, without limitation or restriction, issue revenue bonds in the future with a lien and charge for their repayment on that net revenue prior and superior to the claim on that revenue evidenced by this agreement. UTILITY SYSTEM OPTION AGREED TO BY: RTMENT OF C AMUNITY LOCAL GOVERNMENT LOPMENT 4.11 Reports 4.12 Indemnification 4`'f0 Recordkeeping and Access to Records The LOCAL GOVERNMENT agrees to keep such records as the DEPARTMENT may require. Such records will include information pertinent to work undertaken as part of the project, including demonstration of compliance with the terms and provisions of this agreement and all applicable _state and local laws and ordinances. The LOCAL GOVERNMENT agrees to retain these records for a period of three years from the date of project completion. The DEPARTMENT and duly authorized officials of the state shall have full access and the right to examine, excerpt, or transcribe any pertinent documents, papers, records, and books of the LOCAL GOVERNMENT and of persons, firms, or organizations with which the LOCAL GOVERNMENT may contract, involving transactions related to this project and this agreement. The LOCAL GOVERNMENT, at such times and in such forms as the DEPARTMENT or the BOARD may require, shall fumish the DEPARTMENTwith such periodic reports as it may request pertaining to the activities undertaken pursuant to this agreement including, but not limited to, quarterly progress reports, the Close -Out Report, and any other matters covered by this agreement. Failure to file periodic reports as requested may result in termination of this agreement as per Section 4.15. The LOCAL GOVERNMENT will defend, protect, indemnify, save, and hold harmless the DEPARTMENT, the BOARD, and the state of Washington from and against any and all claims, costs, damages, expenses, or liability for any or all injuries to persons or tangible property, arising from the acts or omissions of the LOCAL GOVERNMENT or any authorized contractor, or any employees or agents of either in the performance of this agreement, however caused. In the case of negligence of both the DEPARTMENT and the LOCAL GOVERNMENT, any damages allowed shall be levied in proportion to the percentage of negligence attributable to each party. 6 4.13 Amendments. Modifications. and Waivers Except for an increase in the amount of the loan governed by this agreement or for an extension of the time of performance under Section 4.05, the LOCAL GOVERNMENT or the DEPARTMENT may request an amendment or modification of this agreement. However, such amendment or modification shall not take effect until approved in writing by both the DEPARTMENT and the LOCAL GOVERNMENT and attached hereto. No conditions or provisions of this agreement may be waived unless approved by the DEPARTMENT in writing. 4.14 Disputes Except as otherwise provided in this agreement, any dispute conceming a question of fact arising under this agreement that is not disposed of by this agreement shall be decided by a panel consisting of a representative of the DEPARTMENT, a representative of the LOCAL GOVERNMENT, and a representative of the BOARD. The panel shall reduce its decision to writing and fumish a copy to all parties to the agreement. The decision of the panel shall be final and conclusive. This clause does not preclude the consideration of questions of law in connection with decisions provided for in the preceding paragraph provided that nothing in this agreement shall be construed as making final the decisions of any administrative official, representative, or board on a question of law. 415 Termination for Cause If the LOCAL GOVERNMENT fails to comply with the terms of this agreement, or fails to use the loan proceeds only for those activities identified in ATTACHMENT I: SCOPE OF WORK, the DEPARTMENT may terminate the agreement in whole or in part at any time. The DEPARTMENT shall promptly notify the LOCAL GOVERNMENT in writing of its determination to terminate, the reason for such termination, and the effective date of the termination. Upon termination of the loan agreement, the DEPARTMENT shall declare the entire remaining balance of the loan, together with any interest accrued, immediately due and payable. 4.16 Governing Law and Venja This agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the state of Washington. Venue of any suit between the parties arising out of this agreement shall be the Superior Court of Thurston County, Washington. The prevailing party is entitled to recover costs in accordance with Washington State Law (RCW 4.84). 4.17 Severability If any provision under this agreement or its application to any person or circumstances is held invalid by any court of rightful jurisdiction, this invalidity does not affect other provisions of the agreement which can be given effect without the invalid provision. 7 4.18 Project Completion The DEPARTMENT will require and notify the LOCAL GOVERNMENT to initiate a Close -out Report when the activities identified in ATTACHMENT I: SCOPE OF WORK are completed. The LOCAL GOVERNMENT will provide the following information to the DEPARTMENT: _1. A description of the actual work performed, in addition to a certified statement of the actual dollar amounts spent, from all fund sources, in completing the project as described. 2. 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. 3. Copies of the approved closure reports from the Department of Revenue and the Department of Labor Industries, certifying that all sales taxes have been paid and appropriate industrial insurance and prevailing wages have been paid. 4.19 Project Close -out In accordance with Section 4.03 of this agreement, the LOCAL GOVERNMENT will submit, together with the Close -out Report, a request for a sum not to exceed the final ten percent (10 of the loan amount. This disbursement shall not occur prior to the completion of all project activities and clearance of all Close -out documents from the Department of Revenue and the Department of Labor Industries. The LOCAL GOVERNMENT shall be responsible to ensure compliance with the Department of Revenue and the Department of Labor Industries requirements by their contractor(s). 4.20 Audit Audits of the LOCAL GOVERNMENT'S project activities may be conducted by the Municipal Division of the State Auditor's Office in accordance with state law and any guidelines the DEPARTMENT may prescribe. Payment for the audit shall be made by the LOCAL GOVERNMENT. 4.21 Proiect Sia If the LOCAL GOVERNMENT displays, during the period covered by this agreement, 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. 4.22 Utilization of Minority and Women Business Enterprises (MWBE) The LOCAL GOVERNMENT is encouraged to utilize business firms that are certified as minority owned and /or women -owned in carrying out the purposes of this loan agreement. LOCAL GOVERNMENTS may set their own utilization standards, based upon local conditions, or may utilize the state of Washington MWBE goals, as identified in WAC 326 -30- 03901. 8 423 Nondiscrimination Provision There shall not be discrimination against any employee who is paid by the funds indicated in the contract or against any applicant for such employment because of race, color, sex, age, or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment, advertising, lay -off or termination, rates or pay or other forms of compensation and selection for training. PART V: SPECIAL ASSURANCES The LOCAL GOVERNMENT assures compliance with all applicable state and local laws, requirements, and ordinances as they pertain to the design, implementation, and administration of the approved project. Of particular importance are the following: 5.01 RCW 43.155.060 The LOCAL GOVERNMENT 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 Trust Fund program. 5.02 WAC 399 -30- 030(3) The LOCAL GOVERNMENT assures compliance with WAC 399 -30- 030(3) which identifies eligible costs for projects assisted with Public Works Trust Fund loans. 9 City of Port Angeles (Jurisdiction) Signed Date Telephone PUBLIC WORKS TRUST FUND ATTACHMENT 1: SCOPE OF WORK PW -5 -92- 280 -032 Eighth and Peabody Creek Culvert Reconstruction (Project Title) 1. Provide a clear description of the project to be financed in part by a Public Works Trust Fund loan (attach an additional sheet if necessary): Design, permitting and construction to restore failing dual 60" culverts for Peabody Creek under Eighth Street. The work will include lining existing culverts with two 60" x 275' cmp culverts, grouting to stabilize, installing headwalls, and stream protective measures as required by Hydraulic Permit issued by Washington Department of Wildlife. 2. The term for this loan will be based on an engineer's certification of the expected useful life of the improvements, as stated below, or 20 years, whichever is less. If the local govemment prefers the term of its loan to be Jess than either 20 years or the useful life of the improvements, the preferred loan term should be indicated: years. 3. 1, Gary Kenworthy licensed engineer, certify that the average expected useful life for the improvements described above is 50 years. 9 o 4 l l SCOPE OF WORK Page 2 PW -5 -92- 280 -032' 4. Estimated Project Timetable: (based on the possible execution of a Loan Agreement by April 1, 1992) Completion of Engineering Awarding Construction Contract Completion of Construction 5. Estimated Project Costs: .Preliminary Engineering Report f`De °sign Engineering Land or Right -of -Way Acquisition Sales or Use Taxes Other Fees Inspection /Construction Engineering Start-up Costs Financing Costs Contingency Construction TOTAL ESTIMATED PROJECT COSTS 6. Anticipated Fund Sources: Public Works Trust Fund Loan Other State Funds from Other (identify source) May 29, 1992 July 7, 1992 October 5, 1992 1,000 2,000 2,000 2,000 10,000 79,000 96.000 Note: The loan cannot exceed the amount identified above. Local Participation, not Tess that 10% from: General Funds Capital Reserves Other Fund Real Estate Excise Tax Fund 9,600 Rates Assessments (LID, RID, ULID) Special Levies Federal Funds from TOTAL FUNDS Q6 nnn (date) (date) (date) $86,400 RECEIV JUN Q 9 1992 PUBLIC WORKS RECEIVED JUN 1 2 1992 PUBLIC WORKS ATTACHMENT II: ATTORNEY'S CERTIFICATION 3 51 l K hereby certify: Address Based on the foregoing, it is my opinion that: K y., •_s. Name PUBLIC WORKS TRUST FUND 1 am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the (the LOCAL GOVERNMENT); and I have reviewed Loan Agreement to be executed between the LOCAL GOVERNMENT and the Department of Community Development (the DEPARTMENT); and I have also examined any and all documents and records which are pertinent to the loan agreement, including the application requesting this financial assistance. 1. The LOCAL GOVERNMENT 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 LOCAL GOVERNMENT is empowered to accept the Public Works Trust 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 LOCAL GOVERNMENT from repaying the Public Works Trust Fund loan extended by the DEPARTMENT with respect to such project. The LOCAL GOVERNMENT 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 LOCAL GOVERNMENT. a it ->6/ (/27q? Signature k Attorney Date/