HomeMy WebLinkAbout4753 RESOLUTION NO. 4753
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR TO EXECUTE A CONSTRUGTION
LOAN AGREEMENT BETWEEN THE CITY OF
AUBURN AND THE WASHINGTON STATE PUBLIC
WORKS BOARD RELATING TO THE M STREET SE
UNDERPASS PROJECT (C201A)
WHEREAS, the City was awarded a Public Woiics Trust Fund Loan in the
amount not to exceed $6,800,000 to assist in the design, property acquisition,
and construction of the M Street 8E Underpass Froject (Project) that does not
require a local match; and
WHEREAS, the City has qualified for a 0.5% interest rate and a 30-year
term and the interest rate may be reduced to 0.25% percent if the Project
construction is completed within four years of the loan agreement execution
date; and -
WHEREAS, it is in the best interest of the City to use this loan to finance
the Project funding gap so the project can be advertised for construction bids
this year and meet the Freight Mobility Strategic Investment Board's (FMSIB)
schedule requirements; and
WHEREAS, 'rf the project is not advertised for construction bids this year,
the City will lose a $6,000;000 grant awarded by FMSIB for the projecYs
construction; and
Resolution No. 4753
September 15, 2011
Page 1 of 3
WHEREAS, the Washirigton State Public Works Boarii requires the.
execution of a Construction Loan Agreement to u4ilize 4hese funds.
NOW, THEREFORE, THE GITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor is hereby authorized to execute a Construction
Loan Agreement between the City and Washington State Public Works Board
for the design, property acquisition, and construction phases of.the M Street SE
Underpass Project in the total amount not to exceed $6,800,000, in substantiaf
conformity with the agreement attached hereto, marked as Exhibit "A" and
incorporated herein by this reference. In addition, the Mayor is hereby
authorized to execute any necessary future agreement amendmerrts related to
the Construction Loan Agreement..
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directions of
this legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
Resolution No.4753
September 15,2011
Page 2 of 3
Dated and Signed this -3�day of ��=�=e`�3011.
CITY OFAUBURN
w /�
R B. LEWIS �
MAYOR
ATTEST:
' �
��z�C�
D`anielle E. Daskam,.
City Clerk
APP VE S TO FORM:
Daniel B. He ,
City Attomey
Resolution No.4753
September 15, 2011
Page 3 of 3
sta�w C?o�A,
' , • - Pro)ect No. Ru.i�F,•.n K7s3
' Ffle No. o.,�..,.� ��T�n' zA. ksr,
Desk Copy
Cc: —'---
�,�� �t�/.Ie..h3 _ p�....ece
Washington State `�f"'"�"�
( 1 Public Works Board F�4 C2ii�4 - i�r
1 j 1011 Plum Street SE
� Post Offlce Box 42528
/ Olympla,Washington 88604-TbZ6
2012 Construction Loan Agreement between:
City of Auburn
and
Public Works Board
For:
Project Name: M Street SE Grade Separation
Loan Number: PC12-951-012
Loan Type: Construction
Execution/Start Date: �GT � l 2 a � �
,
(to be filled by the Public works Boarcl)
Ciry of Aubum Page 2 ConVact Terms and CondRions
PC12-951-012 9I22/2011 Construdion Loan ContraG
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TABLE OF CONTENTS
CONTRACTFACE SHEET....................................................................................................... 5
CONTRACT TERMS AND CONDITIONS................................................................................. 6
Part 7. SPECIAL TERMS AND CONDITIONS..........................................................................6
1.1. Definitions...............................................................................................................................6
1.2. Authority..................................................................................................................................6
1.3. Purpose...................................................................................................................................6
1.4. Order of Precedence..............................................................................................................6
1.5. 5-year deferral for startup systems.......................................................................................6
1.6. Competitive Bidding Requiremerrts........................................................................................7
1.7. Detault in RepaymeM.............................................................................................................7
1.8. Investment Grade Audit..........................................................................................................7
1.9. Local Matching Share and Eligible ProjeG Costs...................................................................7
1.10. Historical and Cultural Resoum.es..........................................................................................8
1.11. Pertormance Incer�tives..........................................................................................................8
1.12. Project Completion Amendmerd and Certified Project Completion Report............................9
1.t3. ProjectSigns...........................................................................................................................9
1.14. Rate and Term of Loan...........................................................................................................9
1.15. Rerapture...............................................................................................................................9
1.16. Reimbwsement Procedures and Payment.............................................................................9
1.17. Repaymerrt............................................................................................................................11
1.18. Reports.................................................................................................................................11
1.19. Termination for Cause..........................................................................................................11
1.20. Tertnircation for Convenience................................................................................................11
121. Time of Performance............................................................................................................12
Part 2. GENERAL TERMS AND CONDITIONS._••••........................................_.....................13
2.1. DEFINITIONS.......................................................................................................................13
2.2. AliowableCosts....................................................................................................................13
2.3. ALL WRITINGS CONTAINED HEREIN ...............................................................................13
2.4. AMENDMENTS....................................................................................................................13
2.5. AMERICANS WITH DISABILITIES ACT(ADA)OF 1990, PUBLIC LAW 101-336,also
referred to as the"ADA"28 CFR Part 35.............................................................................13
2.6. APPROVAL...........................................................................................................................13
2.7. ASSIGNMENT......................................................................................................................13
2.8. ATTORNEYS' FEES.............................................................................................................14
2.9. AUDIT...................................................................................................................................14
2.10. CODE REQUIREMENTS.....................................................................................................15
2.11. CONFIDENTIALITYlSAFEGUARDING OF INFORMATION ...............................................15
2.12. CONFORMANCE.................................................................................................................16
2.13. COPYRIGHT PROVISIONS.................................................................................................16
2.14. DISALLOWED COSTS.........................................................................................................16
2.15. DISPUTES............................................................................................................................16
2.16. DUPLICATE PAYMENT.......................................................................................................17
2.17. ETHICS/CONFLICTS OF INTEREST..................................................................................17
2.18. GOVERNING LAW AND VENUE.........................................................................................17
City of Aubum Page 3 Contrad Tertns and Conddions
PC12-951-012 9l22/2011 Cons6vction Loan Contract
2.19. INDEMNIFICATION..............................................................................................................17
2.20. INDEPENDENT CAPACITY OF THE CONTRACTOR........................................................17
2.21. INDUSTRIAL INSURANCE COVERAGE.............................................................................17
2.22. LAWS....................................................................................................................................18
2.23. LICENSING,ACCREDITATION AND REGISTRATION......................................................18
2.24. LIMITATION OF AUTHORITY..............................................................................................18
2.25. Local Public Transportation Coordination.............................................................................18
2.26. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS.................................................19
2.27. POLITICAL ACTIVffIES.......................................................................................................19
2.28. PREVAILING WAGE LAW...................................................................................................19
2.29. PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION................................19
2.30. PUBLICITY...........................................................................................................................19
2.31. RECAPTURE........................................................................................................................19
2.32. RECORDS MAINTENANCE.................................................................................................20
2.33. REGISTRATION WITH DEPARTMENT OF REVENUE......................................................20
2.34. RIGHT OF INSPECTION......................................................................................................20
2.35. SAVINGS..............................................................................................................................20
2.36. SEVERABIIITY....................................................................................................................20
2.37. SUBCONTRACTING............................................................................................................21
2.38. SURVIVAL............................................................................................................................21
2.39. TAXES..................................................................................................................................21
2.40. TERMINATION FOR CAUSE/SUSPENSION....................................................................21
2.41. TERMINATION FOR CONVENIENCE.................................................................................22
2.42. TERMINAI'ION PROCEDURES...........................................................................................22
2.43. WAIVER................................................................................................................................22
AITACHMENT I: SCOPE OF WORK..................................................................................... 23
A. PROJECT'S SCOPE OF WORK.....•••••.................................................................................23
B. ESTIMATED PROJECT COSTS...........................................••••............................................24
C.ANTICIPATED PRQIECT FUNDING....................................................................................25
Al'fACHMENT II: A7'TORNEY'S CERTIFICATION.................................................................26
City of Aubum Page 4 Contrad Terms and Conddions
PC12-951-012 9/22/2011 Construction Loan Contract
CONTRACT FACE SHEET
Contract Number: PC72-951-012
Washington State Department of Commerce
PUBLIC WORKS BOARD
CONSTRUCTION LOAN CONTRACT
1.Contractor 2.Contractor poing Business As(optional)
City of Aubum N!A
25 West Main Street
Aubum, WA 98001
3.Contraetor Representative 4.Publle Works Board RepresentaUve
N/A N!A
5.Contract Amount &Funding Source 7.Contrad StaR 8.ConVact End
Date Date
$6,800,000.00 Federel: ❑ S�te: � Other. ❑ Contract Execution June 1,2D42
NlA: ❑ Date
9. Federal Funds(as applicable) Federal Agency CFDA Num6er
N/A N/A N/A
10.TauID# 11.SWV# 72. U81# 13.DUNS#
916001228
14.Contract Purpase
Fund a project of a locaf gwemment for the planning, acquisition,construction, repair, reconstruction,
replacement, rehabilitation,or improvement of streets and roads, bridges, drinking water systems, stormwater
s stems sanita sewa e stems and solid waste facilities includin re clin facilities.
The Board, deflned as the Washington State Public Works Board,and ContraGOr acknowledge and accept the
tertns of this Contract and attadiments 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 govemed by
this Contrad and the following other documents incorporated by reference: Contrad Terms and Conditions
inGudin Attadimerrt I: Sco of Work and Attachmerrt II:Attome 's Certificatlon.
FOR THE CONTRACTOR FOR PUBLIC WORK BOARD
S�gnatu� � J LaRo ue, E e irector
� K � S ��.5 er /i
PriM Name e
� �p,��y M�vw
Title � APPROVED AS TO FORM ONLY
��T � g Z��' This 7th Dav of June.2011
Date Rob McKenna
Attomey General
Sianature on file
Kathryn Wyatt
Assistant Attome General
City of Aubum Page 5 Contrad Terms and Conditions
PC12-951-012 9/22/2011 Construction Loan Cor�traG
CONTRACT TERMS AND CONDITIONS
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
Part 1. SPECIAL TERMS AND CONDITIONS
1.1. D�nitions
As used throughout this Construction Loan Corrtract the following tertns shall have the meaning set forth
below:
A. "Contract"shall mean this Construedon Loan Contract.
B. "Contractor" shall mean the local govemment identified on the ConVact Face Sheet performing
service(sj under this Contract and who is a Party to the Contrect, and shall include all employees and
agents of the Contrador.
C. "The Board" shall mean the Washingtan State Public Works Board created in Revised Code of
Washington(RCWj 43.155.U30,and who is a Party to the CoMrad.
1.2. Authoritv
Acting under the authority of Chapter 43.155 RCW,the Board has awarded the ConVactor a Public Works
Trust Fund construction ioan for an approved public works projeet.
1.3. Pumose
The Board and the ConVaGOr have entered into this ConVact to undertake a local puCiic works project that
furthers the goals and objectives of the Washington State Public Works Program. The project will be
undertaken by the Contrador and will include the activities described in AITACHMENT I:SCOPE OF
WORK The project must be undertaken in accordance with the loan terms and conditions,and all
applicable federal, state and lopl laws and ordinances,which by this reference are incorporated into this
Contract as though set forth fully he2in.
1.4. Order of Precedenee
In the event of an inconsistency in this ConVact,the inconsistency shail be resolved by giving precedence
in the following order.
A. Applicable federal and state of Washington statutes and 2gulations.
B. Special Terms and Conditions inGuding attachments.
C. General Terms and Conditions.
1.5. 5-vear defema�for staR-uo svstems
If the project financed by this corriract ts 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 paymerrts
for sixty(60)months after the Contract execution date. The CoMractor may provide a written request to the
Board requesting a Syear deferral for an eligible system. The Board may approve the deferral request.
Interest accrues for the aforementioned sixty(60) mordhs. 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.
City of Aubum Page 6 Contrad Terms and Cond'Rions
PC12-951-012 9/22/2011 Conshuction loan Conhact
7.6. Comoetltive Biddina Reaui►ements
The CoMractor shall camply with the provisions of RCW 43.155.060 regarding competitive bidding
requiremeMs for projects assisted in whole or in part with money from the Public Works Program.
1.T. Default in Reoavment
Loan repaymerrts shall be made on the loan in accordance with Section 1.76 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(1 st)day past the due date. The penalty will be
assessed on the errtire payment amount. The penalty will be one percerrt(1°�)per month or twelve perceM
(12%) per annum. The same penalty tertns shall apply at projeG completion if the repayment of loan funds
in excess af eligible costs are not repaid at the time of the Project Compietion Amendment is submitted, as
provided for in Section 1.11.
The Contrador aclmowledges and agrees to tlie Board's right, upon delinquency in the paymeM of any
annual installment,to notity any other eNdy,aeditors, or potential creditors of the ConVactor of such
delinquency.
The Corrtractor shall be responsible for all legal fees incurred by the Board in any action undertaken to
enforce its rights under this section.
7.8. Investrnent Grade Audit
For projects involving repair, replacement, or improvement of a wastewater treatrnent plant,or other public
works facility for which an investrnent grade audit is obtainable,ConVactor must undertake an investrnerrt
grade audR.
Cosb incurred as paR of the investment grade audit are eligible projed costs.
1.9. Local Matchina Share and EIIalble Proiect Costs
The Contractor pledges to use an amount of matching funds as local projed share of not less than$0.00
applied to the total eligible portion of the project cost as identified in ATTACHMENT I: SCOPE OF WORK
State and federal grants are not wnsidered local matching funds. Expenditures on eligible projed aetivities
incurred up to hvelve(12)months prior to the execution of this Contract may be used as match for local
project share.
The amourrt of local funds used for the project will be verified and the percentage that this figure represerrts
of the total projed cost will be calculated at projec[completion. If and to the extent llie achial peroerdage aF
local match exceeds the proposed match perceMage,the loan amount and/or the irrterest rate charged may
be adjusted. At a minimum,the match provided cannot be less than the original match pledged at the time
of contract execution. The interest rate adjustment will apply to the remaining payments beginning the fiseal
year of project comptetion. The Contractor agrees to execute the Project Completion Amendmerrt as an
amendment to this Contract adjusting the loan amouM or interest rete,as appropriate.
Eligible project costs must consist af expenditures eligibie under Washington Administrative Code(WAC)
399-30-030 and be related only to project activities described in ATTACHMENT I: SCOPE OF WORK.
Eligible costs for reimbursement shall be construed to mean expendltures incuned and paid, or incurred
and payable within thirry(30)days of the reimbursemerrt request. Oniy�sts that have been incurred on or
after September 1,2010,and which are not counted as local share, are eligible for reimbursement under
this CoMract.
The Contrador assures wmpliance with WAC 399-30.030,which iderrtifies eligible costs for projects
assisted with Public Works Program loans.
These tertns supersede the terms in Section 22.Allowable Costs.
City of Auburn Page 7 CoMrad Tertns and Conditions
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1.70. Historical and Cuiturel Resources
Prior to commencing construction, Contractor shall complete the requirements of Govemor's Executive
Order 05-05,or,as a substitute for completion of Govemor's Executive Order OSOS, Contrac[or shall
complete Section 106 of the National Historic Preservation Act. Contrador agrees that the Contractor is
Iegally 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 daim related to such historical or cuRurel artifacts discovered,disturbed, or
damaged as a result of the projed funded by this Contrac[.
In addition to the requirements set forth in this Corrtract, Contractor shall, in accordance with Govemor's
Executive Order OSOS,coordinate with the Washington State Department of Archaeology and Historic
Preservation(DAHP), including any recommended consultation with any affected Vibe(s),during project
design and prior to construction to determine the existence of arry Vibal wltural resources affected by the
proposed project funded by this CoMract CoMractor agrees to avoid, minimize, or mitigate impacts to the
cultural resource as a corrtinuing pre-requisite to receipt of funds under this Corrtract.
The Contractor agrees that, unless the Contrador 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
ConUactor shall report the presence and location of the remains to the coroner and local enforcement
immediately,then contact DAHP and the concemed Vibe's cultural staff or committee.
The Contractor shall require this provision to be contained in all sub-conVacts for work or services related to
ATfACHMENT I: SCOPE OF W�RK.
In addition to the requiremeMs set forth in this Contract, CoMractor 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 1 D6 of the Natlonal Historic Preservation Act shall substitute for completion of
Govemor's Executive Order OS-O5.
In the event that fhe Contractor finds it neeessary to amend ATTACHMENT I: SCOPE OF WORK,the
ConVactor may be required to re-comply with Govemor's Exeadive Order�5-OS or Section 106 of the
National Historic Preservation Act
1.11. Pertormance Ineentives
The Contractor shall complete the project no later than sixty(60)months after the date of contrad
executian.
Should the Contractor complete the project within forty-eight(48)months of the date of contract execution,
the CoMractor may choose one of the two fotlowing incentives upon project completion:
Option A: The repayment period will be increased by twerrty-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%).
Should the Corrtractor complete the project within thirty-six(36)moMhs of the date of writract 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 iMerest rate will be decreased by up to one-half of one percent(0.50%).
City of Aubum Page 8 Contract Tertns and Conditions
PC12-951-012 9/22f2011 Construction Loan CoMract
Once an option is selected,the Contract shall be modified to note the appropriate change and no further
adjustmeM to the Contract for Pertortnance InceMives shall be authorized. Inespective of the pertormance
incentive chosen,at no point in time shall the minimum loan iMerest rate be less than 0.25°k.
The calculation of inte2st rate and tertn adjustments will apply to the remaining payments.
1.12. Proiect Comoletion Amendment and Certlfled Proiect ComoleUon ReooR
The Contractor shall complete a Certified ProJect Completion Report when atl activfties identified in
ATTACHMENT I: 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 ATTACHMENT I: SCOPE OF WORK, is complete
and, if applicable, meets required standards.
B. A certified statement of the acWal dollar amounts spent,from all funding sources, in completing the
project as described in AITACHMENT I: SCOPE OF WORK.
C. Certification that ali eosts associated with the project have been inwrred and have been axounted for.
Costs are incurred when goods and services are received and/ar eontrad work is perfortned.
D. A final vaucher for the remaining eligible tunds.
The Contrector 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 crompletion of all project activities identified in ATTACHMENT I: 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 tfie final
loan amount, local share,tertn,and interest rate.
1.13. Proteet Slans
If the Contractor displays,during the period wvered by this Contract, signs or markers iderrtifying those
agencies partiapating finandally in the approved project,the sign or marker must identify the Washington
Sqte Public Works Tnut Fund as a partidpant in the project.
1.14. Rate and Tertn of Loan
The Board shall loan the CoMractor a sum not to exceed$6,800,000.00. The interest rate shall be 0.50%
per annum on the ouYstanding principal balance. The term of the loan shall not exceed 30 years,with the
final payment due June 7,2042.
1.15. Recaoture
The right of recapture shail 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 ta its costs thereof, including attomeys tees.
These terms supersede the terms in Section 2.31. Recapture.
1.16. Reimbursement Procedures and Pavmerrt
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 urrtil such time as funds or appropriadon
become available. Therefore, subject to the availability of funds,wartants shall be issued to the Contrador
for reimbursement of allowable expenses incurred by the Contrador while undertaking and administering
approved project adivities in accordance with ATTACHMENT I: SCOPE OF WORK.
City of Aubum Page 9 Contract Terms and Conddions
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The Board shall reimburse the ConVactor for eligible project expenditures up to the maximum loan amount
under this contract, as identified in Sedion 1.13. When requesting reimbursemerrt for costs incurred,the
Contractor shali submR a signed and completed Invoice Voucher(Fortn A19), referencing the
ATTACHMENT I: SCOPE OF WORK projed adivity performed, and any appropriate documeMation such
as bills, invoices, and receipts. The Invoice Voucher must be certified by an official of the Contractor with
authority to bind the Contrador.
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 Invaice Voucher and the Projed SNatus Report,the
Board shall promptly remit a warrant to the ConUacDOr.
Requests for reimbursements for costs related to construetion activities will not be accepted until the
CoMrador provides:
• Proof of compliance with Govemor's Executive Order 05-OS or Sedion 106 of the National Historic
Preservation Act,as described in Section 1.9,and
• An signed Public Works Trust Fund Notice of Contract Award and Notice to Proceed,which follows
the formal award of a construction contract.
The CoMractor shall submit all Invoice Vouchers and ali required documentation to:
Contracts Administration Unit
Departrnent of Commerce
PO Box 42525
Olympia,WA 98504-2525
The Board will pay the Contrector upon a�eptance of the work perfortned and receipt of properly
compieted invoices. Invoices shall be submitted to the Board not more often than moMhly.
Payment shall be considered timely if made by the Board within thirty(30)calendar days after receipt of
properly compieted invoices. Payment shall be sent to the address designated by the CoMractor.
The Board may,at its sole discretion,terminate the contrad or withhold payments claimed by the
Contrador for services 2ndered if the Contrador fails to satisfactorily comply with arry tertn or eondition of
this contract.
No payments in advance or in anticipation of services or supplies to 6e provided under this conVact shall be
made by the Board.
Duolication of Bilied Costs. If the Contractor is entiUed to payment or has been or will be paid by another
source for an eligible project cost,then the Contrador shall not be reimbursed by the Board for that cost.
Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its
own organization or that of its subcontractors.
In no everrt shall the total Public Works loan exceed 100.00%of the eligible adual project costs.At the time
of project completion,the Contrador shall submit,to the Board,a Project Completion Amendment certifying
the total adual projed costs and local share.The final Public Works loan disbursement shall bring the total
loan to the lesser of 100.00°k of the eligi6le projed costs orthe total of$6,800,000.00. The Project
Compietion Amendment shall serve as an amendmeM to this Contract determining the final loan amount,
local share, and irderest 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°h of eligible costs,all funds in excess of
City of Aubum Page 10 Conffact Terms and CondRions
PC12-951-012 9/22/2011 ConsWdion Loan Contrad
100.00%shall be repaid to the Public Works Assistance Account by payment to fhe Departrnent of
Commerce, or its successor,together with the submissian of the Project Completlon Amendment.
1.77. Reoavment
Loan repayment instailments are due on June 1 st of each year during the 30-year fixed term of the loan.
The first loan repayment is due June 1,2012. Interest only will be charged for this payment if a
reimbursement is made prior to this date. All subsequent paymerrts shall consist of principal and accrued
interest due on June 1 st of each year during the remaining term of the loan.
Repayment of the loan under this Contract shall include an irrterest rate of 0.50% per annum based on a
three hundred and sixty(360)day year of twelve(12)thirty(30) day morrths. Interest wiil begin to accrue
from the date each warrant is issued to the Contractor. The final payment shall be on or before June 1,
2042, of an amount sufficieM to bring the loan balance to zero.
In the event that the Board approves ContractoPs request for a Syear deferrai as oWined in Section 1.5,
then the first loan repayment is due on June 1, 2016. Interest accrues for the sixty(60)months after
contraet exeartion. The aaxued interest only paymeM is due on June 1, 2016. Interest and principal
payments are due on June 1 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 CoMractor will repay the loan in accordance with the preceding conditions through the use of a check,
money order,or equivatent means made payable to the Washington State Department of Commerce, or its
successor.
1.18. e o
The Contractor shall fumish the Board with:
A. Project Status Reports with each Invoice Voucher,
B. Project Reports at the end of each fiscal year,
C. CeRified Project Completion Report at projeet completion(as deseribed'm Section 1.11),and
D. Other reports as the Board may require.
1.79.Termination for Cause
If the ConVactor fails to comply wlth the terms of this ContraG,or fails to use the loan proceeds only for
those activities ideMified in ATTACHMENT I: SCOPE OF WORK,the Board may terminate the ConVact in
whole or in part at any tima. The Board shail 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 toan.
These tertns supersede the tertns in Sedion 2.40 Termination for Cause/Suspension.
1.20.Tertnination for Convenience
The Board may terminffie this corrtrad in the eveM that state funds are no longer available to the Board,ar
are not appropriated for the purpose of ineeting the Board's obiigations under this contrad. Tertnination will
be effective when the Board sends written notice of termination to the Contrador. 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.
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1.21.Time of Perfortnance
No later than sixty(60) moMhs after the date of corrtrad execution the Cantractor must reach projed
completion.
Failure to meet Time of Performance shall constitute defautt of this contract. In the event of extenuating
circumstances,the Coritractor may request, in writing,that the Board extend the deadline for project
completion. The Board may extend the deadline.
The term of this contrad shall be for the entire term of the loan, regardless of actual project completion,
unless tertninated sooner as provided herein.
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Part 2. GENERAL TERMS AND CONDITIONS
2.1. DEFINITIONS
As used throughout this Contract,the following tertns 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 fhe Chair's behalf.
B. "Contractor'shall mean the entity identified on the face sheet pertorming service(s) under this
Corrtract,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(RCWj 43.155.030,and which is a Party to the Contrad
D. °Personal Information"shali 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 govemmeMal services or other activities, addresses,telephone numbers, social securiry
numbers,driver license numbers, other iderrtifying numbers, and arry financial identifiers.
E. °State'shall mean the state of Washington.
F. "Subco�trector'shall mean one not in the employmeM of the Contractor,who is pertortning all or
part of those services under this Contrad under a separate contract with the Contractor. The terms
"subconVactor"and"subcontractors"mean subcontractor(s) in any tier.
2.2. ALLOWABLE COSTS
Costs allowable under this CoMrad are actual expenditures a�ording to an approved budget up to the
maximum amount stated on the Corm-act 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 othervvise, regarding the subject matter of this CoMract shall be deemed to exist or to bind any of the
parties hereW.
2.0. AMENDMENTS
This Corrtract may be amended by mutual agreemeM 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 DISABILITfES ACT(ADA1�F 1990.PUBUC LAW 101-336.ALSO R�ERRED TO
AS THE"ADA" 28 CFR PART 35
The Contrador must comply with the ADA,which provides comprehensive civit rights protection to
individuals with disabilities in fhe areas of employment, public accommodaUons,state and local govemment
services,and telecommunications.
2.6. APPROVAL
This contrad shall be subject to the wrilten approval of the Board's Authorized RepresentaGve and shall not
be binding until so approved. The corrtract may be altered,amended,or waived only by a written
amendment executed by both parties.
2.7. ASSIGNMENT
Neither this ConUad, 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 Contrad, in the event of litigation or other action
brougM to enforce Contract terms,each party agrees to bear its own attomeys fees and costs.
2.9. AUDIT
A. General Reauirements
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 Subcontrectors also mair�tain auditable records.
The Contractor is responsible for any audit exceptions Incurred by its own organization or that of its
Subwrrtractors.
The Board reserves the right to recover from the Contrector all disallowed costs resul6ng 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); Govemmarrt Auditing Standards(the
Revised Yellow Book)developed by the Comptroller General.
Responses to arry unresolved managemerrt findings and disallowed or questioned costs shall be
induded with the audit report. The Contrador must respond to the Board's requests for information or
corractive action conceming audft issues within thirty(30)days of the date of request.
B. State Funds Reaulrements
Cor�tradors expending$100,000 or more in total state funds in a fiscal year must have a financial audit
as defined by Govemmert Audfing Standards(The Revised Yellow Book)and according to Generally
Accepted Auditing Standards(GAAS).The Schedule of State Financial Assistance must be induded.
The schedule indudes:
GraMor agency name
State program name
BARS account number
Grantor
Agency wntrad number
Contrad award amouM induding amendments(total grent award)
Beginning balance
Curtentyearrevenues
Current year expendihrres
Ending balance
Program total
If the Contractor is a state or lopl gwemment errtity,the Office of the State Auditor shall condud Uie
audit. Audits of non-profit organizations are to be conducted by a certfied puWic accowtarn selected
by the Contractor.
The Contredor shall include the above audit requirements in any subcoMracts.
In any case,the Contrador's finanaal records must be available for review by the Board .
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C. DocumeMation Reauirements
The Contrador 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)morrths after the end of the Contrador's fiscal year(s)
to:
Department of Commerce
ATTN: Audit Review and Resolution Office
PO Box 42525
Olympia WA 985042525
In addition to sending a copy of the audR,when applicable,the Contractor must include:
• Corrective action plan for audtt findings within three(3) months of the audit being received by the
Board.
• Copy of the Managemert Letter.
2.10. CODE REQUIREMENTS
All construction and rehabilitation projects must satisiy the requirements of applipble local, state,and
federal building, meehanical, 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 speafied by the Iocai building
Departmerrt.
211. CONFlDENTIALITYISAFEGUARDING OF INFORMATION
A. "Confiderrtial Information"as used in this section inGudes:
1. All material provided to the Cordractor by the Board that is designated as"cor�fidenGal°by the Board;
2. All material produced by the Contractor that is designated as"confidential"by the Board;and
3. All personal infortnation in the possession of the Contrador that may not be disGosed under state or
federal law. "Personal infortnation"includes but is not limited to irrformation related to a person's
name, health,finances, education, business, use of govemment services, addresses,telephone
numbers, social security number,driver's license number and other identifying numbers, and
"Protected Health Ir�formation"under the federal Health Insuranee Portabil'dy and Aecountability Act of
1996(HIPAA).
B. The Contractor shall comply with ali state and federal lauvs related to the use, sharing,transfer, sale,or
disdosure of Confidential Information.The Contractor shali use Confidential Information solely for the
puryoses of this Contract and shall not use, share,Vansfer, sell or disclose any Co�derrtial Information
to any third parly except with the prior written conserrt of the Board or as may be required by law.The
Contractor shall take all necessary steps to assure that CmifideMial Infortnation is safeguarded to
preverd unauthorized use,sharing,transfer,sale or disclosure of Cor�fidemial Infortnation or violation of
any state or tederal laws related thereto. Upon request,the Contrador shall provide THE BOARD with
ks policies and procedures on confidentialiry. 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 disdosures. The Contractor shall make the changes within the time
period specified by the Board. Upon request,the Contractor shall immediately retum to the Board any
ConfidenGal Information thffi the Board reasonably detertnines has not been adequffiely proteded by
the CoMrador against unauthorized disclosure.
C. Unauthorized Use or DisGosu2.The Corrtractor 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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2.72.CONFORAAANCE
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 othervvise provided, all Materials produced under this Corrtract shall be considered"works for hire"
as defined by the U.S. Copyright Ad 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 irrewqbly assigns all rigM,title,and interest in all Materials,
including all intellectual property rights, moral rights, and rights of publiciry to the Board effedive from the
moment of creation of such Materials.
"Materials"means ali items in any format and includes, but is not limited to,data, reports,documents,
pamphlets,advertisements, books, magazines, surveys, studies,computer programs,films,tapes,andlor
sound reprodudions. "Ownership"ineludes the right to copyrigM,patent, register and the ability to Vansfer
these rights.
For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced
under the Corrtrect,the CoMractor hereby grarrts to the Board a nonexclusive, royalty-free, irrevocable
license(with rights to subli�nse to others) in such Materials to translate, reproduce, distribute, prepare
derivative works, publicly pertorm, and publidy display. The Contractor warrants and represents that the
Contrador has a11 rights and permissions, including intellectual property rights, morel rfghts and rights of
publicity, necessary to graM such a license to the Board.
The Contractor shall exert all reasonable effort to advise the Board, at the time of delivery of Materiais
fumished under this Contract,of all known or potential invasions oF privacy coMained therein and af any
portion of such document which was not produced in the perFortnance of this Corrtract. The Contractor shall
provide the Board with prompt written notice of each notice or claim of inTringement received by the
Contrador with respect to any Materials delivered under this ConVad.The Board shall have the right to
modify or remove any restrietive markings placed upon the Materials by the Contractor.
214. DtSALLOWED COSTS
The Contrat3or is responsible for any audit exceptions or disallowed costs incurred by its own organization
or thffi of its Subcontradors.
2.15. DISPUTES
Except as othennrise provided in this Contrad,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 Contraet number;and
• be mailed to the Chair and the other party's(respondent's) Rep2sentative within three(3)
working days after the parties agree that they eannot 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 eztend this period if necessary by notitying the parties.
The decision shall not be admissible in any succeeding judicial ar quasi-judidal proceeding.
The parties agree that this dispute process shall precede any action in a judidal or quasi-judicial tribunal.
Nothing in this Contract shall be construed to limit the parties'choice of a mutually acceptable altemate
dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above.
276.DUPLICATE PAYMENT
The Contractor certifies that work to be pertormed under this contrad does not duplicate any work to be
charged against any other coritrad, subcontraG,or other source.
2.17.ETHICS/CONFLICTS OF INTEREST
In performing under this Contract,the Contrector shall assure compliance with the Ethics in Public Service
Act(Chapter 42.52 RCV1!)and any other applieable state or federal law related to ethics or cor�flicts of
interest.
2.18.GOVERNING LAW AND VENUE
This Contrad shall be construed and interpreted in accordance witfi the laws of the state of Washington,
and the venue of any action brought hereunder shall be in the Superiar Court for Thurston County.
2.19.INDEMNIFlCATION
To the fullest exteM permilted by law,the Contractor shall indemnify,defend,and hold harmless the state of
Washington,tfie Board, all other agenaes of the state and all officers,agents and employees of the state,
from and against all Gaims or damages for injuries to persons or property or death arising out of or incident
to the Contractor's pertortnance or failure to pertorm the Contract. The Contractor's obligation to indemnify,
defend,and hold harmless includes any Gaim by the Contractor's ageMs, employees, representatives,or
any Subconhactor or its agerrts,employees,or representatives.
The Contractor's obligaUon to indemnify, defend, and hotd harmless shall not be eliminated by any actual or
alleged concurrent negligence of the state or its agents, agencies,employees and officers.
Subcontracts shall inGude a comprehensive indemnification clause holding hartnless the Contractor,the
Board,the state of Washington, its officers,employees and authorized ageMS.
The Contrador waives its immunity under TIUe 51 RCW to the extent it is required to indemnify,defend and
hold harmless the state and its agencies, officere, agerrts or employees.
2.20.INDEPENDENT CAPACITY OF THE CONTRACTOR
The parties intend that an independent contractor relationship will he created by this Confract The
Contrador and its employees or agents perfortning under this Contrad 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 Corrtractor.
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 insuranee 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
ConVactor to the accideM fund from the amouM payable to the CaMractor by the Board under this Contract,
and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance
Services. 7his provision does not waive any of L&I's rights to coilect from the Contrdctor.
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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 govemments, as now or hereafter amended including, but not limited to:
Washinqton State Laws and Requlations
A. Affirmative adion, RCW41.06.020(11).
B. Boards of directors or offlcers of non-profit corporations—Liability-Limitations, RCW 424.264.
C. Disclosure-campaign financeslobbying, 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 progrem,Chapter 43.1 BS RCW
G. Interlocal cooperation act,CFrapter 39.34 RCW.
H. Noise control, Chapter 70.107 RCW.
I. Oifice of minority and women's business enterprises, Chapter 38.19 RCW and Chapter 326-02
WAC.
J. Open publie 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 properry acquisition policy,Chapter 8.26 RCW.
N. Shoreline management act of 1971, Chapter 90.58 RCW.
O. Siate budgeting,accounting, and reporting system, Chapter 43.88 RCW.
P. State building code, Chapter 19.27 RCW and Energy-related building standards, Chapter 1927A
RCW, and Provisions in buildings for aged and handicapped persons, Chapter 70.92 RCW.
Q. State Coastal Zone Management Program, Publication 0'I-U6-OD3, Shorelands and
Environmental Assistance Program, Washington State Departrnent of Ecology.
R. State environmental policy, Chapter43.21C RCW.
S. State Executive Order OS-O5 Archeological and Cultural Resources.
2.23. LICENSING.ACCREDITATION AND REGISTRATION
The Contrador shall comply with all applicable local,state,and federal licensing,accreditation and
registration requirements or standards necessary for the pertormance of this Contract.
2.24.LIMITATION OF AUTHORITY
Only the Authorized RepreseMative 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 Gause or condition of this Contrad.
2.25.LOCAL PUBLIC TRANSPORTATtON COORDINATION
Where applicable, Contrador shall participate in loral public transportation forums and implement strategies
designed to ensure access to services.
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2.26. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
During the pertormance of this Contract,the CoMrador shall comply with all federal, state,and local
nondiscrimination laws, regulations and policies. In the event of the Contrador's non-compliance or refusal
to comply with any nondiscriminaHon law, regulffiion or policy,this contract may be rescinded, cenceled or
terminated in whole or in part, and the Contractor may be declared ineligible for Turther coMracts 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 wfth the"Disputes"procedure set forth herein.
2.27.POLITICAL ACTIVITIES
Political adivity of Contrador employees and officers are limited by the State Campaign Finan�s 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 ali eontractors and subcontractors pertorming 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, inGuding but not limited to the filing of the"Statemerrt of Intent to Pay Prevailing Wages"and
"Affidavit of Wages Paid"as required by RCW 39.12.040. The ConVador shall maintain recrords sufficient
to evidence eompliance with Chapter 39.12 RCW, and shall make su�records available for the Board's
review upon request.
2.29.PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION
The funds provided under this CoMract shail not be used in payment of any bonus or�mmission 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 othervvise eligible as project
costs.
2.30.PUBLICITY
The CoMractor agrees not to publish or use any advertising or publidty materials in which the state of
Washington or the Board's name is mentioned, or language used ftom which the connection with the state
of Washington's or the Board's name may reaso�ably be inferred or implied,without the prior written
conserrt of the Board.
2.31.RECAPTURE
In the everrt that the ConVactor fails to pertortn this contract in ac;cordance with shate laws,federal laws,
and/or the provisions of this contrad,the Board reserves the rigM to 2capture funds in an amount to
wmpensate 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 recapWre provision shall occur within the time period
specified by the Board. In the altemative,the Board may recapture such funds from payments due under
this contrect.
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2.32. RECORDS MAINTENANCE
The Contractor shall maintain all books, records,documerrts, data and other evidence relating to this
Contract and pertormance of the services described herein, inGuding but not limited to accounting
procedures and practices which sufficieMly and properly reflect all dired and indirect costs of any nature
expended in the performance of this Contract. ConVactor shail retain such records for a period of six years
following the date of final paymeM.
If any IiGgation, Gaim or audit is started before the expiration of the six(6)year period,the records shall be
retained until all litigation, claims,or aud'R findings involving the records have been finally resolved.
2.33.REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law,the ConVactor shall complete regisVation with the Washington State Departrnent of
Revenue.
2.34.RIGHT OF INSPECTION
At no additional cost ail records relating to the Contractor's pertormance 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 Contrdct.The Contrador shail provide a�s to its fadlities for this
purpose.
2.35.SAVINGS
In the eveM funding from state,federal,or other sources is withdrawn, reduced, or limited in any way aRer
the effective date of this Contract and prior to normal compietion,the Board may terminate the Contract
under the"7ermination for Convenience"ciause,without the ten business day notice requirement. In lieu of
termination, the Contrect may be amended to refled the new funding limiqtions and conditions.
2.86.SEVERABILITY
If any provision of this ConVact or any provision of any document incorporatad 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, 'rf such remainder confortns to the requiremerrts of law and the fundamerital purpose of
this Contrad and to this end the provisions of this ConVad are dedared tn be severable.
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237. SUBCONTRACTING
The Contractor may only subcontract work wntemplated under this Contrect if it obtains the priar 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 subconuacting 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 subcontrad shall bind the Subcontrador to follow all applicable terms of this CoMract.The Contractor
is responsible to the Board if the Subcor�actor faiis to wmpty with any applicable tertn or condition of this
Contrad.The Contractor shall appropriately monitor the activities of the Subcontrador to assure fiscal
conditions of this Contrad. In no event shall the existence of a subconVact operate to release or reduce the
liability of the Cantractor W the Board for any breach in the performance of the Contractors 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 Subcorrtractor's perfortnance of the suboontract.
2.38.SURVIVAL
The tertns, conditions, and warranties contained in this Contract that by their sense and context are
intended to survive the completion of the pertormance,cancellation or termination of this CoMract shall so
survive.
2.39.TAXES
All paymerrts accrued on account of payroll taxes, unemployment conVibutions,the Contractor's income or
gross receipts, any Mher taxes, insurance or expenses for the Contrector or its staff shall be the sole
responsibility of the Contractor.
2.40.TERMINATION FOR CAUSE I SUSPENSION
In event the BoarcJ determines that the CoMrador failed to comply with arry tertn or condition of this
Contract,the Board may terminate the Contract in whole or in part upon written notice to the ConVactor.
Such termination shall be deemed"for cause." Termination shall take effed on the date specified in the
notice.
In the altemative,the Board upon written notice may allow the CoMrador a specific period of time in which
to corred the non-compliance. During the eorzective-action time period,the Baard may suspend further
paymeM ta the Contractor in whole or in part,or may reshict the Contractor's rigM to perfortn duties under
this Contract. Failure by the Contractor to take timely corrective action shall allow the Board to terminate
the CoMract upon written rrotice M the Cantractor.
"Termination for Cause"shall be deemed a"Termination for Convenience"when the Board determines that
the Corrtractor did not fall to comply with the terms of the ConVact or when the Board determines the failure
was not caused by the Corrtrador's adions or negligence.
If the Contract is terminated for cause,the Contractor shalt be liable for damages as authorized by law,
including, but not limited to, any cost difference between the original contrec[and the replacement contrect,
as well as ail costs assocfated with entering into the replacement contract(i.e.,wmpetitive bidding, mailing,
advertising, and staff time).
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2.41.TERMINATION FOR CONVENIENCE
Except as othenvise 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 othenvise 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 subcordracts 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
subcoMracts so terminated, in which case the Board has the right, ffi its disuetion,to settie or pay any
or all claims arising out of the termination of such orders and subcontracts. Any attempt by the
Contrador to settle such Gaims must have the prior written appro�al of the Board; and
D. Preserve and transfer any materials, contrad deliverables and/or the Board property in the Contractor's
possession as directed by the Board.
Upon termination of the ConVact,the Board shall pay the Contrador for any service provitled by the
Contrador under the Contrad prior to the date of terminatian. The Board may withhold any amount due as
the Board 2asonahly 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 ConVactor if the Board later
determines that loss or liability will not occur.
The rights and remedies of the Board under this section are in addition to any other rights and remedies
provided under this ConUact or otheTwise 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 Corrtract unless stffied to be sueh
in writing and signed by Authorized Representative of the Board.
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ATTACHMENT 1: SCOPE OF WORK
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
City of Au6um
PC12-951-012
Project Title:
M Street SE Grade Seaaration
A. PROJECTS SCOPE OF WORK
The projecYs scope of work is comprised of the following activities:
The City will renovate a railroad crossing to facilitate the flow of traffic between SR 167 and SR
164. This project will improve traffic safety and result in a reduced environmental impact. Costs
may include, but are not limited to, engineering, cultural and historical resources review,
environmental review, right-of-way acquisition, permits, public involvement, bid documents, and
construction that allow the City to meet local, state, and federal regulations.
CNy of Aubum Page 23
PC12-951-012 9/22/2071 Construction Loan Contract
, : .
B. ESTIMATED PROJECT COSTS
Cost Category Amount
Engineering Report $225,000.00
Cultural and Historical Resources Review $50,000.00
(Section 106 or Executive Order OS-OS)
Environmental Review $30,000.00
Land/Right-of-Way Acquisition $4,355,000.00
Permits $30,000.00
Public InvotvemenUlnformation $50,000.00
Bid Documerrts $2,000,000.00
Construction $13,100,000.00
Other Fees (Sales or Use Taxes) $200,000.00
Contingency: 10.00% 51,300,000.00
Other: Construction $1,700,000.00
Eng ineering/I nspection
Other: $0.00
Other: $0.00
Other: $0.00
TOTAL ESTIMATED PROJECT COSTS $23,040,000.00
CRy of Aubum Page 24
PC12-951-012 9/22/2011 Construction Loan Contrect
' w •
C. ANTICIPATED PROJECT FUNDING
Type of Funding Source Description Amount
Grants
Grant#1 Federal -2008 Discretionary $122,500.00
Grant#2 Federal -2010 Discretionary 5749,872.00
Grant#3 State- FMSIB $6,000,000.00
Total Grants $6,872,372.00
Pdor PWTF PreConsbuctfon Loans
Non-Match Loan#1
Non-Match#2
Total Prior PWTP PreConstruction Loans
Loans
This PWTF Loan Request Public Works Board $6,800,000.00
Other Loan#1 $0.00
Other Loan#2 $0.00
Other Loan#3 $0.00
Other Loan#4 50.00
Total Loans $6,800,000.00
Loca/Revenue
Local Revenue#1 Tra�c Impact Fees $2,041,000.00
Locai Revenue#2 Unrestricted Street Revenue $150,000.00
LoCal Revenue#3 Traffic Impact Fees, Mitigation $3,846,628.00
Fees, REET
Local Revenue#4 $0.00
Total Loeal Revenue $6,037,628.00
Other Funds
Other Funds#1 FAST Partners $2,03D,D00.00
Other Funds#2 King County Wastewater $1,300,000.0�
Treatment Div.
Total Other Funds $3,330,000.00
TOTAL PROJECT
FUNDING $23,040,000.00
Cky of Aubum Page 25
PC12-951-012 9/22I2011 Construction Loan CoMract
• � . .
ATI'ACHMENT II: ATTORNEY'S CERTIFICATION
PUBLIC WORKS BOARD
CONSTRUCTION LOAN PROGRAM
City of Auburn
PC12-957-012
I,���eT^�-�- l , hereby certify:
I am an attorney at law admitted to practice in the State of Washington and the duly appointed
attomey of the City of Aubum (the Contractor); and
I have also examined any and all documents and records which are pertinent to the Contract.
induding 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 federel, state and local funds,to
contract with the State of Washington, and to receive and expend the funds invoNed to
accomplish the objectives set Torth in their application.
2. The Contractor is empowered to accept the Public Works Trust Fund financial assistance
and to provide for repayment of the�oan as set forth in the Contract.
3. There is currently no litigation in existence seeking to enjoin the commencement or
completion of the above-described public facilities project or to enjoin the Contractor from
repaying the 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 cantained in the Contract.
4. Assumption of this obligation would not exceed statutory and administrative rule debt
limi ions a ficable to the Contractor.
Y '�/ //
Si ure of A orney Date
4� . PiL
Name
2� W�w�� �� . h�/9- 9��d /
Address
City of Aubum Page 26
PC12-951-072 9/22/2011 Construdion Loan CoMrad
.M1�yT4T� P RECEIVED
� �
����a��°'nt OCT 1 7 2011 .
STATE OF WASHINGTON � �
DEPARTMENT OF COMMERCE a"'d"'�°'
w�uc a+�o«�
1011 �lum Street SE•PO Box 42525•Olympia,Washington 98504-2523• (360) 725-4000
October 13,2011 tO""`�COmmerce.wa.gov
Dennis Dowdy
City of Auburn
25 West Main Street
Auburn, WA 98001
RE: Dr'_ ' 6 o r PC 12-951-012
Dear Mr. Dennis Dowdy:
Enclosed is a fully executed convact for yo i ev
Number PC12-951-012.
This contract is for M Street SE Grade Separation. Please keep thisoriginal document with other
local records related to your project.
We are also enclosing instruction and A19 vouchers for requesting funds and will email the
electronic version, (if needed),foi your completion once fiinds are ready to be expended.
Please send A 19 invoices to: Denise Fry
Communiry Trade and Economic Development
Attn: Contracts Adminisbation Unit
P.O. Box 42525
Olympia, WA 98504-2525
I will be your pmject manager and look forward to working with you and your staff on this
project. If yoa have any qiiestions or:need additional information,please do not hesitate
to call me at (360) 725-2741 or email me atDenise.Fry@Commerce.wa.gov.
Sincerely,
. �� �- �-,
o�
Denise Fry
Conuacts Adminisuation Unit
Project Manager
Enclosures
�• �0
2012 PWTF CONSTRUCTION LOAN BORROWERS
IMPORTANT INFORMATION - MUST READ �
INSTRUCTIONS FOR COMPLETING VOUCHERS IN ORDER TO RECEIVE LOAN FUNDS!
General Information
The Loan Agreement describes the points at which your loan funds may be disbursed to you. This is referenced
in your loan agreement, Section 1.16 Reimbursement Procedures and Payment
• The BORROWER, using the Invoice Voucher template, initiates disbursements
• Funds will be disbursed on a reimbursemerrt-basis only. Expenses incurred after
Seotember 1. 2010. are eligible for reimbursement
• Dis6ursement requests must include documentation that supports evidence of wsts incurred.
Documentation may include bills or receipts from conVactors
• Each disbursement request may include costs incurred over an extended period
• The loan agreement places conditions on the loan disbursements
• Reimbursement requests may only be submitted once a moMh
Disbursements for construction activities are not allowed until documentation has been received by the
Co�tracts Administration Unit (CAU) indicating that the following conditions have been met:
• Proof of compliance with Govemor's Executive Order OS-05 or Section 106 of the National Historic
Preservation Act,as described in Sedion 1.9 of the executed 2012 PWTF Construction Loan contract,
and
• A signed Public Works Trust Fund Notice of Contract Award and Notice to Proceed, which follows the
formal award of a construction contract(a blank copy is attached), and
• A completed Project Status Report; and
• Other conditions as required. .
If you have any questions regarding these loan conditions, please contact your CAU Regional Project
Manager, Denise Fry at (360) 725-2741 or denise.fry@commerce.wa.gov
First Invoice Voucher and Subsequent Invoice Vouchers
1. Place the disbursement request amount on the appropriate line.
2. Include the Voucher number (1, 2, 3, etc.) in the blank space on the "Voucher Number" line.
3. Attach supporting documentation including a current Project Status Report.
Please make sure the conditions listed above have been met, otherwise the loan disbursement will be
delayed.
4. Sign the Voucher in the upper right hand comer(no black inkl and retum it to the following address:
Attn: Denise Fry
Contracts Administration Unit
Dept. of Commerce
PO Box 42525
Olympia WA 98504-2525
Please access the A19 Voucher excel template and the Project Status Report through the Public Works
Board loan database, PWeb, under your loan repository. It will be used for all subsequent disbursement
requests.
Staff will review your disbursement request upon receipt. You will receive funds within 30 days of the request.
WASHINGTON STATE
•� OEPARTMENTOFCOMMERCE
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Comoa Panort.
Pnane: (SIGN IN BLUE INK)
Emall:
Cenbut ParlaJ�
VOUCXERNUMBER: 1 IT�T�) IOniEI
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TOTALS 50.00 50.00 $0.00 56,800,000.00
POR COMMERCE USE ONLY
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Public Works Trust Fund
Notice of Contract Award and Notice to Proceed
Jurisdiction:
Contract Number:
Date Bid Solicitation Published: / /
Bidding Opening Date: / /
Number of Bids Received:
Date Contract Awarded: / / Contract Amount: $
Name of Contractor:
Notice to Proceed Issued:
Start of Construction Date: / /
Submitted by:
Signature
Name
Title
Address
City Zi pcode
Phone
' I Washington State
� � Public Works Board
Post Office Box 42525
�� Olympia,Washington 985042525
PROJECT STATUS REPORT
This form must be completed each time you submit a reimbursement request Reimbursement
requests will not be processed unless accompanied by a current Project Status Report.
Client Name: City of Auburn
Contract Number: PC12-951-012
Project Name: M Street SE Grade Sparation
Anticipated Project 10/11l2016
Com letion Date:
Please describe the progress you have made to date on your project's scope of work
see Attachment A in our contract .
Approximately, what percerrtage of the project is %
com le�?
When do you expect the project to be completed
month/da / ear ? —��—
If the anticipated completion date is different from the one above, what factors led to
the chan e in the com letion date?
Administrative services provided by the Department of Commerce
(360)725-3150 Fax (360)586-6440
�----��
Washington State
( � Public Works Board
` 1011 Plum Strzet SE
� � Post Orcce Box 425i4
( Olympia,Washin�ton 9850�3-2525
DATE: September 15,2011
SUBIECT: 2012 Public Works Trust Fund Construction Contract- Local Match
The 2012 Public Works Trust Fund Construction Contract changes the manner in which local match,the
"share"contributed by clients towards the total project cost, is addressed.
Section 1.9 Local Matchin¢Share and Eliaible Proiect Costs identifies a specific dollar amount, based on the
negotiated project hudget, as the Contractors local matching share.
This dollar amount is subjed to chonge during the contrad close out process.
The close out process occurs once the projed is finished and the time of performance has ended.
Status at time of oroiect close out(end of time of oerformancel
Non-distressed entities'local match minimum will be 5 percent of total eligible project costs.
Loral Match Fundine I�rterest Rate
5% 2%
10% 1%
15% 0.5%
The greater the local match,the lesser the interest rate.
LOAN TERMS Non-0istreued Distressed Severelv Distressed
Requlred Lowl Match Funding 5, 10,or 15% 0;6 0% �
-— - -— — - ---- - - ,---- -
Interest Ratel 0.50%,1%,or 2% 0.50% 0.25% I
-- -- ----^ --� - -- -
Construction Loan Cap per Biennium $10 million $10 million $10 million
Length of Construction LoanZ 20 years � 30 years 30 years _�
' For non-distressed communities,the loan rate is based on the local match:2%interest rate with minimum of 5%local match;
1%interest rate with minimum of 10%local match;and 0.5%interest rete with minimum of 15%lowl match.
Z The loan repayment period cannot exceed the life of the asset being construc[ed.
Economicallv distressed entities are defined as follows:
51%,or more, of the entities' population household income is at,or below 80%of the County Median
Household Income.
Severelv economicallv distressed entities are defined as follows:
519'0,or more,of the entities' population household income is at,or below 50%of the County Median
Household Income.
AdmiNStrauvc services provided by thc Washington Sta4 Dcpanmmt o(Commercc
(360)725-3150 Fax (360)586-&M140 � www.pwb.wa.gov
Page 2 of 2
There are four methods to qualify for distressed,or severely distressed, status:
1) US 2000 Census Data (http://censtats.census.gov/pub/Profiles.shtml)
2) Most recent income survey documented since US 2000 Census from federal infrestructure programs
(USDA,CDBG, RCAC, and DWSRF).
Survey must encompass the entire jurisdiction that meets the PWTF distressed criteria.
3) An income survey taken after US 2000 Census that meets the minimum criteria set forth in the PWTF
Income Survey instructions.
4) For county governments seeking distressed status under the PWTF criteria:
a)The statewide non-metropolitan average MHI may be applied (2000 Census @ $47,479.00).
b) Use the Washington State Office of Financial Management(OFM) Income Projection for the year of
application. Please visit http://www.ofm.wa.gov/economy/hhinc/default.asp.
For questions regarding these loan terms, please contact your Client Service Representative.
If your project qualifies for the incentives outlined in Section 1.11,then the following adjustments to either
the interest rate, or term, would apply:
Time of Performance Adiustment W Rate or Term
60 Months No changes
48 Months Decrease rate by or Increase term by
0.25�'0* — 24 months**
36 Months Decrease rete by o� Increase term by
0.503'0` — 60 months*'
' At no point in time shall the minimum loan interest rate be less than 0.25Yo.
'* The final loan term may not exceed the life of the asset.
Copies of this memo will be affixed to both the executed contrect you receive as well as the executed
contract retained by the Public Works Board.
Board staff will continue to work with the Contracts Administration Unit throughout the life of your projed
to ensure the highest qualiry standards of customer service are retained.
�—�
� Washington State
r � Pu_ blic IAlorks Board
� 1011 Plum SVeet SE
� PostOffice�Box42826
� Olympia,Washington 98604-2625
September 22, 2011
Dennis Dowdy
City of Auburn
25 West Main Street
Aubum, lNA 98001
RE: Public Works Trust Fund (PWTF) Construction Loan Contract: PC12-951-012
Dear Mr. Dowdy:
Enclosed are two originals of the Pubiic Works7rust Fund Construction Loan Contract PC12-951-012
between Giry of Aubum and the Public Works Board (Board). ThisContrad details the terms and cond'Rions
that will govem the"agreement between us, You will also find the projecPs Scope of Work and an Attomey's
Certificatiomas formal attachments to the contract.
Please review the terms and conditions of the Contract carefuily: We recommend consulting with your legal
advisor before accepting this loan offer.
When you have obtained the appropriate original signatures (do not use signature stamps), return both
original contractsand all the attachmentsto the Public Works Board offce within 60 calendar days of the
date of this lettec Failure to return the contracts within this timeline may result in the loan offer being
withdrawn.
After the Contracts have been signed by the Board, one fully executed original along with instructions for
drawing funds will be mailed to you. We encourage you to store these and all pertinent documents
associated with thisproject and loan offerin a file that is readily accessible to audRors fortheir periodic
review.
If you haven't already completed tHe required Historical and Cultural Resources Review for your project,
ptease refer to the instructions and EZ1 forrri attached for your convenience. If you have questions about
this Historical and Cultural Review process, please contact you�Client SerJices Representative.
We look forward to working with you over the course of your successful pubiic works project. If you have
any questions about this Contract, please contact me at(360) 725-3153 or at -
Ann.Gampbell@commerce.wa.gov.
Sincerely,
Ann E Campbell
Project, Policy, & Performance Coordinator
Enclosures
� � AdminisUative services proWded by the Washington State DepartrneM of Commer� �
(360)7253150 Fax (36D)586-8440 www.ovub.wa.aov
RECEIVED
DEC 0 5 2012
Department of Commerce
November 20, 2012
Dennis DowdN
Citti Of Auburn
25 West Main Street
Auburn. WA 95001
RE. Amendment to Loan Agreement/Contract PC:12-951-012
Dear Mr Dowd+
Attached is an amendment that the Public Works Board requests you to sign. The amendment was
needed due to a processing error where the loan term year as stated in one section of the contract does not
correspond with the date stated in another section. To avoid confusion later we've elected to formally
alter the completion date on the contract Face Sheet, and in Section 1 14 and Section 1 17 This
amendment does not affect the number of years you have to repay the loan or your payment amounts.
Many thanks for your assistance.
Sincerely,
Jeff Flinckle
PWl3 Staff
(360) 725-3060
,I c fl',h i n ck lcrii�com nrercc.++m.gu+
Enclosures
AMENDMENT FACE SHEET
Loan Number- PC12-951-012
Amendment Number- A
Washington State Department of Commerce
PUBLIC WORKS BOARD
Construction Loan Contract
1 Contractor 2. Contractor Doing Business As (optional)
City of Auburn N/A
25 West Main Street
Auburn. WA 98001 -.
3. Contractor Representative (only-if updated) 4.Public.Works Board Representative(only if updated)
N/A N/A
5. Original Contract Amount 6. Amendment 7 New Contract Amount
Amount
$6,800 000 00 N/A N/A
8. Amendment Funding Source 9. Amendment Start Date 10. Contract End Date
Federal: ❑ State: 21 Other, ❑ N/A. ❑ 'Amendment Execution Date June 1,•2041
11 Federal Funds (as applicable): Federal Agency- CFDA Number-
N/A N/A N/A
12. Amendment Purpose:
The purpose of this amendment is to correct a processing error that caused the contract completion dates to be
incorrectly displayed in the contract document.
The Board, defined as the Washington State Public Works Board, and Borrower/Contractor acknowledge and accept
the terms of this Agreement/Contract As Amended and attachments and have executed this Contract on the date below
to start as of this date of execution. The rights and obligations of both parties to this AgreementContract As Amended
are governed by this Agreement/Contract Amendment and the following other documents incorporated by reference:
Declarations Page, Amendment Terms and Conditions including all attachments. A copy of this Agreement/Contract
Amendment shall be attached to and made a part of the original Agreement/Contract between the Board and the
Borrower/Contractor Any reference in the original Contract to Agreement' or"Contract" shall mean the Agreement As
Amended" r act As Amended, respectively
FORTH BO CO FOR PUBLIC WORKS BOA RD
i
Signature J n LaRocque, Ex cutive Director
PtVe-c Lewis )Z �bl /'-
Print Name (� [[ Date
ma!�Inr 1 ,t� f(1 APPROVED AS TO FORM ONLY
Title Tr
1^ Z 1) This 18th Day of December, 2008
2mYJe� 3t oty�� Rob McKenna
Date Attorney General
Signature on File
Kathryn Wyatt
Assistant Attorney General
City of Auburn Page 1 Loan End Dale Amendment
PC12-951-012 11/20/2012 All Programs
AMENDMENT TERMS AND CONDITIONS
Washington State Department of Commerce
PUBLIC WORKS BOARD
Construction Loan Contract
Contractor/Borrower l it) of Auburn
Contract Number PC 12-951-012
Amendment Number A
The Public Works Board (or its successors), a department of the State of Washington, (hereafter referred to as
the "Board") and the Contractor, listed on the Face Sheet, agree to amend the declared.loan by modifying the
contract completion dates in the following sections to reflect the term and.completion date as set for below
Contract Face Sheet:
(Item 8: Contract End Date)
Contract End Date: June 1, 2041;
Part 1 Special Terms and Conditions:
1.14 Rate and Term of Loan
(2nd sentence modified to read as follows):
The term of the loan shall not exceed 30 years, with the final payment due June 1, 2041
1.17. Repayment
(2nd paragraph,'3rd sentence is modified to read as follows):
The final payment shall be on or before June 1, 2041 of an amount sufficient to bringjhe loan balance to
zero.
City of Auburn Page 2 Loan End Date Amendment
PC12-951-012 11/20/2012 All Programs
AMENDMENT DECLARATIONS
CLIENT INFORMATION
Legal Name Cih- of Auburn
Loan Number PC12-951-012
PROJECT IWORMATION
t
Title bl Street SP Gracie Separation
Project City Auburn
Project State Washinaton
Project Zip 98001
j
LOAN TERMS and CONDITIONS,
Loan Amount 6.800.000.00
Loan Term 30
Interest Rate 0.50
Loan Reimbursement
Date
Payment Month .tune 1
Time of Performance 60 months from Contract Execution to Project Completion date.
AMENDMENT DECLARATIONS (continued)
SCOPE OF WORK E
Loan Number PC12-9�1-012
Title M Street SP Grade Separation
Scope of Work The City- will renovate a railroad crossing to facilitate the flow ol'traffic
between SR 167 and SR 164 '[his project will improve traffic safety and
result in a reduced environmental impact. Costs may include. but are not
limited to. engineering. cultural and historical resources review encironmetttal
renew right-of-way acquisition. permits, public involvement. bid documents.
and construction that allow the Citv to meet local. state. and federal
regulations.