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HomeMy WebLinkAboutCAG2001-0552 - Original - Public Works Board - Public Works Trust Fund PW-01-791-032 associated with PW-01-691-032 - 05/25/2001 PUBLIC WORKS TRUST FUND �� 1 2�� CONSTRUCTION LOAN AGREEMENT NUMBER PW-01-791-032 °01 � CITY OFKENT 5L iL J''JU1ul4 PART I: ENTIRE AGREEMENT This agreement, and incorporated attachments, contains all terms and conditions agreed b by the PUBLIC WORKS BOARD and the LOCAL GOVERNMENT and no other statements or representations written or oral, shall be deemed a part thereof This contract consists of ten pages and two attachments An attachment to this agreement, ATTACHMENT I SCOPE OF WORK, consists of a description of local project activities, certification of the prolect's useful life, and identification of estimated project costs and fund sources and is, by this reference, incorporated into this agreement as though set forth fully herein In addition, ATTACHMENT H ATTORNEY'S CERTIFICATION, is by this reference incorporated into this agreement The PUB"IC WORKS BOARD and the LOCAL GOVERNMENT have executed this agreement as of the date and year last written below DEPARTMENT OF COMMUNITY, LOCAL GOVERNMENT TRADE AND ECONOMIC T DEV� Steve Wells Na Jly\,- l Oil Director, Local Government Division M LP((A��- Title Title Date Date APPROVED AS TO FORM ONLY 5th Day of February,2001 91. '6 Christine O Gregorie Federal Taxpayer Identification Number Attorney General By Signature on File Assistant Attorney General Jeanne A Cushman (Pnnt Name) b 1— �np�t �. VI,JSdJ ,ass+ o t-d � CJ a Page I � 2001 PWTF,Con¢truptton'Losn Agreement &ED Contract Number KFNT PART H: INTRODUCTION This loan agreement is made and entered into by and between the PUBLIC WORKS BOARD, or its successor, (referred to as the "BOARD"), a department of the state of Washington, and CITY OF KENT (referred to as the "LOCAL GOVERNMENT") Acting under the authority of Chapter 43155 RCW, the BOARD has selected the LOCAL GOVERNMENT to receive a Public Works Trust Fund loan for an approved public works project PART III: PURPOSE The BOARD and the LOCAL GOVERNMENT have entered into this agreement to undertake a local public works project that furthers the goals and objectives of the Washington State Public Works Trust Fund Program The project will be undertaken by the LOCAL GOVERNMENT and will include the activities described in ATTACHMENT I SCOPE OF WORK The project must be undertaken in accordance with PART IV TERMS AND CONDITIONS, and all applicable state and local laws and ordinances, which by this reference are incorporated into this agreement as though set forth fully herem PART IV: TERMS AND CONDITIONS The parties to this agreement agree as follows 4 01 Rate and Term of Loan The BOARD, using funds appropriated from the Public Works Assistance Account, shall loan the LOCAL GOVERNMENT a sum not to exceed $10,000,000 00 The interest rate shall be one-half percent (1/2%) per annum on the outstanding principal balance The term of the loan shall not exceed 20 years, with the final payment due July 1, 2021 4 02 Local Project Share The LOCAL GOVERNMENT pledges an amount of locally-generated revenue not less than fifteen percent (15%) of the total eligible portion of the project cost not funded by federal or state grants as identified in ATTACHMENT I SCOPE OF WORK, to be venfied at the time of project close-out Any change in the percentage of locally-generated funds may require an adjustment in the loan amount or interest rate charged, or both In such event, the LOCAL GOVERNMENT agrees to execute an amendment to this agreement adjusting the loan amount or interest rate, as appropriate Local project share must consist of expenditures eligible under WAC 399-30-030(3)and be related only to project activities described in ATTACHMENT I SCOPE OF WORK These expenditures may be made up to twelve (12) months prior to the execution of the loan agreement and verified at the time of project close-out PUBLIC WORKS TRUST FUND MONIES MAY NOT BE USED TO-REIMBURSE THE LOCAL GOVERNMENT FOR ANY COSTS INCURRED PRIOR TO EXECUTION OF THIS LOAN AGREEMENT Page 2 2001 PWTF Construction Loan Agreement CTED Contract Number KENT 4 03 Disbursement of Loan Proceeds Warrants shall be issued to the LOCAL GOVERNMENT for payment of allowable expenses incurred by the LOCAL GOVERNMENT while undertaking and administering approved project activities in accordance with ATTACHMENT I SCOPE OF WORK In no event shall the total Public Works Trust Fund loan exceed eighty five percent (85%) of the eligible actual project costs The disbursement of loan proceeds shall be initiated by the LOCAL GOVERNMENT on a Washington State Invoice Voucher form The loan funds will be disbursed to the LOCAL GOVERNMENT as follows Within thirty (30) days of the formal execution of this agreement, a sum not to exceed fifteen percent(151/o) of the approved Public Works Trust Fund loan shall be disbursed to the LOCAL GOVERNMENT Within thirty (30) days of the execution of a Notice to Proceed which follows the formal award of a construction contract, a sum not to exceed eighty percent (80%) of the approved Public Works Trust Fund loan shall be disbursed to the LOCAL GOVERNMENT, except in the case of engineering services contracts If the approved project described in ATTACHMENT I SCOPE OF WORK is solely for the completion of engineering studies, a sum not to exceed eighty percent(80%) of the approved Public Works Trust Fund loan shall be disbursed to the LOCAL GOVERNMENT within thirty(30) days of the execution of a Notice to Proceed following the formal award of a contract for engineering services At the time of project completion, a Closeout Report, (refer to Section 4 19 for Close-out Report), shall be submitted to the BOARD by the LOCAL GOVERNMENT certifying total actual project costs The final Public Works Trust Fund loan disbursement shall not bring the total loan in excess ofeighty five percent (85%) of the eligible project costs or the total of$10,000,000 00 whichever is less The Close-out Report shall serve as a contract AMENDMENT for determining the final loan amount, interest rate, and local share In the event that the final costs identified in the Closeout Report indicate that the LOCAL GOVERNMENT has received Public Works Trust Fund monies m excess of eighty five percent (85%) of eligible costs, all funds in excess of eighty five percent(85%) shall be repaid to the Department of Community, Trade and Economic Development, or its successor,within thirty (30)days of submission of the Closeout Report 4 04 Interest Earned on Public Works Trust Fund Monies All interest earned on Public Works Trust Fund Monies held by the LOCAL GOVERNMENT shall accrue to the benefit of the LOCAL GOVERNMENT and be applied to the eligible costs of the approved project Benefits shall accrue in one of two ways 1 Reduce the amount of the Public Works Trust Fund loan 2 Pay any part of eligible project costs that are in excess of ATTACHMENT I- SCOPE OF WORK estimates, if there is an overrun of project costs The LOCAL GOVERNMENT shall establish procedures to ensure that all monies received from the Public Works Trust Fund loan can be readily identified and accounted for at any time during the lid of this loan Page 3 2001 P W TF Construction Loan Agreement CTED Contract Number KENT agreement Such procedures shall consist of the establishment of a separate fund, account, sub-account or any other method meeting generally accepted accounting principles 4 05 Time of Performance The LOCAL GOVERNMENT shall begin the activities identified within ATTACHMENT I SCOPE OF WORK no later than three months after loan agreement execution, and reach project completion no later than thirty-six(36)months after the date of agreement execution Failure to perform within the time frame described in the preceding paragraph may constitute default of this agreement and require the immediate repayment of any loan funds disbursed In the event of extenuating circumstances,the LOCAL GOVERNMENT may request, in writing, that the BOARD extend the deadline for project completion The BOARD may,by a two-thirds vote,extend the deadline The term of this agreement shall be for the entire term of the loan, irrespective of actual project completion, unless terminated sooner as provided herein 4 06 Repayment The first loan repayment under this agreement is due July 1, 2002, and subsequent installments are due on July 1 of each year during the term of the loan The first repayment under this agreement shall consist of interest only at the rate of one-half percent (1/2%) per annum, calculated on a 360-day year of twelve 30-day months, applied to funds received Interest will begin to accrue from the date each warrant is issuai to the LOCAL GOVERNMENT Subsequent repayments shall consist of the principal balance due divided by the loan term remaining plus interest on the unpaid balance of the loan The final payment shall be an amount sufficient to bring the loan balance to Mro The LOCAL GOVERNMENT has the right to repay the unpaid balance of the loan in full at any time, and the right to repay at a faster rate than is provided in this agreement, provided that any such payment must equal or exceed the principal amount normally due on an annual basis Page 4 2001 PWTF Construction Loan Agreement CTFD Contract Number KENT The LOCAL GOVERNMENT will repay the loan in accordance with the preceding conditions through the use of a check, money order, or equivalent means made payable to the Department of Community, Trade and Economic Development, or its successor, and sent to Department of Community,Trade and Economic Development Administrative Services Division/Fiscal Unit 906 Columbia Street S W P O Box 48300 Olympia,Washington 98504-8300 4 07 Repayment Account The LOCAL GOVERNMENT shall repay the loan solely from utility revenues, general obligation revenues, or a combination thereof The name of the fund, account, or sub-account shall be -H.e� cn)iYlart t�u� -T 4 08 Default in Repayment Loan repayments shall be made on the loan in accordance with Section 4 06 of this agreement A payment not received within thirty (30) days of the due date shall be declared delinquent Delinquent payments shall be assessed a daily penalty beginning on the thirty-first (31) day past the due date The penalty will be assessed on the entire payment amount The penalty will be twelve percent (12%) per annum calculated on a 360-day year Upon default in the payment of any annual installment, the BOARD may declare the entire remaining balance of the loan, together with interest accrued, immediately due and payable Failure to exercise its option with respect to any such repayment in default shall not constitute a waiver by the BOARD to exercise such option for any succeeding installment payment which may then be in default The LOCAL GOVERNMENT shall pay the costs and reasonable legal fees incurred by the BOARD in any action undertaken to enforce its tights under this section The same penalty terms shall apply to delinquent repayment of funds paid in excess of eligible costs as provided for in Section 4 03 Page 5 2001 PWTF Construction Loan Agreement CTED Contract Number KENT 4 09 Loan Secunty The LOCAL GOVERNMENT must select one of the following options for securing repayment of the loan Please initial the appropriate option 1. General Obligation: This loan is a general obligation of the LOCAL GOVERNMENT OR 2. �JRevenue Obligation: This option may be used only if the entire project is a domestic water, sanitary sewer, storm sewer or solid waste utility project LOCAL GOVERNMENTS performing a storm sewer project that have not created a storm sewer utility or a combined sanitary sewer/storm sewer utility may not use this option Projects providing for a mixture of bridge, road, domestic water, sanitary sewer, and storm sewer activities may not use this option This loan is a revenue obligation of the LOCAL GOVERNMENT payable solely from the net revenue of the utility system indicated below Payments shall be made from the net revenue of the utility after the payment of the principal and interest on any revenue bonds, notes, warrants or other obligations of the utility having a hen on that net revenue As used here, "net revenue" means gross revenue minus expenses of maintenance and operations The BOARD grants the LOCAL GOVERNMENT the right to Issue future bonds and notes that constitute a hen and charge on net revenue superior to the lien and charge of this loan agreement Please choose a initial one of the following utility systems Water Sanitary Sewer(Wastewater) Stormwater Water/Sanitary Sewer Stormwatei/Sanitary Sewer Solid Waste yn OR 3. Local Improvement District: Pursuant to RCW 35 51050, the LOCAL GOVERNMENT pledges to repay this loan from assessments collected from a Local Improvement District, Local Utility District or other similar special assessment district in which the improvements financed by this loan are located The name of the special assessment district is Nothing in this section shall absolve the LOCAL GOVERNMENT of its obligation to make loan repayments when due, and to adjust rates, fees, or surcharges, if necessary, to meet its obligations under this agreement Page 6 2001 PWTr Construction Loan Agreement CTED Contract Number KENT 4 10 Recordkeepmg and Access to Records The BOARD, the BOARD's agents, and duly authorized officials of the State shall have full access and the right to examine, copy, excerpt, or transcribe any pertinent documents, papers, records, and books of the LOCAL GOVERNMENT and of persons, firms,or organizations with which the LOCAL GOVERNMENT may contract, involving transactions related to this project and this agreement The LOCAL GOVERNMENT agrees to retain all records pertaining to this project and this agreement fir a period of six years from the date of project close-out 411 Reports The LOCAL GOVERNMENT, at such times and on such forms as the BOARD may require, shall furnish the BOARD with such periodic reports as it may request pertaining to the activities indertaken pursuant to this agreement including, but not limited to, quarterly progress reports, the Close Out Report, and any other matters covered by this agreement Failure to file periodic reports as requested may result in termination of this agreement as per Section 4 14 4 12 Indemnification The LOCAL GOVERNMENT will defend, protect, indemnify, save, and hold harmless the BOARD, and the state of Washington from and against any and all claims, costs, damages, expenses,or liability for any or all injures to persons or tangible property, ansing from the acts or omissions of the LOCAL GOVERNMENT or any of its contractors or subcontractors,or any employees or agents in the performance of this agreement, however caused In the case of negligence of both the BOARD and the LOCAL GOVERNMENT, any damages allowed shall be levied in proportion to the percentage of negligence attributable to each party 4 13 Amendments,Modifications and Waivers Except for an increase in the amount of the loan governed by this agreement, the LOCAL GOVERNMENT may request an amendment to this agreement for the purpose of modifying the SCOPE OF WORK or for extending the time of performance as provided for in Section 4 05 No modification or amendment resulting in an extension of time shall take effect until a request in writing has been received and approved by the BOARD in accordance with Section 4 05 No amendment or modification shall take effect until approved in writing by both the BOARD and the LOCAL GOVERNMENT and attached hereto No conditions or provisions of this agreement may be waived unless approved by the BOARD in writing. 4 14 Termination for Cause If the LOCAL GOVERNMENT fails to comply with the terms of this agreement, or fails to use the loan proceeds only for those activities identified in ATTACHMENT I SCOPE OF WORK, the BOARD may terminate the agreement in whole or in part at any time. The BOARD shall promptly notify the LOCAL GOVERNMENT to writing of its determination to terminate, the reason fQ such termination, and the effective date of the termination Upon termination of the loan agreement, the BOARD may declare the entire remaining balance of the loan,together with any interest accrued,immediately due and payable Page 7 2001 PWTF Construction Loan Agreement CTED Contract Number KENT 4 15 Termination For Convenience The BOARD may terminate this agreement in the event that federal or state funds are no longer available to the BOARD, or are not allocated for the purpose of meeting the BOARD'S obligations under this agreement Termination will be effective when the BOARD sends written notice of termination to the LOCAL GOVERNMENT 4 16 Governing Law and Venue This agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the state of Washington Venue of any suit between the parties ansing out of this agreement shall be the Superior Court of Thurston County, Washington The prevailing party is entitled to recover costs in accordance with Washington State Law(Chapter 4 84 RCW) 417 Severabilitv If any provision under this agreement or its application to any person or circumstances is held invalid by any court of rightful jurisdiction, this invalidity does not affect other provisions of the agreement which can be given effect without the invalid provision 4 18 Project Completion The BOARD will require and notify the LOCAL GOVERNMENT to initiate a Clos&out Report when the activities identified in ATTACHMENT I SCOPE OF WORK are completed In the report, the LOCAL GOVERNMENT will provide the following information to the BOARD 1 A certified statement of the actual dollar amounts spent, from all fund sources, in completing the project as described 2 A certified statement that the project, as described in the Loan Ag-eement's Scope of Work, is complete and has been designed/constructed to required standards 3 Certification that all costs associated with the project have been incurred Costs are incurred when goods and services are received and/or contract work is performed Page 8 2001 PWTF Construction Loan Agreement CTED Contract Number KENT 4 19 Project Close-Out In accordance with Section 4 03 of this agreement,the LOCAL GOVERNMENT will submit, together with the Close-out Report, a request for a sum not to exceed the final five percent(5%) of the loan amount This disbursement shall not occur prior to the completion of all project activities The LOCAL GOVERNMENT shall be responsible to ensure that their contractor(s) are in compliance with the Department of Revenue and the Department of Labor& Industries requirements 4 20 Audit Audits of the LOCAL GOVERNMENT'S project activities may be conducted by the Municipal Division of the State Auditor's Office in accordance with state law and any guidelines the Department of Community, Trade and Economic Development, or its successor,may prescribe Payment for the audit shall be made by the LOCAL GOVERNMENT 4 21 Project Signs If the LOCAL GOVERNMENT displays, during the period covered by this agreement, signs or markers identifying those agencies participating financially in the approved project, the sign or marker must identify the Washington State Public Works Trust Fund as a participant in the project 4 22 Utilization of Minority and Women's Business Enterprises(MWBE) In accordance with legislative findings and policies set forth in Chapter 3919 RCW, the BOARD encourages participation by Minority and Women's Business Enterprise firms certified by OMWBE Voluntary goals for participation are Construction/Public Works 10%MBE 6%WBE Architect/Engmeenng 10%MBE 6%WBE Purchased Goods 8%MBE 4%WBE Purchased Services 10°/n MBE 4%WBE Professional Services 10%MBE 4n/o WBE 4 23 Nondiscrimination Provision During the performance of this contract, the LOCAL GOVERNMENT shall comply with all federal and state nondiscrimination laws, including,but not limited to Chapter 49 60 RCW,Washington's Law Against Discrimination, and 42 U S C 12101 et seq,the Americans with Disabilities Act(ADA) In the event of the LOCAL GOVERNMENT'S noncompliance or refusal to comply with any applicable nondiscrimination law, regulation, or policy, this contract may be rescinded, canceled, or terminated in whole or in part, and the LOCAL GOVERNMENT may be declared ineligible for further contracts with the BOARD The LOCAL GOVERNMENT shall, however, be given a reasonable time in which to cure this noncompliance Page 9 2001 PWTF Construction Loan Agreement CTED Contract Number KENT 4 24 Historical and Cultural Artifacts The LOCAL GOVERNMENT agrees that if historical or cultural artifacts are discovered during construction, the LOCAL GOVERNMENT shall immediately stop construction and notify the local historical preservation officer and the state's historical preservation officer at the Washington State Office of Archeology and Historic Preservation The LOCAL GOVERNMENT shall require this provision to be contained in all contracts for work or services related to ATTACHMENT ONE SCOPE OF WORK PART V: SPECLAL ASSURANCES The LOCAL GOVERNMENT assures compliance with all applicable state and local laws, requirements, and ordinances as they per-tam to the design, implementation, and administration of the approved project Of particular importance are the following 5 01 RCW 43 155 060 The LOCAL GOVERNMENT shall comply with the provisions of RCW 43 155 060 regarding competitive bidding requirements for projects assisted in whole or in part with money from the Public Works Trust Fund program 5 02 WAC 399-30-030(3) The LOCAL GOVERNMENT assures compliance with WAC 399-30-030(3)which identifies eligible costs for projects assisted with Public Works Trust Fund loans Page 10 2001 PWTF Construction Loan Agreement CTED Contract Number KENT PUBLIC WORKS TRUST FUND ATTACHMENT 1: SCOPE OF WORK PW-01-791-032 f �' cQu; CITY OF KENT (Jurisdiction) TACOMA'S SECOND SUPPLY PIPELINE(PIPELINE 5) (Project Title) 1 Provide a clear description of the project to be financed in part by a Public Works Trust Fund loan (Attach additional sheets if necessary) The project consists of installing all or a portion of approximately 34 riles of 48 - 72 inch diameter transmission main,metering stations and an additional storage project at the Howard Hanson Dam Included are • The Second Diversion Water Right(up to 65 mgd), • The Second Supply Pipeline, commencing at the Headworks and continuing to Tacoma's pipeline No 4 near the Portland Avenue reservoir (approximately 34 miles with a nominal capacity of 72 mgd), • A portion of the improvements at the headworks diversion dam and intake (associated with the Second Diversion Water Right); • The Interne connecting the Second Supply Pipeline with the Seattle water distnbution system(approximately 8 miles with a nominal capacity of 25 mgd), • A portion of the Project fisheries and environmental enhancement costs, • The Howard Hanson Dam Additional Storage Project (up to 20,000 acre-feet per year of municipal water supply storage in Phase I and options to participate in Phase H, • A portion of the costs of expanding existing or constructing additional chlorination, fluoridation and corrosion control facilities 2 The term of this loan will be based on an engineer's certification of the expected useful life of the improvements, as stated below, or 20 years,whichever is less If the local government prefers the term of its loan to be less than either 20 years or the useful life of the improvements, the preferred loan term should be indicated 20 years 3 I, Don E Wickstrom , licensed engineer, certify that the average expected useful life for the impro�escnbed above is 100 years Signed Date Telephone (253) 856-5500 \\NY\USR\PW\PWDP\NYOSHI-1\USERDATA\DOC\2001\Memll\PW Tmst Fund doc Scope of Work Page Two PW-01-791-032 Estimated Protect Costs Total Costs Preliminary Engineering $ 430,000 Environmental Review $ 500,000 Design Engineering $ 1,800,000 Land/R-O-W Acquisition $ 240,000 Sales or Use Taxes $ 1,500,000 Other Fees $ 180,000 Construction Inspection $ 1,500,000 Start-Up Costs $ Relocation Costs $ Financing Costs S 750,000 Contingency 13°/") $ 2,700,000 Construction $ 18,400,000 1 Other(Specify) $ 2 Other(Specify) $ TOTAL ESTIMATED COSTS S 28,000,000 Anticipated Fund Sources A Federal Grants $ State Grants $ B Locally Generated Revenue General Funds $ Capital Reserves $ 10,000,000 Other Fund $ 8,000,000 Rates $ Assessments $ (LID,RID, ULID) Special Levies $ Federal Loan(s) from (identify all) State Loan(s)from (identify all) Other (identify sources) TOTAL LOCAL REVENUE $ 18,000,000 C PUBLIC WORKS TRUST FUND LOAN $ 10,000,000 11NY%USRIPWIPWDPWYOSHI-11USERDATAIDOC120011MemII1PW Trust Fund doc Scope of Work Page 3 PW-01-791-032 Calculating Local Percentage Notes: 1 Grant funds can not be counted as local match Calculate as follows Total Local Revenue PWTF Loan+Total Local Revenue = Local Percentage 64 29% The local contribution must be at least Five percent(5%) for a loan interest rate of 2% Ten percent(10%) for a loan interest rate of 1% Fifteen percent(15%) for a loan interest rate of .5% 1\NY\USR\PW\PWDP\NYOSHI-1\USERDATASDOCI2001\MemIRPW Trust Fund doc Public Works Trust Fund ATTACHMENT 11: ATTORNEY'S CERTIFICATION I, fZsz, C- U(ro o^3 hereby certify. I am an attorney at law admitted to practice in the State of Washington and the duly appointed attorney of the Cu< (Z�Y tom'°-4 (the LOCAL GOVERNMENT), and I have also examined any and all documents and records which are pertinent to the loan agreement, including the application requesting this financial assistance. Based on the foregoing, it is my opinion that: 1. The LOCAL GOVERNMENT is a public body, property constituted and operating under the laws of the State of Washington, empowered to receive and expend federal, state and local funds, to contract with the State of Washington, and to receive and expend the funds involved to accomplish the objectives set forth in their application 2. The LOCAL GOVERNMENT is empowered to accept the Public Works Trust Fund financial assistance and to provide for repayment of the loan as set forth in the loan agreement. 3 There is currently no litigation in existence seeking to enjoin the commencement or completion of the above-described public facilities project or to enjoin the LOCAL GOVERNMENT from repaying the Public works Trust Fund loan extended by the DEPARTMENT with respect to such project The LOCAL GOVERNMENT is not a party to litigation which will matenally affect its ability to repay such loan an the terms contained in the loan agreement. 4 Assumption of this obligation would not exceed statutory and administrative rule debt limitations applicable to the LOCAL GOVERNMENT. 1 -�-�-- 445 /a ( Signature of Attorney Date &6 YAW, Wr G& kor�j Name TN NO kP6. S.I kG�, \vA RED3� sty Address