HomeMy WebLinkAbout5398 RESOLUTION NO. 5398
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, RELATED TO THE LEAD
SERVICE LINE REPLACEMENT PROGRAM;
AUTHORIZING AN APPLICATION FOR THE DRINKING
WATER STATE REVOLVING FUND LOAN AND, IF
APPROVED, ACCEPTANCE AND EXPENDITURE OF
LOAN PROCEEDS
WHEREAS, it is estimated the City water distribution system has between 500
and 1000 lead gooseneck service line connections in the City; and
WHEREAS, the Governor of the State of Washington issued a directive on May
2, 2016 to remove all lead service lines and lead components in drinking water systems
within 15 years; and
WHEREAS, the Drinking Water State Revolving Fund (DWSRF) makes funds
available to drinking water systems to pay for infrastructure improvements; and
WHEREAS, the infrastructure improvements funded by the DWSRF covers capital
improvements that increase public health and compliance with drinking water regulations;
and
WHEREAS,the City wishes to apply for a DWSRF loan to conduct removal of lead
service lines.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RESOLVES as follows:
Section 1. The Mayor is authorized to apply for a DWSRF loan for the lead
service line replacement program.
Resolution No. 5398
December 11, 2018
Page 1 of 2 Rev.2018
Section 2. If the City's application is approved, the Mayor is authorized to enter
into a DWSRF loan agreement with the State, and to enter into contracts as appropriate
to expend the loan proceeds for program purposes.
Section 3. The Mayor is authorized to implement those administrative
procedures necessary to carry out the directives of this legislation, including proposing
budget amendments if necessary to account for the loan proceeds.
Section 4. This Resolution will take effect and be in full force on passage and
signatures.
Dated and signed this \Z day of' ,2_c.�.„\ ,,,,_ , 2018.
CITY OF AUBURN
riff"
ANCY BACd , MAYOR
ATTEST: APP': E ;S TO FORM:
Shawn Campbell, MMC, City Clerk Steven L. Gross, City Attorney
Resolution No. 5398
December 11, 2018
Page 2 of 2 Rev.2018
September 18, 2019 Washington State Department of
W Health
En;nownerrtal Pa6lli Health
Susan Fenhaus Office ofthinAL,,x Miler
City of Auburn
25 West Main St
Auburn, WA 98001-4916
sfenhaus@auburnwa.gov
RE: Loan Contract Number: DWL24029
Dear Susan Fenhaus;
Enclosed is the Drinking Water State Revolving Fund Construction Loan Contract Number identified above for your
signature. The Loan Contract details the terms and conditions that will govern the agreement between us, which includes
the project's Scope of Work and an Attorney's Certification as formal attachments. Failure to return the contracts within 60
calendar days of the date of this letter may result in your loan offer being withdrawn.
Review, print and sign the document. Once signatures are obtained, scan and return by email to
dohcon.mgmt(a.doh.wa.gov or print and sign a hard copy, and return the originals to us for full execution.
Please note that the U.S. Environmental Protection Agency is the funding source for this program and the Catalog of
Federal Domestic Assistance(CFDA) number is 66.468. Consequently, the loan funds are federal and subject to both
state and federal requirements.
A non-refundable one-percent loan administration fee will be collected at contract execution (If applicable), including any
subsequent amendments where funds are added. The loan amount may be modified to include an amount sufficient to
cover the one-percent loan administration fee. In most cases, the fee will be collected in full at contract execution. Please
review the terms and conditions of the Loan Contract and all attachments carefully for details.
A requirement of the DWSRF program is that you must maintain updated project records and yearly renewal of your
registration in the System for Award Management at www.sam.gov.
Another requirement of the DWSRF program is that all entities are required to verify that the federal government has not
suspended or debarred them from receiving federal funds. This includes, but is not limited to, project contractors,
subcontractors, engineers, architects, consultants, and equipment vendors. The Exclusion Report can be accessed at
www.sam.gov. Failure to provide this required certification may result in termination of your loan contract.
After the Loan Contracts have been signed by the Department or its designee, one fully executed original will be returned
to you for your files. Instructions for drawing the loan funds will be returned to you with the executed Loan Contract, as
well as the necessary forms. The Loan Contract specifies that draws may be made for costs that have been incurred
within the contract period of performance, and which have supporting documentation such as receipts or bills.
We are looking forward to working with you over the course of this project. If you have any questions about this Loan
Contract, please contact me.
Sincerely,
Dennis Hewitt
DOH Contract Manager
360-236-3017
Dennis.Hewitt@doh.wa.gov
Enclosures:
ATTACHMENT I:SCOPE OF WORK(PROJECT)
ATTACHMENT II:ATTORNEY'S CERTIFICATION
ATTACHMENT III:FEDERAL AND STATE REQUIREMENTS
ATTACHMENT IV:DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS
ATTACHMENT V:CERTIFICATION REGARDING DEBARMENT,SUSPENSION,AND OTHER RESPONSIBILITY MATTERS
ATTACHMENT VI:DWSRF ELIGIBLE PROJECT COSTS
ATTACHMENT VII: LABOR STANDARD PROVISIONS FOR SUBRECIPIENTS THAT ARE GOVERNMENTAL ENTITIES
1. CONTRACT FACE SHEET
2018 Loan Number: DWL24029
Washington State Department of Health (DOH)
Drinking Water State Revolving Fund (DWSRF)
Municipal
1. Borrower 2. Borrower Doing Business As (optional)
City of Auburn
25 West Main St
Auburn, WA 98001-4916
3. Borrower Type 4. Borrower's Statutory Authority
Construction Loan
5. Borrower Contract Manager Information 6. DOH Contract Manager
Dennis Hewitt
Susan Fenhaus 253-804-5061 P.O. Box 47822 360-236-3017
sfenhaus@auburnwa.gov Olympia,WA 98504-7822 Janet.Cherry@doh.wa.gov
7. Project Name
Lead Service Line Replacement
8. Loan 9. Funding Source 10. Start Date 11. End Date
Amount: $3,030,000.00 Federal: '' State: ® DOE October 01, 2039
Loan Fee: $30,000.00 Other:®
Interest Rate: 1.75%
12. Federal Funding Agency Environmental Protection Agency
Catalogue of Federal Assistance(CFDA) Number 66.468
13. Borrower Tax ID# 14. SWV# 15. Borrower UBI# 16. Borrower DUNS#
0002069-00 171-000-010 032942575
17. Contract Purpose
DOH and the party identified above as Borrower, hereafter referred to as BORROWER, have entered into this
contract to fund the project identified above that furthers the goals and objectives of the DOH DWSRF Program.
The project will be done by the BORROWER as described in the scope of work and this contract. The rights and
obligations of the parties are governed by this contract and the following documents incorporated by reference:
General Terms and Conditions including Declarations; Attachment I: Scope of Work(Project); Attachment II
Attorney's Certification; Attachment III: Federal and State Requirements; Attachment IV: Disadvantaged Business
Enterprise Requirements; Attachment V: Certification Regarding Debarment, Suspension, and Other Responsibility
Matters; Attachment VI: DWSRF Eligible Project Costs; and Attachment VII: Labor Standard Provisions for
Subrecipients that are Governmental Entities. By the signature below, the parties acknowledge and accept the
terms of this contract.
FOR CONTRACTOR FOR DOH
SIGNATURE AND DATE SIGNATURE and DATE
NAME and TITLE NAME and TITLE
APPROVED AS TO FORM ONLY
Mark Calkins, AAG Signature on File
DWL24029—City of Auburn Page 1 of 28 DWSRF Loan Contract(Municipal)v1
2. TABLE OF CONTENTS
1. CONTRACT FACE SHEET
2. TABLE OF CONTENTS
3. DECLARATIONS
3.1. BORROWER INFORMATION
3.2. PROJECT INFORMATION (PROJECT)
3.3. CONTRACT COMMUNICATION
3.4. LOAN INFORMATION
3.5. FUNDING INFORMATION
3.6. SPECIAL TERMS AND CONDITIONS
4. GENERAL TERMS AND CONDITIONS
4.1. AUTHORITY
4.2. FULL AGREEMENT
4.3. ORDER OF PRECEDENCE
4.4. LOAN AMOUNT
4.5. LOAN FEE
4.6. LOAN TERM
4.7. INTEREST RATE
4.8. LOAN FORGIVENESS
4.9. RELEASE OF LOAN FUNDS AND REQUIRED DOCUMENTATION
4.10. TIME OF PERFORMANCE
4.11. PROJECT COMPLETION AMENDMENT AND THE PROJECT COMPLETION REPORT
4.12. LOAN PAYMENTS
4.13. LOAN DEFAULT
4.14. LOAN SECURITY
4.15. AMENDMENTS, MODIFICATIONS,ASSIGNMENTS AND WAIVERS
4.16. AMERICAN IRON AND STEEL
4.17. ATTORNEY'S FEES
4.18. BONUS AND COMMISSION PAYMENTS NOT ALLOWED
4.19. COMPLIANCE
4.20. DISPUTES
4.21. ELIGIBLE PROJECT COSTS
4.22. FALSE, INCORRECT, OR INCOMPLETE INFORMATION OR CLAIM
4.23. FINANCIAL AUDIT
4.24. GOVERNING LAW AND VENUE
4.25. HISTORICAL AND CULTURAL REQUIREMENTS
4.26. INDEMNIFICATION
4.27. INDUSTRIAL INSURANCE REQUIREMENTS
DWL24029—City of Auburn Page 2 of 28 DWSRF Loan Contract(Municipal)v1
4.28. LITIGATION
4.29. NONDISCRIMINATION
4.30. PREVAILING WAGE
4.31. PROCUREMENT
4.32. PROHIBITION STATEMENT
4.33. PROJECT SIGNS
4.34. PUBLICITY
4.35. RATES AND RESERVES
4.36. RECAPTURE
4.37. RECORDKEEPING AND ACCESS TO RECORDS
4.38. REGISTRATION WITH THE SYSTEM FOR AWARD MANAGEMENT(SAM)
4.39. SEVERABILITY
4.40. SUBCONTRACTING
4.41. SURVIVAL
4.42. TERMINATION FOR CAUSE
4.43. TERMINATION OR SUSPENSION FOR CONVENIENCE
4.44. TERMINATION PROCEDURES
4.45. WORK HOURS AND SAFETY STANDARDS
ATTACHMENT I SCOPE OF WORK(PROJECT)
ATTACHMENT II ATTORNEY'S CERTIFICATION
ATTACHMENT III FEDERAL AND STATE REQUIREMENTS
ATTACHMENT IV DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS
ATTACHMENT V CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS
ATTACHMENT VI DWSRF ELIGIBLE PROJECT COSTS
ATTACHMENT VII LABOR STANDARD PROVISIONS FOR SUBRECIPIENTS THAT ARE GOVERNMENTAL
ENTITIES
DWL24029—City of Auburn Page 3 of 28 DWSRF Loan Contract(Municipal)v1
3. DECLARATIONS
3.1. BORROWER INFORMATION
Legal Name: City of Auburn
Loan Number: DWL24029
Award Year: 2018
State Wide Vendor Number: 0002069-00
3.2. PROJECT INFORMATION (PROJECT)
Project Title: Lead Service Line Replacement
Project Location (City or County): Auburn
Project State: Washington
Project Zip Code: 98001
Project Scope of Work(PROJECT): Attachment I, attached hereto and incorporated by reference.
3.3. CONTRACT COMMUNICATION
Communications regarding Contract performance is delegated by each party to its Contract Manager. Either party may
change its Contract Manager by express notice to the other party. Either party may identify on an as needed basis an
alternate Contract Manager to serve during the stated temporary absence of its primary Contract Manager. Notices
between the parties regarding Contract performance must be provided by written communication to the other party's
Contract Manager. Written communication includes email but not voice mail. Notices are presumed received by the
other party's Contract Manager upon evidence of delivery between the hours of 8:00 am to 5:00 pm except for state
holidays and weekends.
3.4. LOAN INFORMATION
Loan Amount: $3,030,000.00
Loan Fee (Included in loan amount if applicable): $30,000.00
Principal Loan Forgiveness %: 0.00%
Loan Term: 20 years
Interest Rate: 1.75
Payment Month(s): October 1st Annually
Earliest Date for Construction Reimbursement: 12 months prior to contract execution
Time of Performance: 48 months from Contract start date (date of last signature)to
Project Completion date.
18 months from Contract start date (date of last signature)
Notice to Proceed:
3.5. FUNDING INFORMATION
Total Funds from BORROWER: To be determined
Source(s)of Funds from Borrower, with assigned amounts per source: To be determined
Total State Funds: To be determined
Total Amount of Federal Award (as applicable): To be determined
Total Amount of Loan: $3,030,000.00
Federal Award Date: To be determined
Federal Award ID#(FAIN): To be determined
Amount of Federal Funds Obligated by this Action: To be determined
3.6. SPECIAL TERMS AND CONDITIONS
NA
DWL24029—City of Auburn Page 4 of 28 DWSRF Loan Contract(Municipal)v1
4. GENERAL TERMS AND CONDITIONS
DRINKING WATER STATE REVOLVING FUND
(MUNICIPAL)
4.1. AUTHORITY
Acting under the authority of Section 1452 of the Safe Drinking Water Act(SDWA) Section 130, RCW 39.34, RCW
43.70.040, and RCW 70.119A.170 the Washington State Department of Health (DOH) has awarded BORROWER a
Drinking Water State Revolving Fund Loan (LOAN)for the project identified in the Declarations (PROJECT). Under
this CONTRACT, BORROWER is a sub-recipient of funds provided by the United States Environmental Protection
Agency(EPA), CFDA Number 66.468, Safe Drinking Water State Revolving Fund.
In some CONTRACT attachments, DOH is referred to as"Lender" and BORROWER is referred to as "Contractor."
4.2. FULL AGREEMENT
This CONTRACT contains the full agreement of the parties. No other understandings, oral or otherwise, regarding
the subject matter of this CONTRACT exists.
4.3. ORDER OF PRECEDENCE
In the event of an inconsistency in this CONTRACT, unless otherwise provided herein, the inconsistency shall be
resolved by giving precedence in the following order: The order of precedence for terms and conditions under
categories B and C is subject to the proviso that when a contract term or condition appears in more than one
contract document, the more specific contract term or condition shall control if the different contract provisions
cannot be harmonized.
A. Applicable local, state, and federal statutes and regulations
B. Contract amendments
C. The Contract(in this order)
Declarations and Special Terms and Conditions
General Terms and Conditions
Attachments I—VII
4.4. LOAN AMOUNT
DOH, using funds from the Drinking Water Assistance Account, will loan BORROWER a sum not to exceed the
amount shown as LOAN AMOUNT in the Declarations. The LOAN AMOUNT shall not exceed one hundred percent
(100%)of the actual eligible PROJECT costs.
4.5. LOAN FEE
If DOH assessed a LOAN FEE, it is shown in the Declarations as LOAN FEE and included in the total LOAN
AMOUNT. The fee(if applicable) is one percent(1%)of the loan request and will not be reduced, regardless of the
final LOAN AMOUNT at PROJECT completion. If the LOAN FEE applies and the total LOAN AMOUNT is
increased by amendment, DOH will assess an additional LOAN FEE equal to one percent(1%)of the additional
LOAN AMOUNT. LOAN FEES are non-refundable.
4.6. LOAN TERM
Unless changed by an amendment, the LOAN TERM will not exceed the period of time shown in the Declarations.
The repayment period for DOH subsidized loans is twenty-four(24) years from this CONTRACT's start date. The
repayment period for non-DOH subsidized loans is twenty(20) years from this CONTRACT's start date.
4.7. INTEREST RATE
The interest rate is stated in the Declarations. Interest is per annum on the outstanding principal balance and starts
to accrue from the date DOH releases LOAN FUNDS to BORROWER. If BORROWER completes the PROJECT
within twenty-four(24) months of the CONTRACT start date, DOH will reduce the LOAN INTEREST to one percent
DWL24029—City of Auburn Page 5 of 28 DWSRF Loan Contract(Municipal)v1
(1%) at PROJECT completion. The reduced interest rate will apply to the remaining payments beginning from the
date DOH approves the BORROWER's Project Completion Report.
4.8. LOAN FORGIVENESS
If the LOAN qualifies for LOAN Forgiveness, the percent of the LOAN balance that DOH will forgive at PROJECT
completion is stated in the Declarations. DOH calculates the amount forgiven when DOH approves the
BORROWER's Project Completion Report. The amount forgiven will be based on either the LOAN AMOUNT or
BORROWER's ELIGIBLE PROJECT COSTS, whichever is less, and accrued interest.
4.9. RELEASE OF LOAN FUNDS AND REQUIRED DOCUMENTATION
DOH will release LOAN funds to BORROWER to reimburse BORROWER for eligible PROJECT costs. To request
reimbursement, BORROWER must submit a signed and completed invoice using a form provided by DOH. The
invoice must reference the PROJECT activity performed, and include supporting documentation such as bills,
invoices, receipts, and documentation of compliance with CONTRACT requirements as requested by DOH. The
invoice must signed by an official of BORROWER with authority to bind BORROWER.
Invoices must also include a report of the progress made since the last invoice, and the PROJECT status to date.
DOH will not release funds until the PROJECT status report and documentation are approved by DOH. Approval
will not be unreasonably withheld or delayed. After approving the invoice, documentation, and PROJECT status
report, DOH will release funds to BORROWER within thirty(30)days, if BORROWER is not in alleged or actual
breach of CONTRACT.
DOH will withhold ten percent(10%) of LOAN funds until DOH confirms that BORROWER has successfully
completed all steps for PROJECT COMPLETION. The 10% holdback will be available to BORROWER as part of
the last LOAN disbursement.
4.10. TIME OF PERFORMANCE
BORROWER will begin the activities in the PROJECT within thirty(30)calendar days of the CONTRACT start date.
BORROWER will issue a `Notice to Proceed', after the formal award of a construction contract, within eighteen (18)
months of the CONTRACT start date.
BORROWER must reach PROJECT COMPLETION within the TIME OF PERFORMANCE. If there are extenuating
circumstances, BORROWER may request, in writing, at least ninety(90)calendar days prior to the PROJECT
COMPLETION that DOH extend the deadline for PROJECT COMPLETION. At its discretion, DOH may issue an
extension. DOH's decision is final and not subject to the dispute clause.
If BORROWER does not meet the requirements of this section, it is a breach of CONTRACT, and DOH may
terminate or suspend this CONTRACT.
4.11. PROJECT COMPLETION AMENDMENT AND THE PROJECT COMPLETION REPORT
The PROJECT Completion Amendment determines the final LOAN AMOUNT and LOAN TERM.When activities in
the PROJECT are complete, BORROWER will start the process for the PROJECT Completion Amendment by
sending DOH the PROJECT Completion Report. In the PROJECT Completion Report., BORROWER will provide
the following information to DOH:
A. A statement of the actual dollar amount spent, from all fund sources, to complete the PROJECT.
B. A statement that all ELIGIBLE PROJECT COSTS have been incurred. Costs are incurred when goods and
services are received and/or contracted work is performed.
C. Evidence showing BORROWER'S compliance with financial the audit requirements of this CONTRACT.
D. An invoice for the remaining ELIGIBLE PROJECT COSTS.
E. Documentation of BORROWER's compliance with National Historic Preservation Act, 54 USC Subtitle III.
DWL24029—City of Auburn Page 6 of 28 DWSRF Loan Contract(Municipal)vi
4.12. LOAN PAYMENTS
BORROWER must begin repaying the LOAN no later than one (1)year after the CONTRACT start date. Payments
are due on the first day of the month(s)shown as the PAYMENT MONTH(S) in the Declarations. The first payment
is only the interest accrued at that time. All other payments are principal and interest accrued up to the PAYMENT
MONTH(S).
BORROWER can repay in full the LOAN balance, including fees and repayment of LOAN FUNDS for ineligible project
costs(if any), at any time or make accelerated payments without penalty. The final payment must be on or before the
end of the LOAN TERM.
4.13. LOAN DEFAULT
DOH must receive BORROWER'S payment within thirty(30) calendar days of the due date. Late payments are
delinquent and assessed a monthly penalty on the first(1St)day past the due date. The penalty is one percent(1%)
of the late payment amount per month. Penalty and fees accrue interest at the rate stated as LOAN INTEREST in the
Declarations.
DOH may notify any other entity, creditors, or potential creditors of BORROWER's delinquency. BORROWER is
responsible for all attorney fees and costs incurred by DOH in any action taken to enforce its rights under this section,
including in any alternative dispute resolution proceeding.
4.14. LOAN SECURITY
LOAN Security is only required if identified in the Declarations. In its sole discretion and if allowed under the EPA
regulations relevant to this Contract, DOH may subordinate its LOAN security to Borrower's obligations under
existing or future bonds and notes. Nothing in this section releases BORROWER from the obligation to make LOAN
PAYMENTS when due, and to adjust rates, fees, or surcharges as necessary to meet its obligations under this
CONTRACT.
4.15. AMENDMENTS, MODIFICATIONS, ASSIGNMENTS, AND WAIVERS
Amendments, modifications, assignments, and waivers to any of the terms of this CONTRACT supersede, if
applicable, those terms as found in the original CONTRACT, and are not binding unless they are in writing and
signed by representatives authorized to bind each of the parties. Only the authorized representative or their
designee has the express, implied, or apparent authority to alter, amend, assign, modify, or waive any terms of this
CONTRACT.
Neither this CONTRACT nor any claim arising under it may be transferred or assigned by BORROWER without DOH's
prior written consent. During the LOAN TERM, DOH must approve in advance, any change in ownership of the
water system(s) improved with LOAN FUNDS. DOH may require the LOAN, including fees and ineligible project
costs (if any), be paid in full as a condition of approval.
Nothing in this CONTRACT may be waived unless approved by DOH in writing. No waiver of any default or breach is
implied from any failure to take action upon such default or breach if the default of breach persists or repeats.Waiver
of any default or breach is not a waiver of any subsequent default or breach.
4.16. AMERICAN IRON AND STEEL
None of the LOAN funds can be used for the construction, alteration, maintenance, or repair of a public water
system or treatment works unless all of the iron and steel products used are produced in the United States. "Iron
and steel products" means the following products made primarily of iron or steel: lined or unlined pipes and fittings,
manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves,
structural steel, reinforced precast concrete, and construction materials.
DOH may waive this requirement if:
A. Compliance would be inconsistent with the public interest; or
B. The particular iron and steel products are not produced in the United States in sufficient and reasonably
available quantities and are not of a satisfactory quality; or
DWL24029—City of Auburn Page 7 of 28 DWSRF Loan Contract(Municipal)v1
C. Inclusion of iron and steel products produced in the United States will increase the cost of the overall project by
more than twenty-five (25) percent; and
D. The waiver is approved by the Environmental Protection Agency(EPA).
BORROWER must submit the waiver request to DOH, which will submit it to EPA. The full text of the American Iron
and Steel requirements can be found in H.R. 3547, Consolidated Appropriations Act, 2014, P.L. 113-76, SEC. 436.
4.17. ATTORNEYS' FEES
Unless expressly stated under another section of the CONTRACT, each party agrees to bear its own attorneys'fees
and costs for litigation or other action brought to enforce the contract terms.
4.18. BONUS AND COMMISSION PAYMENTS NOT ALLOWED
Funds provided under this CONTRACT cannot be used to pay any bonus or commission to gain approval of the
loan application or any other approval under this CONTRACT. This section does not prohibit paying for bona fide
technical consultants, managerial, or other such services, if payment is for ELIGIBLE PROJECT COSTS.
4.19. COMPLIANCE
BORROWER will comply with all applicable federal, state and local laws, requirements, and ordinances for the
design, implementation, and administration of the PROJECT and this CONTRACT, including but not limited to those
stated in the CONTRACT attachments. BORROWER will provide DOH with documentation of compliance, if
requested.
In the event of BORROWER's alleged or actual noncompliance with any part of this CONTRACT, DOH may
suspend all or part of the CONTRACT, withhold payments, or prohibit BORROWER from incurring additional
obligations of LOAN FUNDS during the investigation and pending corrective action by BORROWER, or a decision
by DOH to terminate the CONTRACT.
4.20. DISPUTES
Except as otherwise provided in this CONTRACT, when a dispute arises between the parties that cannot be solved
by direct negotiation, either party may request a dispute hearing with the Director of the Office of Drinking Water
(the Director), who may designate a neutral person to decide the dispute. The parties will be equally responsible for
any reasonable costs and fees incurred by the neutral.
The party requesting a dispute hearing must:
A. Be in writing;
B. State the disputed issues;
C. State the relative positions of the parties;
D. State BORROWER's name, address, and the CONTRACT number;
E. Provide contact information for the requester's representative , and,
F. Be mailed to the other party's (respondent's) Contract Manager within three (3)working days after the parties
agree that they cannot resolve the dispute.
The respondent must send a written answer within five (5)working days.
In the alternative, the parties can agree to submit a mutual request to the Director, which should include each
party's response to the other party's characterization of the dispute.
The Director or designee will review the written statements and reply in writing to both parties within ten (10)
working days. The Director or designee may extend this period if necessary by notifying the parties. The decision on
the dispute is non-binding and is not admissible in any succeeding judicial or quasi-judicial proceeding.
This non-binding dispute process must precede any action in a judicial or quasi-judicial tribunal. Nothing in this
CONTRACT limits the parties from using any mutually acceptable alternate dispute resolution (ADR) method in
addition to or instead of the dispute hearing procedure outlined above.
DWL24029—City of Auburn Page 8 of 28 DWSRF Loan Contract(Municipal)v1
4.21. ELIGIBLE PROJECT COSTS
BORROWER will comply with Attachment VI: DWSRF Eligible Project Costs and is responsible for any audit
exceptions or disallowed costs incurred by its own organization or that of its subcontractors.
The purchase of any land necessary for the PROJECT must be included in the PROJECT and be documented with
an appraisal or equivalent market evaluation, if approved by DOH, and a valid purchase and sale agreement.
Construction expenses incurred after the date shown as earliest date for construction reimbursement in the
Declarations are eligible for reimbursement. Requests for reimbursements for costs related to construction activities
will not be accepted until BORROWER has met the following conditions:
A. Completed the State Environmental Review Process (SEPA Review under RCW 43.21C);
B. Complied with all provisions of the National Historic Preservation Act, 54 USC Subtitle III;
C. Complied with Prevailing Wage requirements;
D. Received approval from DOH of the project report and related construction documents for all applicable
activities described in the PROJECT; and
E. Complied with any other LOAN conditions required by DOH.
BORROWER cannot use LOAN FUNDS for any expenses charged by BORROWER against any other contract,
subcontract, or source of funds.
If DOH reimburses BORROWER for costs that are later determined by DOH to be ineligible, BORROWER must
repay these funds to DOH no later than when the BORROWER returns the PROJECT Completion Amendment to
DOH. Prior to final completion, DOH may withhold payment for such costs as allowed under Section 4.36
RECAPTURE. Repayment is subject to interest retroactive to the date of the applicable disbursement by DOH.
4.22. FALSE, INCORRECT, OR INCOMPLETE INFORMATION OR CLAIM
BORROWER warrants that they have not and will not submit to DOH any information that is materially false,
incorrect, or incomplete. Providing false, fictitious, or misleading information with respect to the receipt and
disbursements of LOAN funds is a basis for criminal, civil, or administrative fines and/or penalties. DOH may also
pursue applicable remedies for violations by BORROWER of this section.
4.23. FINANCIAL AUDIT
DOH may require BORROWER to obtain an audit of this PROJECT conforming to Generally Accepted Accounting
Principles (GAAP). BORROWER will maintain its records and accounts to facilitate the audit. BORROWER is
responsible for correcting any audit findings. BORROWER is responsible for any audit findings incurred by its own
organization and/or its subcontractors. DOH reserves the right to recover from BORROWER all disallowed costs
and INELEGIBLE PROJECT COSTS resulting from the audit.
The audit must include a report on compliance, including an opinion (or disclaimer of opinion)about whether the
BORROWER is in compliance with laws, regulations and requirements of this CONTRACT that could have a direct
and material effect on DOH.
BORROWER must send a copy of any required audit per 2 CFR§200.512 to the DOH Contract Manager, no later
than nine(9) months after the end of BORROWER's fiscal year(s). BORROWER must send any audit corrective
action plan for audit findings and a copy of the management letter, within three (3) months of the audit report.
4.24. GOVERNING LAW AND VENUE
This CONTRACT shall be construed and interpreted according to the laws of the state of Washington, and the
venue of any action brought under the CONTRACT will be in the Superior Court for Thurston County.
4.25. HISTORICAL AND CULTURAL REQUIREMENTS
BORROWER will not conduct or authorize destructive PROJECT planning activities before completing the
requirements of the National Historic Preservation Act, 54 USC Subtitle III. BORROWER will not begin construction
DWL24029—City of Auburn Page 9 of 28 DWSRF Loan Contract(Municipal)vi
activities, ground disturbance, or excavation of any sort, until BORROWER has complied with all requirements of
the National Historic Preservation Act of 1966, as amended.
If historical or cultural artifacts are discovered during the PROJECT, BORROWER will immediately stop
construction and implement reasonable measures to protect the discovery site from further disturbance, take
reasonable steps to ensure confidentiality of the discovery site, restrict access to the site, and notify the concerned
tribe's cultural staff or committee, Tribal Historical Preservation Officer(THPO), DOH Contract Manager, and the
State's Historical Preservation Officer(SHPO)at the Washington State Department of Archaeology and Historic
Preservation (DAHP). If human remains are uncovered, BORROWER will report the presence and location of the
remains to the local coroner and law enforcement immediately, then contact the concerned tribe's cultural staff or
committee, DOH Contract Manager, and DAHP.
BORROWER is legally and financially responsible for compliance with all laws, regulations, and agreements related
to the preservation of historical or cultural sites and artifacts and will hold harmless the state of Washington and
DOH in relation to any claim related to historical or cultural sites discovered, disturbed, or damaged as a result of
BORROWER'S and BORROWER's subcontractors activities.
BORROWER will include the requirements of this section in all contracts for work or services related to the
PROJECT. BORROWER will require that bid documents include an inadvertent discovery plan that meets the
requirements of this section.
4.26. INDEMNIFICATION
BORROWER agrees to defend, indemnify, and hold harmless DOH and the state of Washington for claims arising
out of or incident to BORROWER'S or any BORROWER'S subcontractor's performance or failure to perform the
CONTRACT. BORROWER'S obligation to indemnify, defend, and hold harmless DOH and the state of Washington
shall not be eliminated or reduced by any actual or alleged concurrent negligence of DOH or its agents, agencies,
employees and officials. BORROWER'S obligation to indemnify, defend and hold harmless DOH and the state of
Washington includes any claim by BORROWER'S agents, employees, officers, subcontractors or subcontractor
employees.
BORROWER waives immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold
harmless the state and its agencies, officers, agents or employees.
4.27. INDUSTRIAL INSURANCE COVERAGE
BORROWER will comply with the applicable parts of Title 51 RCW, Industrial Insurance. If BORROWER fails to
provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as required
by law, DOH may collect from BORROWER the full amount payable to the Industrial Insurance Accident Fund.
DOH may deduct the amount owed by BORROWER to the accident fund from the amount payable to BORROWER
by DOH under this CONTRACT, and transmit the deducted amount to the Washington State Department of Labor
and Industries (L&I).
4.28. LITIGATION
BORROWER warrants that there is no threatened or pending litigation, investigation, or legal action before any
court, arbitrator, or administrative agency that, if adversely determined against BORROWER, would have a
materially adverse effect on BORROWER's ability to repay the LOAN. BORROWER agrees to promptly notify DOH
if any above-referenced actions become known to BORROWER during the pendency of the Contract.
4.29. NONDISCRIMINATION
BORROWER will not discriminate on the basis of race, creed, color, national origin, families with children, sex,
marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any
sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a
disability in the performance of this CONTRACT. BORROWER will comply with all federal and state
nondiscrimination laws, including, but not limited to Chapter 49.60 RCW, Washington's Law Against Discrimination
and 42 USC 12101 et seq., the Americans with Disabilities Act(ADA), and 40 CFR Part 33 Participation by
Disadvantaged Business Enterprises in US EPA Programs . Failure by BORROWER to carry out these
requirements is a material breach of this CONTRACT. BORROWER is required to include these non-discriminatory
provisions in any contract with a subcontractor.
DWL24029—City of Auburn Page 10 of 28 DWSRF Loan Contract(Municipal)v1
4.30. PREVAILING WAGE
BORROWER will assure that all contractors and subcontractors performing work funded through this CONTRACT
comply with prevailing wage laws by paying the higher of state or federal prevailing wages. BORROWER is legally
and financially responsible for compliance with the prevailing wage requirements. BORROWER should consult the
United States Department of Labor and Washington State Department of Labor and Industries websites to determine
the federal and State prevailing wages that must be paid.
4.31. PROCUREMENT
BORROWER will comply with all procurement requirements for subcontracting for the PROJECT and for obtaining
PROJECT-related goods and services. BORROWER must maintain records to verify compliance with procurement
requirements.
BORROWER must ensure that all contractors, subcontractors, engineers, vendors, and any other entity for work or
services listed in the PROJECT will insert in full, in any contract, the labor standards provisions in Attachment VIII:
Labor Standard Provisions for Subrecipients That Are Governmental Entities.
4.32. PROHIBITION STATEMENT
Per Section 106 of the federal Trafficking Victims Protection Act, BORROWER 's contractors, subcontractors,
engineers, vendors, and any other entity performing work funded by this CONTRACT must comply with and include
the following terms and conditions in all contracts for work or services for the PROJECT.
"All forms of trafficking in persons, illegal sex trade, or forced labor practices are prohibited in the performance
of this award or subawards under the award, or in any manner during the period of time that the award is in
effect. This prohibition applies to you as the recipient, your employees, subrecipients under this award, and
subrecipients' employees."
4.33. PROJECT SIGNS
If BORROWER displays, during the TIME OF PERFORMANCE, any signs or markers identifying parties that are
providing funds for the PROJECT, BORROWER must include the Washington State Department of Health Drinking
Water State Revolving Fund and the Washington State Department of Health as participants in the PROJECT.
4.34. PUBLICITY
BORROWER agrees to get prior written consent from DOH's Contract Manager before publishing or using any
advertising or publicity materials that include Washington State or DOH's name, or includes language that may
reasonably infer or imply a connection with either one.
4.35. RATES AND RESERVES
BORROWER will maintain reserves at a minimum as required by the Water System Plan or Small Water System
Management Plan. BORROWER will timely adopt rate increases and/or capital assessments for the system's
services to provide sufficient funds, along with other revenues of the system, to pay all operating expenses and debt
repayments during the LOAN TERM.
4.36. RECAPTURE
DOH reserves the right to recapture from BORROWER sufficient funds to compensate DOH for BORROWER's
noncompliance with any part of this CONTRACT, in addition to any other remedies available under the
CONTRACT, at law, or in equity. DOH may withhold LOAN FUNDS from BORROWER to recapture such funds.
4.37. RECORDKEEPING AND ACCESS TO RECORDS
DOH, its agents, and authorized officials of the state and federal governments will have full access and the right to
examine, copy, excerpt, or transcribe, at no additional cost and at all reasonable times, any pertinent documents,
papers, records, and books of BORROWER and of persons, firms, or organizations with which BORROWER may
contract, involving transactions related to this CONTRACT. BORROWER agrees to keep complete records of its
compliance with this CONTRACT for a period of six(6)years from the date that the debt to DOH is paid in full. This
includes but is not limited to financial reports. If any litigation, claim or audit is started before the expiration of the
six(6)year period, BORROWER must keep the records until all litigation, claims or audit findings involving the
records have been resolved. These records retention requirements are in addition to the local government records
DWL24029—City of Auburn Page 11 of 28 DWSRF Loan Contract(Municipal)v1
retention schedules applicable to the BORROWER.
4.38. REGISTRATION WITH THE SYSTEM FOR AWARD MANAGEMENT(SAW
BORROWER must comply with 48 CFR 52.204-7 to register with the System for Awards Management(SAM.gov).
BORROWER is responsible for the accuracy and completeness of its data in the SAM database and any liability
resulting from the Government or DOH reliance on inaccurate or incomplete data in it. BORROWER must remain
registered in the SAM database. BORROWER should annually review its information in SAM to ensure it is
accurate and complete.
4.39. SEVERABILITY
If any part of this CONTRACT or part of any document incorporated by reference is found to be invalid, it will not
affect the other parts of this CONTRACT that can be given effect without the invalid part.
4.40. SUBCONTRACTING
Prior to awarding contracts and/or subcontracts, BORROWER must verify that the complete names of both the
selected contractor and the owner or president are not in the Federal Excluded Parties List System for Ineligible
Professionals and Debarred Contractors (www.SAM.gov). BORROWER must provide the DOH Contract Manager
with a screen printout documenting that neither the firm, the owner or the president are excluded.
BORROWER will ensure that every contract and subcontract awarded for the PROJECT after the CONTRACT start
date will bind the parties to follow all applicable terms of this CONTRACT. BORROWER is responsible to DOH for
noncompliance by its contractors and/or subcontractors. BORROWER's contracts or subcontracts do not release or
reduce the BORROWER's liability to DOH for any breach in the performance of BORROWER's duties.
BORROWER's contracts and subcontracts must include a term that the state of Washington and DOH are not liable
for claims or damages arising from a contractor and/or subcontractor's performance or lack thereof.
4.41. SURVIVAL
The CONTRACT's terms, conditions, and warranties that by its sense and context are intended to survive the
completion of the performance, cancellation or termination of this CONTRACT, shall so survive.
4.42. TERMINATION FOR CAUSE
If DOH concludes that BORROWER has failed to comply with the CONTRACT requirements or has otherwise
breached one or more parts of the CONTRACT, DOH may, at its discretion, upon notice to BORROWER, terminate
or suspend the CONTRACT and/or its attached agreements in whole or in part.
The notice will be in writing and state the reason(s)for termination or suspension, and the effective date. The
effective date will be determined by DOH. The notice will allow BORROWER at least thirty(30) business days to
cure the breach, if curable. If the breach is not cured or cannot be cured within thirty(30) business days, the
outstanding balance of the LOAN, with any interest accrued and other costs as authorized by the CONTRACT shall
be due and payable to DOH.
If DOH terminates this CONTRACT under this section, DOH is liable only for payment required under the terms of
this CONTRACT for ELIGIBLE PROJECT COSTS incurred prior to the effective date of termination.
At DOH's discretion, the termination for cause may be deemed a termination for convenience if DOH determines
that the default or failure to perform was outside BORROWER's control, fault or negligence. The rights and
remedies of DOH provided in this CONTRACT are not exclusive and are in addition to any other rights and
remedies provided by law. Nothing in this section affects BORROWER's obligations to immediately repay the
unpaid balance of the LOAN as prescribed in the Washington Administrative Code (WAC)246-296-150.
4.43. TERMINATION OR SUSPENSION FOR CONVENIENCE
If funding or appropriation from state, federal, or other sources is withdrawn, reduced, or limited in any way during
the TIME OF PERFORMANCE, DOH may:
DWL24029—City of Auburn Page 12 of 28 DWSRF Loan Contract(Municipal)v1
A. Delay or suspend releasing LOAN FUNDS until funding or appropriation are available to DOH; or
B. Amend the CONTRACT to reflect the new funding limitations and conditions; or
C. Terminate the CONTRACT and/or its attached agreements, in whole or in part; or
D. Suspend the CONTRACT and/or its attached agreements, in whole or in part.
If DOH terminates the CONTRACT and/or its attached agreements in whole or in part, under this section, DOH will
notify BORROWER's representative in writing of the reason(s)for termination, and the effective date. The effective
date will be determined by DOH.
DOH may choose to suspend this CONTRACT and/or its attached agreements in whole or in part, if DOH
determines that the funding insufficiency will likely be resolved in time for BORROWER to resume activities prior to
the end of the TIME OF PERFORMANCE. DOH will notify BORROWER's representative by facsimile or email of
the reason(s)for suspension, and the effective date. DOH will determine the effective date. BORROWER must
suspend performance on the effective date of the suspension. During the period of suspension each party must
notify the other party's representative of any conditions that may reasonably affect its ability to resume performance.
During the suspension, when DOH determines that the funding insufficiency is resolved, DOH may notify
BORROWER's representative of the proposed date to resume performance. BORROWER must respond to DOH's
representative in writing, within five(5) business days of DOH sending notice, as to whether it can resume
performance on that date or offer an alternative date to resume performance. If BORROWER cannot resume
performance or the alternative date is not acceptable to DOH, the parties agree the CONTRACT will be deemed
terminated for convenience, retroactive to the original date of suspension.
If DOH terminates or suspends this CONTRACT, DOH is liable only for payment required under the terms of this
CONTRACT for eligible project costs incurred prior to the effective date of suspension or termination. Nothing in
this section shall affect Contractor's obligations to repay the unpaid balance of the LOAN. Nothing in this section
affects BORROWER's obligation to repay the LOAN, including fees and other expenses as allowed by the
CONTRACT.
4.44. TERMINATION PROCEDURES
When BORROWER receives Notice of Termination or on the date a suspension is converted to a termination,
except as otherwise directed by DOH, BORROWER will:
A. Stop work under the CONTRACT on the date, and to the extent specified, in the notice;
B. Place no further orders or subcontracts for materials, services, or facilities related to the CONTRACT;
C. If expressly requested by DOH, assign to DOH any or all of the rights, title, and interest of BORROWER under
the orders and subcontracts so terminated, in which case DOH has the right, at its discretion, to settle or pay
any or all claims arising out of the termination of such orders and subcontracts. Any attempt by BORROWER
to settle such claims must have the prior written approval of DOH; and
D. Preserve and transfer any materials, CONTRACT deliverables and/or DOH property in BORROWER's
possession as directed by DOH.
Upon termination of this CONTRACT, DOH will pay BORROWER for amounts due under the CONTRACT prior to
the date of termination unless such payment is precluded under any other provision of this CONTRACT. DOH may
withhold any amount due as DOH reasonably determines is necessary to protect DOH against potential loss or
liability resulting from the termination. DOH will pay any withheld amount to BORROWER if DOH later determines
that loss or liability will not occur.
4.45. WORK HOURS AND SAFETY STANDARDS
If this CONTRACT exceeds$100,000, BORROWER must comply with the applicable Contract Work Hours and
Safety Standards Act(40 USC Chapter 37). These requirements do not apply to the purchases of supplies or
materials or articles ordinarily available on the open market, or contracts for transportation or transmission of
intelligence.
DWL24029—City of Auburn Page 13 of 28 DWSRF Loan Contract(Municipal)v1
ATTACHMENT I: SCOPE OF WORK (PROJECT)
Scope of Work:
Project to include:
1. Removal and replacement of approximately 275 lead goosenecks. Costs to include: locating lead goosenecks,
removal/disposal of lead goosenecks, pipe, water main replacement within 500 feet of any replaced lead
gooseneck, service line and meter replacement within 500 feet of any replaced lead gooseneck, valves, backfill,
bedding, surface restoration, traffic control, and other appurtenances.
In addition to costs of construction, costs may include(but are not limited to): engineering, design, construction
inspection, cultural and environmental review, permits, public involvement, preparation of bid documents, fees, taxes,
legal, administrative, audit, right-of-way, easements, and land acquisition.
Project Cost by Cost Category:
COST CATEGORY CURRENT ESTIMATES
,Engineering Report(Preliminary Engineering) $10,000
Environmental Review $1,000
Historical Review/Cultural Review $6,000
Land/ROW Acquisition
Permits
Public Involvement/Information $1,000
Bid Documents(Design Engineering) $340,000
Construction: Estimated Cost. Provide details on following pages. $2,110,000
DOH Review/Approval Fees: $2,000
$211,000
Contingency: (10% min, 20% max)
Sales or Use Taxes $211,000
Construction Engineering/Inspection $105,000
Insurance:
Audit: $3,000
Legal:
Service Meters(Purchase and Installation)
Other:
TOTAL ESTIMATED PROJECT COSTS (before Loan Fee) $3,000,000
DWSRF Loan Origination Fee(1%) $30,000
DW F Loan Award $3,030,000
DWL24029—City of Auburn Page 14 of 28 Attachment I: Scope of Work
DWSRF Loan Contract(Municipal)
ATTACHMENT II: ATTORNEY'S CERTIFICATION
DRINKING WATER STATE REVOLVING FUND
(MUNICIPAL)
I, r 1. ' GrczkS-5-
, hereby certify:
I am an attorney at law admitted to practice in the state of Washington and the duly appointed attorney of BORROWER
identified in the Declarations of the Contract identified above; and
I have also examined any and all documents and records, which are pertinent to the Contract, including the application
requesting this financial assistance.
Based on the foregoing, it is my opinion that:
1. BORROWER 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 its application.
2. BORROWER is empowered to accept the Drinking Water State Revolving Fund financial assistance and to
provide for repayment of the loan as set forth in the loan agreement.
3. There is currently no litigation in existence seeking to enjoin the commencement or completion of the above-
described public facilities project or to enjoin BORROWER from repaying the Drinking Water State Revolving
Fund loan extended by DOH with respect to such project. BORROWER 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. sumption of this obligation would not exceed statutory and administrative rule debt limitations applicable to
'•��: -OWER.
47 \\.--\\
Signature of Attorney Date
-,. . L65%
Name and BAR Number(WSBA No.)
Address
DWL24029—City of Auburn Page 15 of 28 Attachment I: Scope of Work
DWSRF Loan Contract(Municipal)
ATTACHMENT III: FEDERAL AND STATE REQUIREMENTS
(NOT ALL INCLUSIVE)
1) Environmental and Cultural Authorities
a) Archeological and Historic Preservation Act of 1974, Public Law 86-523 as amended
b) Clean Air Act, Public Law 84-159 as amended
c) Coastal Zone Management Act, Public Law 92-583 as amended
d) Endangered Species Act, Public Law 93-205 as amended
e) Environmental Justice, Executive Order 12898
f) Floodplain Management, Executive Order 11988 as amended by Executive Order 12148
g) Protection of Wetlands, Executive Order 11990
h) Farmland Protection Policy Act, Public Law 97-98
i) Fish and Wildlife Coordination Act, Public Law 85-624 as amended
j) National Historic Preservation Act, 54 USC Subtitle III
k) Safe Drinking Water Act, Public Law 93-523 as amended
I) Wild and Scenic Rivers Act, Public Law 90-542 as amended
m) Washington State Environmental Policy Act, Chapter 43.21C RCW
n) Native American Graves Protection and Repatriation Act, Archaeological Resources Protection Act, Revised Code
of Washington(RCW)27.44 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and
Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and Washington
Administrative Code(WAC)25-48 regarding Archaeological Excavation and Removal Permits.
2) Economic and Miscellaneous Authorities
a) Demonstration Cities and Metropolitan Development Act of 1996, Public Law 89-754 as amended, Executive
Order 12372
b) Procurement Prohibitions under Section 306 of the Clean air Act and Section 508 of the Clean Water Act,
including Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Ac
with Respect to Federal Contracts, Grants, or Loans
c) Uniform Relocation and Real Property Policies Act, Public Law 91-646 as amended
d) Debarment and Suspension, Executive Order 12549
e) H.R. 3547, Consolidated Appropriations Act, 2014.
3) Social Policy Authorities
a) Age Discrimination Act of 1975, Public Law 94-135
b) Title VI of the Civil Rights Act of 1964, Public Law 88-352
c) Section 13 of the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500 (the Clean Water
Act)
d) Section 504 of the Rehabilitation Act of 1973, Public Law 93-112 (including Executive Orders 11914 and 11250)
e) Equal Employment Opportunity, Executive Order 11246
f) Disadvantaged Business Enterprise, Public Law 101-549 (the Clean Air Act), and Public Law 102-389 (the Clean
Water Act)
g) Section 129 of the Small Business Administration Reauthorization and Amendment Act of 1988, Public Law 100-
590
h) Chapter 49.60 RCW,Washington's Law against Discrimination, and 42 USC 12101 et seq. the Americans with
Disabilities Act(ADA).
i) The Contract Work Hours and Safety Standards Act(40 USC 327-333)-Where applicable.
j) The Genetic Information Nondiscrimination Act of 2008(GINA), 42 USC s. 2000ff et seq.
4) State Laws
a) Chapter 36.70A RCW, Growth Management Act
b) Chapter 39.80 RCW, Contracts for Architectural and Engineering Services
c) Chapter 39.12 RCW,Washington State Public Works Act
d) Chapter 43.20 RCW, State Department of Health of Health
e) Chapter 43.70 RCW, Department of Health
f) Chapter 43.155 RCW, Public Works Project
g) Chapter 70.116 RCW, Public Water Systems Coordination Act of 1977
h) Chapter 70.119 RCW, Public Water Supply Systems Certification and Regulation of Operations
i) Chapter 70.119A RCW, Public Water Systems, Penalties &Compliances
j) Chapter 246-290 WAC, Group A Public Water Systems
DWL24029—City of Auburn Page 16 of 28 Attachment Ill: Federal and State Requirements
DWSRF Loan Contract(Municipal)v1
k) Chapter 246-291 WAC, Group B Public Water Systems
I) Chapter 246-292 WAC,Waterworks Operator Certification Regulations
m) Chapter 246-293 WAC,Water Systems Coordination Act
n) Chapter 246-294 WAC, Drinking Water Operating Permits
o) Chapter 246-295 WAC, Satellite System Management Agencies
p) Chapter 246-296 WAC Drinking Water State Revolving Fund Loan Program
q) Chapter 173-160 WAC, Minimum Standards for Construction &Maintenance of Wells
r) Title 173 WAC, Department of Ecology Rules
s) Title 40 Part 141 Code of Federal Regulations, Federal National Primary Drinking Water Regulations (Section
Adopted by Reference)
DWL24029—City of Auburn Page 17 of 28 Attachment Ill: Federal and State Requirements
DWSRF Loan Contract(Municipal)v1
ATTACHMENT IV: DISADVANTAGED BUSINESS ENTERPRISE
REQUIREMENTS
GENERAL COMPLIANCE, 40 CFR, Part 33
BORROWER must comply with the requirements of Environmental Protection Agency's Program for Utilization of Small,
Minority and Women's Business Enterprises (MBE/WBE) in procurement under this Contract, contained in 40 CFR, Part
33. BORROWER will use the directory of certified firms available through the Washington State Office of Minority and
Women's Business Enterprises to meet the requirements.
FAIR SHARE OBJECTIVES, 40 CFR, Part 33, Subpart D
The following are exemptions from the fair share objective Requirements:
• Grant and loan recipients receiving a total of$250K or less in EPA financial assistance in a given fiscal year.
• Tribal recipients of Performance Partnership Eligible grants under 40 CFR Part 35, Subpart B.
o There is a 3-year phase in period for the requirement to negotiate fair share goals for Tribal and Insular
Area recipients.
• Recipients of Technical Assistance Grants.
The Fair Share Objectives or goals for the utilization of disadvantaged businesses negotiated with EPA by the WA Office
of Minority Women Business are stated below.
Construction 10% MBE 6%WBE
Supplies 8% MBE 4%WBE
Equipment 8% MBE 4%WBE
Purchased Services 10% MBE 4%WBE
BORROWER must accept the fair share objectives/goals stated above and purchase the same or similar construction,
supplies, services and equipment, in the same or similar relevant geographic buying market as WA Office of Minority
Women Business goals.
SIX GOOD FAITH EFFORTS, 40 CFR, Part 33, Subpart C
Pursuant to 40 CFR, Section 33.301, BORROWER will make the following good faith efforts whenever procuring
construction, equipment, services and supplies under an EPA financial assistance agreement, and to ensure that sub-
recipients, loan recipients, and prime contractors also comply.
Records documenting compliance with the six good faith efforts shall be retained. The six good faith efforts shall include:
A. Ensure Disadvantaged Business Enterprises are made aware of contracting opportunities to the fullest extent
practicable through outreach and recruitment activities. For Indian Tribal, State and Local Government recipients,
this will include placing the Disadvantaged Business Enterprises on solicitation lists and soliciting them whenever
they are potential sources.
B. Make information on forthcoming opportunities available to Disadvantaged Business Enterprises and arrange time
frames for contracts and establish delivery schedules, where the requirements permit, in a way that encourages
and facilitates participation by Disadvantaged Business Enterprises in the competitive process. This includes,
whenever possible, posting solicitations for bids or proposals for a minimum of thirty(30)calendar days before the
bid or proposal closing date.
C. Consider in the contracting process whether firms competing for large contracts could subcontract with
Disadvantaged Business Enterprises. For Indian Tribal, State and Local Government recipients, this will include
dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum
participation by Disadvantaged Business Enterprises in the competitive process.
D. Encourage contracting with a consortium of Disadvantaged Business Enterprises when a contract is too large for
one of these firms to handle individually.
E. Use the services and assistance of the Small Business Administration and the Minority Business Development
Agency of the Department of Health.
F. If the prime contractor awards subcontracts, also require the prime contractor to take the five good faith efforts in
paragraphs A through E above.
DWL24029—City of Auburn Page 18 of 28 Attachment IV: DBE Requirements
DWSRF Loan Contract(Municipal)v1
MBE/WBE REPORTING,40 CFR, Part 33, Sections 33.502 and 33.503
BORROWER is required to submit MBE/WBE participation reports to DOH, on a quarterly basis, beginning with the
Federal fiscal year reporting period BORROWER receives the award and continuing until the project is completed.
CONTRACT ADMINISTRATION PROVISIONS, 40 CFR, Section 33.302
BORROWER agrees to comply with the contract administration provisions of 40 CFR, Section 33.302.
BORROWER agrees to require all general contractors to provide forms: EPA Form 6100-2 DBE Subcontractor
Participation Form and EPA Form 6100-3 DBE Subcontractor Performance Form to all its Disadvantaged Business
Enterprise subcontractors, engineers, vendors, and any other entity for work or services listed in the PROJECT_These
two (2)forms may be obtained from the EPA Office of Small Business Program's website on the internet at
http://www.epa.dov/osbp/drants.htm.
BORROWER agrees to require all general contractors to complete and submit to BORROWER and Environmental
Protection Agency EPA Form 6100-4 DBE Subcontractor Utilization Form beginning with the Federal fiscal year reporting
period BORROWER receives the award and continuing until the project is completed. Only procurements with certified
MBE/WBEs are counted toward a Contractor's MBE/WBE accomplishments.
BIDDERS LIST, 40 CFR, Section 33.501(b)and (c)
BORROWER is also required to create and maintain a bidders list if BORROWER of the loan is subject to, or chooses to
follow, competitive bidding requirements. Please see 40 CFR, Section 33.501 (b)and (c)for specific requirements and
exemptions.
Section 33.501(b)of the rule is as follows:
A recipient of a Continuing Environmental Program Grant or other annual grant must create and maintain a bidders list. In
addition, a recipient of an EPA financial assistance agreement to capitalize a revolving loan fund also must require entities
receiving identified loans to create and maintain a bidders list if the recipient of the loan is subject to, or chooses to follow,
competitive bidding requirements.The purpose of a bidders list is to provide the recipient and entities receiving identified
loans who conduct competitive bidding with as accurate a database as possible about the universe of MBE/WBE and non-
MBE/WBE prime and subcontractors. The list must include all firms that bid or quote on prime contracts or bid or quote on
subcontracts under EPA assisted projects, including both MBE/WBEs.
The bidders list must be kept until the grant project period has expired and the recipient is no longer receiving EPA
funding under the grant. For entities receiving identified loans, the bidders list must be kept until the project period for the
identified loan has ended. The following information must be obtained from all prime and subcontractors:
(1) Entity's name with point of contact;
(2) Entity's mailing address, telephone number, and e-mail address;
(3)The procurement on which the entity bid or quoted, and when; and
(4) Entity's status as a MBE/WBE1 or non-MBE/WBE.
The exemption found at§33.501(c) is as follows:
A recipient of an EPA financial assistance agreement in the amount of$250,000 or less for any single assistance
agreement, or of more than one financial assistance agreement with a combined total of$250,000 or less in any one fiscal
year, is exempt from the paragraph (b)of this section requirement to create and maintain a bidders list. Also, a recipient
under the CWSRF, DWSRF, or BCRLF Program is not required to apply the paragraph (b)of this section bidders list
requirement of this subpart to an entity receiving an identified loan in an amount of$250,000 or less, or to an entity
receiving more than one identified loan with a combined total of$250,000 or less in any one fiscal year. This exemption is
limited to the paragraph (b)of this section bidders list requirements of this subpart.
Qualified Women and Minority business enterprises may be found on the Internet at www.omwbe.wa.gov or by contacting the Washington State Office
of Minority and Women's Enterprises at 360-704-1181.
DWL24029—City of Auburn Page 19 of 28 Attachment IV: DBE Requirements
DWSRF Loan Contract(Municipal)v1
ATTACHMENT V: CERTIFICATION REGARDING
DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY
MATTERS
sEpA United States
Environmental Protection Agency
United States Environmental Protection Agency
Washington,DC 20460
EPA Project Control Number
The terms, "covered transaction, debarred, suspended, ineligible, lower tier covered transaction, person, primary covered
transaction, principal, and voluntarily excluded", as used in this attachment, are defined in the rules implementing
Executive Order 12549, including 13 CFR§400.109. You may contact DOH for help getting a copy of these regulations.
BORROWER, defined as the primary participant and it principals, certifies by signing below that to the best of its
knowledge and belief they:
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
covered transactions by any Federal department or agency;
B. Have not within a three-year(3) period preceding this CONTRACT, been convicted of or had a civil judgment
against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or
performing a public (federal, state, or local)transaction or contract under a public transaction; violation of Federal
or State antitrust statutes or embezzlement, theft, forgery, bribery, falsification or destruction of records, making
false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice;
C. Are not presently indicted for or otherwise criminally or civilly charged by a government entity(federal, state, or
local)with commission of any of the offenses described in this attachment; and,
D. Have not within a three-year period (3) preceding the signing of this CONTRACT had one or more public
transactions (federal, state, or local)terminated for cause or default.
Prior to awarding contracts for the PROJECT, BORROWER must verify that neither the contractor's business name(s) nor
the names of its principals are in the Federal Excluded Parties List System for Ineligible Professionals and Debarred
Contractors (www.SAM.gov). BORROWER must keep documentation in the PROJECT files and provide a copy to the
DOH Contract Manager.
BORROWER will include the language below without modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions:
The lower tier contractor certifies, by signing this CONTRACT that neither it nor its principals are
debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency.
I understand that a false statement on this certification may be ground for rejection of this proposal or termination of the
award. In addition, under 18 USC Sec. 1001, a false statement may result in a fine or imprisonment for up to 5 years, or
both.
Typed or Printed Name &Title of Authorized Representative
of Ib,z sl q
Si ture of rized Representative Date
I am unable to certify to the above statements. My explanation is attached.
DWL24029—City of Auburn Page 20 of 28 Attachment V: Certification Regarding Debarment
DWSRF Loan Contract(Municipal)v1
ATTACHMENT VI: DWSRF ELIGIBLE PROJECT COSTS
Must be directly attributable to the project. computation of predetermined percentage rates
1. The costs for complying with the Uniform Relocation to be applied to current labor costs must be
Assistance and Real Property Acquisition Policies based on the average of total employee benefits
Act of 1970. and total labor costs for the prior fiscal year and
2. DWSRF loan fees. adjusted by known current year variations.
3. The purchase of a portion of another system's c. Other than work identified in Number 9.a, no
capacity, if it is the most cost effective solution costs associated with labor performed by the
(limited to publicly owned(municipal)systems). borrower's employees, including force account
work, are eligible for financing assistance.
4. Construction of reservoirs(clear wells)that are part 10. Contract engineering, planning, design, legal, and
of the treatment process and are collocated with the financial planning services. The Department of
treatment facility. Health reserves the right to declare ineligible legal
5. Construction of distribution reservoirs(finished costs that are unreasonable and disproportionate to
water). the project.
6. Cost associated with restructuring or consolidation of 11. Contract construction work.
existing water systems by publicly owned water 12. Direct vehicle and equipment charges at the actual
systems. rental cost paid for the equipment or, in the case of
7. Main extensions to connect to safe and reliable city or county-owned equipment, at the rental rates
sources of drinking water. established by the local government's"equipment
8. Cost associated with collecting and preparing rental and revolving fund"following the methods
environmental assessment documents to obtain local prescribed by the division of municipal corporations.
permits. However, such costs must be charged on a uniform
9. Direct labor including related employee benefits: basis to equipment used for all projects regardless of
the source of funding. Cities with a population of
a. Salaries and wages(at actual or average rates) eight thousand or less not using this type of fund are
covering productive labor hours of employees of allowed the same rates as used by the State
the borrower(excluding the administrative Department of Transportation.
organization of the operating unit involved)for
periods of time actively or incidentally engaged 13. Direct materials and supplies.
in pre-design engineering, design engineering, 14. Other direct costs incurred for materials or services
construction engineering, acquisition of rights of acquired for a specific project are eligible costs and
way, and the cleaning, sterilization or may include, but are not limited to such items as:
bacteriological testing of water system a. Telephone charges.
components prior to public use. The costs of b. Reproduction and photogrammetry costs.
services rendered by employees generally c. Video and photography for project
classified as administration/project management documentation.
of the loan are considered a direct cost only d. Computer usage.
when such employees are assigned the types of e. Printing and advertising.
services described above and shall be limited to 15. Other project related costs include:
3% or less of the project loan amount.
•
b. Employee benefits relating to labor are Competitive Bidding.
•
considered a direct cost of construction projects. Audit.
The following items may be included as • Insurance.
employee benefits: • Prevailing wages.
F.I.C.A. (Social Security)—employer's share. •
Attorney fees.
• • Environmental Review.
• Retirement benefits. • Archaeological Survey.
• Hospital, health, dental, and other welfare insurance. Water system plan costs are not eligible for
• Life insurance. reimbursement. Small water system management
• Industrial and medical insurance. program and plan amendments costs are eligible for
• Vacation. reimbursement.
• Holiday. Projects may be designed to accommodate reasonable
• Sick leave. growth. This is generally the 20-year projection included
• Military leave and jury duty. in the system's water system plan or small water system
Employee benefits must be calculated as a management program.
percentage of direct labor dollars.The
DWL24029—City of Auburn Page 21 of 28 Attachment VI: DWSRF Eligible Project Costs
DWSRF Loan Contract(Municipal)v1
ATTACHMENT VII: LABOR STANDARD PROVISIONS FOR
SUBRECIPIENTS THAT ARE GOVERNMENTAL ENTITIES
Wage Rate Requirements Under The Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6)
Preamble
With respect to the Clean Water and Safe Drinking Water State Revolving Funds, EPA provides capitalization grants to
each state which in turn provides subgrants or loans to eligible entities within the state. Typically, the subrecipients are
municipal or other local governmental entities that manage the funds. For these types of recipients, the provisions set
forth under Roman Numeral I, below, shall apply. Although EPA and the State remain responsible for ensuring
subrecipients' compliance with the wage rate requirements set forth herein, those subrecipients shall have the primary
responsibility to maintain payroll records as described in Section 3(ii)(A), below and for compliance as described in
Section 1-5.
Occasionally, the subrecipient may be a private for profit or not for profit entity. For these types of recipients, the
provisions set forth in Roman Numeral II, below, shall apply. Although EPA and the State remain responsible for ensuring
subrecipients' compliance with the wage rate requirements set forth herein, those subrecipients shall have the primary
responsibility to maintain payroll records as described in Section II-3(ii)(A), below and for compliance as described in
Section 11-5.
I. Requirements Under The Consolidated and Further Continuing Appropriations Act, 2013(P.L. 113-6)
For Subrecipients That Are Governmental Entities:
The following terms and conditions specify how recipients will assist EPA in meeting its Davis-Bacon (DB) responsibilities
when DB applies to EPA awards of financial assistance under the FY 2013 Continuing Resolution with respect to State
recipients and subrecipients that are governmental entities. If a subrecipient has questions regarding when DB applies,
obtaining the correct DB wage determinations, DB provisions, or compliance monitoring, it may contact Department of
Health. If a State recipient needs guidance, they may obtain additional guidance from DOL's web site at
http://www.dol.qov/whd/.
1. Applicability of the Davis- Bacon (DB) prevailing wage requirements.
Under the FY 2013 Continuing Resolution, DB prevailing wage requirements apply to the construction, alteration, and
repair of treatment works carried out in whole or in part with assistance made available by a State water pollution control
revolving fund and to any construction project carried out in whole or in part by assistance made available by a drinking
water treatment revolving loan fund. If a subrecipient encounters a unique situation at a site that presents uncertainties
regarding DB applicability, the subrecipient must discuss the situation with the recipient State before authorizing work on
that site.
2. Obtaining Wage Determinations.
(a) Subrecipients shall obtain the wage determination for the locality in which a covered activity subject to DB will take
place prior to issuing requests for bids, proposals, quotes or other methods for soliciting contracts (solicitation)for
activities subject to DB. These wage determinations shall be incorporated into solicitations and any subsequent contracts.
Prime contracts must contain a provision requiring that subcontractors follow the wage determination incorporated into the
prime contract.
(i) While the solicitation remains open, the subrecipient shall monitor www.wdol.qov weekly to ensure that the
wage determination contained in the solicitation remains current. The subrecipients shall amend the
solicitation if DOL issues a modification more than 10 days prior to the closing date (i.e. bid opening)for the
solicitation. If DOL modifies or supersedes the applicable wage determination less than 10 days prior to the
closing date, the subrecipients may request a finding from the State recipient that there is not a reasonable
time to notify interested contractors of the modification of the wage determination. The State recipient will
provide a report of its findings to the subrecipient.
(ii) If the subrecipient does not award the contract within 90 days of the closure of the solicitation, any
modifications or supersedes DOL makes to the wage determination contained in the solicitation shall be
effective unless the State recipient, at the request of the subrecipient, obtains an extension of the 90 day
period from DOL pursuant to 29 CFR 1.6(c) (3)(iv). The subrecipient shall monitor www.wdol.qov on a weekly
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DWSRF Loan Contract(Municipal)v1
basis if it does not award the contract within 90 days of closure of the solicitation to ensure that wage
determinations contained in the solicitation remain current.
(b) If the subrecipient carries out activity subject to DB by issuing a task order, work assignment or similar instrument to an
existing contractor(ordering instrument)rather than by publishing a solicitation, the subrecipient shall insert the appropriate
DOL wage determination from www.wdol.qov into the ordering instrument.
(c) Subrecipients shall review all subcontracts subject to DB entered into by prime contractors to verify that the prime
contractor has required its subcontractors to include the applicable wage determinations.
(d) As provided in 29 CFR 1.6(f), DOL may issue a revised wage determination applicable to a subrecipient's contract
after the award of a contract or the issuance of an ordering instrument if DOL determines that the subrecipient has failed
to incorporate a wage determination or has used a wage determination that clearly does not apply to the contract or
ordering instrument. If this occurs, the subrecipient shall either terminate the contract or ordering instrument and issue a
revised solicitation or ordering instrument or incorporate DOL's wage determination retroactive to the beginning of the
contract or ordering instrument by change order. The subrecipient's contractor must be compensated for any increases in
wages resulting from the use of DOL's revised wage determination.
3. Contract and Subcontract provisions.
(a) The Recipient shall insure that the subrecipient(s)shall insert in full in any contract in excess of$2,000 which is
entered into for the actual construction, alteration and/or repair, including painting and decorating, of a treatment work
under the CWSRF or a construction project under the DWSRF financed in whole or in part from Federal funds or in
accordance with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal
agency to make a loan, grant or annual contribution (except where a different meaning is expressly indicated), and which
is subject to the labor standards provisions of any of the acts listed in § 5.1 or the FY 2013 Continuing Resolution, the
following clauses:
(1) Minimum wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less
often than once a week, and without subsequent deduction or rebate on any account(except such payroll deductions as
are permitted by regulations issued by the Secretary of Labor under the Copeland Act(29 CFR part 3)), the full amount of
wages and bona fide fringe benefits(or cash equivalents thereof)due at time of payment computed at rates not less than
those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof,
regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and
mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2)of the Davis-Bacon
Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the
provisions of paragraph (a)(1)(iv)of this section; also, regular contributions made or costs incurred for more than a weekly
period (but not less often than quarterly)under plans, funds, or programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the
appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed,
without regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked therein:
Provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is
performed. The wage determination (including any additional classification and wage rates conformed under paragraph
(a)(1)(ii)of this section)and the Davis-Bacon poster(WH-1321) shall be posted at all times by the Borrower and its
subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
Subrecipients may obtain wage determinations from the U.S. Department of Labor's web site, www.dol.gov.
(ii)(A) The subrecipient(s), on behalf of EPA, shall require that any class of laborers or mechanics, including helpers,
which is not listed in the wage determination and which is to be employed under the contract shall be classified in
conformance with the wage determination. The State award official shall approve a request for an additional classification
and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage
determination; and
(2) The classification is utilized in the area by the construction industry; and
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DWSRF Loan Contract(Municipal)v1
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the subrecipient(s)agree on the classification and wage rate (including the amount designated for
fringe benefits where appropriate), documentation of the action taken and the request, including the local wage
determination shall be sent by the subrecipient(s)to the State award official. The State award official will transmit the
request, to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of
Labor,Washington, DC 20210 and to the EPA DB Regional Coordinator concurrently. The Administrator, or an
authorized representative, will approve, modify, or disapprove every additional classification request within 30 days of
receipt and so advise the State award official or will notify the State award official within the 30-day period that additional
time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives,
and the subrecipient(s)do not agree on the proposed classification and wage rate(including the amount designated for
fringe benefits, where appropriate), the award official shall refer the request and the local wage determination, including
the views of all interested parties and the recommendation of the State award official, to the Administrator for
determination. The request shall be sent to the EPA DB Regional Coordinator concurrently. The Administrator, or an
authorized representative, will issue a determination within 30 days of receipt of the request and so advise the contracting
officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate)determined pursuant to paragraphs (a)(1)(ii)(B)or(C)of
this section, shall be paid to all workers performing work in the classification under this contract from the first day on which
work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe
benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the
wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits
under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the contractor, that
the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set
aside in a separate account assets for the meeting of obligations under the plan or program.
(2) Withholding. The subrecipient(s), shall upon written request of the EPA Award Official or an authorized representative
of the Department of Labor, withhold or cause to be withheld from the contractor under this contract or any other Federal
contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage
requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the
contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any
laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of
the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner,
take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds
until such violations have ceased.
(3) Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and
preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such
records shall contain the name, address, and social security number of each such worker, his or her correct classification,
hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B)of the Davis-Bacon Act), daily and weekly number of hours
worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv)
that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits
under a plan or program described in section 1(b)(2)(B)of the Davis-Bacon Act, the contractor shall maintain records
which show that the commitment to provide such benefits is enforceable, that the plan or program is financially
responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and
records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing
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DWSRF Loan Contract(Municipal)v1
apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship
programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage
rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to
the subrecipient, that is, the entity that receives the sub-grant or loan from the State capitalization grant recipient. Such
documentation shall be available on request of the State recipient or EPA. As to each payroll copy received, the
subrecipient shall provide written confirmation in a form satisfactory to the State indicating whether or not the project is in
compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the specified week.
The payrolls shall set out accurately and completely all of the information required to be maintained under 29 CFR
5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on the weekly payrolls.
Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four
digits of the employee's social security number). The required weekly payroll information may be submitted in any form
desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at
http://www.dol.qov/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social
security number and current address of each covered worker, and shall provide them upon request to the subrecipient(s)
for transmission to the State or EPA if requested by EPA, the State, the contractor, or the Wage and Hour Division of the
Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a
violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers
to the prime contractor for its own records, without weekly submission to the subrecipient(s).
(B) Each payroll submitted shall be accompanied by a"Statement of Compliance," signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and
shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under§ 5.5(a)(3)(ii)of
Regulations, 29 CFR part 5, the appropriate information is being maintained under§ 5.5(a)(3)(i)of Regulations, 29 CFR
part 5, and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee)employed on the contract during the
payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no
deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as
set forth in Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into
the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347
shall satisfy the requirement for submission of the"Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this
section.
(D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal
prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i)of this section available for
inspection, copying, or transcription by authorized representatives of the State, EPA or the Department of Labor, and shall
permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor
fails to submit the required records or to make them available, the Federal agency or State may, after written notice to the
contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make
such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and trainees--
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed
when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the
U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and
Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her
first 90 days of probationary employment as an apprentice in such an apprenticeship program,who is not individually
DWL24029—City of Auburn Page 25 of 28 Attachment VII: Labor Standards Provisions
DWSRF Loan Contract(Municipal)v1
registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor
Services or a State Apprenticeship Agency(where appropriate)to be eligible for probationary employment as an
apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater
than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a
payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less
than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not
less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is
performing construction on a project in a locality other than that in which its program is registered, the ratios and wage
rates (expressed in percentages of the journeyman's hourly rate)specified in the contractor's or subcontractor's registered
program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program
for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable
wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of
fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a
different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that
determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no
longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined
rate for the work performed unless they are employed pursuant to and individually registered in a program which has
received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training
Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified
in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate
specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of
the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that
there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination
which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is
not registered and participating in a training plan approved by the Employment and Training Administration shall be paid
not less than the applicable wage rate on the wage determination for the classification of work actually performed. In
addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be
paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the
Employment and Training Administration withdraws approval of a training program, the contractor will no longer be
permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable
program is approved.
(iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in
conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part
30.
(5) Compliance with Copeland Act requirements. The Borrower must comply with the requirements of 29 CFR part 3,
which are incorporated by reference in this contract.
(6) Subcontracts. The Borrower and/or subcontractor must insert in any subcontracts the clauses contained in 29 CFR
5.5(a)(1)through (10)and such other clauses as the EPA determines may by appropriate, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the
compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
(7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of
the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and
Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract.
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DWSRF Loan Contract(Municipal)v1
(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not
be subject to the general disputes clause of this contract. Such disputes will be resolved according to the procedures of
the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes
between the contractor(or any of its subcontractors)and Subrecipient(s), State, EPA, the U.S. Department of Labor, or
the employees or their representatives.
(10)Certification of eligibility.
(i) By entering into this contract, Borrower certifies that neither it(nor he or she) nor any person or firm who has an
interest in the Borrower's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of
the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by
virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC 1001.
4. Contract Provision for Contracts in Excess of$100,000.
(a) Contract Work Hours and Safety Standards Act. The subrecipient shall insert the following clauses set forth in
paragraphs(a)(1), (2), (3), and (4)of this section in full in any contract in an amount in excess of$100,000 and subject to
the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition
to the clauses required by Item 3, above or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics
include watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all
hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in
paragraph (a)(1)of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid
wages. In addition, such contractor and subcontractor shall be liable to the United States(in the case of work done under
contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such
liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in paragraph (a)(1)of this section, in the sum of$10 for each
calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty
hours without payment of the overtime wages required by the clause set forth in paragraph (a)(1)of this section.
(3) Withholding for unpaid wages and liquidated damages. The subrecipient, upon written request of the EPA Award
Official or an authorized representative of the Department of Labor, shall withhold or cause to be withheld, from any
moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other
Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as
provided in the clause set forth in paragraph (b)(2)of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph
(a)(1)through (4)of this section and also a clause requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in paragraphs(a)(1)through (4)of this section.
(b) In addition to the clauses contained in Item 3, above, in any contract subject only to the Contract Work Hours and
Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, the Subrecipient shall insert a clause
requiring that the contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the
work and shall preserve them for a period of three years from the completion of the contract for all laborers and
mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address
of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly
number of hours worked, deductions made, and actual wages paid. Further, the Subrecipient shall insert in any such
contract a clause providing hat the records to be maintained under this paragraph shall be made available by the
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contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the(write the name of
agency)and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview
employees during working hours on the job.
5. Compliance Verification
(a) The subrecipient shall periodically interview a sufficient number of employees entitled to DB prevailing wages
(covered employees)to verify that contractors or subcontractors are paying the appropriate wage rates. As provided in 29
CFR 5.6(a)(6), all interviews must be conducted in confidence. The subrecipient must use Standard Form 1445(SF
1445)or equivalent documentation to memorialize the interviews. Copies of the SF 1445 are available from EPA on
request.
(b) The subrecipient shall establish and follow an interview schedule based on its assessment of the risks of
noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract.
Subrecipients must conduct more frequent interviews if the initial interviews or other information indicated that there is a
risk that the contractor or subcontractor is not complying with DB.
Subrecipients shall immediately conduct interviews in response to an alleged violation of the prevailing wage
requirements. All interviews shall be conducted in confidence."
(c) The subrecipient shall periodically conduct spot checks of a representative sample of weekly payroll data to verify that
contractors or subcontractors are paying the appropriate wage rates. The subrecipient shall establish and follow a spot
check schedule based on its assessment of the risks of noncompliance with DB posed by contractors or subcontractors
and the duration of the contract or subcontract. At a minimum, if practicable, the subrecipient should spot check payroll
data within two weeks of each contractor or subcontractor's submission of its initial payroll data and two weeks prior to the
completion date the contract or subcontract. Subrecipients must conduct more frequent spot checks if the initial spot
check or other information indicates that there is a risk that the contractor or subcontractor is not complying with DB. In
addition, during the examinations the subrecipient shall verify evidence of fringe benefit plans and payments thereunder
by contractors and subcontractors who claim credit for fringe benefit contributions.
(d) The subrecipient shall periodically review contractors and subcontractors use of apprentices and trainees to verify
registration and certification with respect to apprenticeship and training programs approved by either the U.S Department
of Labor or a state, as appropriate, and that contractors and subcontractors are not using disproportionate numbers of,
laborers, trainees and apprentices. These reviews shall be conducted in accordance with the schedules for spot checks
and interviews described in Item 5(b)and (c)above.
(e) Subrecipients must immediately report potential violations of the DB prevailing wage requirements to the Department
of Health and to the appropriate DOL Wage and Hour District Office listed at
https://www.dol.gov/whd/WHD district offices.pdf.
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