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HomeMy WebLinkAboutCAG2001-0551 - Original - WA State Dept of Commumity, Trade & Economic Development - Clark Lake Park Acquisition - 12/19/2001 STATE OF WASHINGTON DEPARTMENT OF COMMUNITY, TRADE, AND ECONOMIC DEVELOPMENT CAPITAL CONTRACT #02-99300-005 This contract, entered into by and between the Washington State Department of Community, Trade, and Economic Development (hereinafter referred to as the DEPARTMENT), and the City of Kent (a municipal corporation hereinafter referred to as the CONTRACTOR), WITNESSES THAT WHEREAS, the DEPARTMENT has the statutory responsibility under RCW 43 330 050 (5) to cooperate with and provide assistance to local governments, businesses, and community-based organizations serving the communities of the state of Washington, and WHEREAS, the DEPARTMENT is also given the responsibility to administer state funds and programs which are assigned to the DEPARTMENT by the Governor or the Washington State Legislature, and WIIEREAS, the 2001 Washington State Legislature has, in SSB 6155, Section 145 (the State Capital Budget) appropriated funding for a grant solely and specifically to help with the capital costs directly related to Clark Lake Park(a venture hereinafter referred to as the Project), and WHEREAS, the CONTRACTOR is the entity responsible for the land acquisition and development costs directly associated with Clark Lake Park NOW, THEREFORE, in consideration of covenants, conditions, performances, and promises hereinafter contained, the parties hereto agree as follows 1 FUNDING The total funds awarded to the CONTRACTOR hereunder shall be a sum up to, but not to exceed $246,875 The DEPARTMENT has retained $3,125 (one and one-quarter percent) of the Appropriation as reimbursement for costs directly associated with managing the completion of this contract 1 2 SERVICE PROVISIONS a) Funds awarded under this contract shall be used to reimburse the CONTRACTOR for capital costs directly related to Clark Lake Park, as contemplated in SSB 6155, Section 145 (the State Capital Budget) b) The CONTRACTOR shall perform in accordance with the terms and conditions of this contract and the following attachments which, by this reference, are made a part of this contract ATTACHMENT A(Project Budget) ATTACHMENT B (Project Scope of Work) 3 CONTRACT PERIOD a) The effective date of this contract shall be the date of the last signature of the contracting parties b) Unless ternunated earlier pursuant to Sections 7, 10, or 20, hereof, the termination date of this contract shall be June 30, 2005 4 ELIGIBLE COSTS The CONTRACTOR may be reimbursed for the following categories of costs a) Real property, when purchased or acquired solely for the purposes of the Project, b) Design, engineering, planning, and architectural fees, c) Project management fees (from external sources only), d) Construction costs, including but not limited to, the following Labor and materials, Site preparation and improvements, Permits and fees, Taxes, Capitalized equipment, and, Landscaping 5 PAYMENT PROVISIONS a) Payments to the CONTRACTOR shall be made on a reimbursement basis only For the purposes of this contract, reimbursement shall be construed to mean costs incurred and paid, or costs incurred and payable within thirty(30) days b) When requesting reimbursement for costs incurred or expenditures made,the CONTRACTOR shall submit to the DEPARTMENT a signed and completed Invoice Voucher (Form A-19), referencing the Project activity performed during the previous billing period, and documents (invoices, bills, and the like)which support such claim(s) The voucher must be certified by an official of the 2 CONTRACTOR with authority to bind the CONTRACTOR The final voucher shall be submitted to the DEPARTMENT not later than fifteen(15) days following the completion or termination of this contract c) After receiving and approving the voucher and accompanying documents, the DEPARTMENT shall promptly remit a warrant to the CONTRACTOR 6 EVALUATION AND MONITORING a) The CONTRACTOR shall cooperate with and freely participate in any monitoring or evaluation activities conducted by the DEPARTMENT that are pertinent to the intent of this contract, including periodic site inspections b) The DEPARTMENT or the State Auditor and any of their representatives shall have full access to and the right to examine during normal business hours and as often as the DEPARTMENT or the State Auditor may deem necessary, all the CONTRACTOR'S records with respect to all matters covered in this contract Such representatives shall provide the CONTRACTOR with reasonable notice prior to any such examination, and shall be permitted to audit, examine, and make excerpts or transcripts from such records and to make audits of all contracts, invoices, materials, payrolls, and records of matters covered by this contract Such rights last for six years from the date final payment is made hereunder 7 NONDISCRIMINATION PROVISION a) During the performance of this contract, the CONTRACTOR 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]) b) In the event of the CONTRACTOR'S noncompliance or refusal to comply with any nondiscrimination law, regulation, or policy,this contract may be rescinded, canceled, or terminated in whole or in part, and the CONTRACTOR may be declared ineligible for further contracts with the DEPARTMENT The CONTRACTOR shall, however, be given a reasonable time in which to cure any such noncompliance Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein 8 CONTRACT MODIFICATIONS The DEPARTMENT and the CONTRACTOR may, from time to time, desire to make changes to this contract Any such changes that are mutually agreed upon by the DEPARTMENT and the CONTRACTOR shall be incorporated herein by written amendment It is mutually agreed and understood that, except for the budget modifications described in Section 9, hereof, no alteration or variation of the terms of this contract shall be valid unless made in writing and signed by the parties hereto prior to 3 implementation of the changes, and that any oral understanding or agreements not incorporated herein shall not be binding 9 MODIFICATIONS TO THE PROJECT BUDGET a) Notwithstanding any other provision of this contract, the CONTRACTOR may, at its discretion, make modifications not to exceed ten(10) percent of each line item in the Project Budget (Attachment A, hereto) b) The CONTRACTOR shall notify the DEPARTMENT in writing prior to making any budget modification or modifications that would exceed ten (10) percent of any budget line item Any such request for changes in the budget that are mutually agreed upon by the DEPARTMENT and the CONTRACTOR shall be made in writing and signed by both parties, and attached to the budget attachment to this contract. 10 TERMINATION OF CONTRACT a) If,through any cause,the CONTRACTOR shall fail to fulfill in a timely and proper manner its obligations under this contract or if the CONTRACTOR shall violate any of its covenants, agreements or stipulations of this contract, the DEPARTMENT shall thereupon have the right to terminate this contract and withhold the remaining allocation if such default or violation is not corrected within twenty (20) days after the DEPARTMENT'S submitting written notice to the CONTRACTOR describing such default or violation,Provided, that if more than twenty(20) days are required to correct any such default or violation and the CONTRACTOR has initiated appropriate corrective measures as reasonably determined by the DEPARTMENT, the DEPARTMENT will not terminate this CONTRACT for such default or violation b) Notwithstanding any provisions of this contract, either party may terminate this contract by providing the other party with written notice of such termination, specifying the effective date thereof, at least thirty(30) days prior to such date. c) In the event this contract is terminated, the CONTRACTOR shall be reimbursed for eligible expenses incurred prior to the effective date of such termination and not otherwise paid for by the DEPARTMENT, as the DEPARTMENT reasonably determines 4 11 SPECIAL PROVISION The DEPARTMENT'S failure to insist upon the strict performance of any provision of this contract or to exercise any right based upon a breach thereof or the acceptance of any performance during such breach, shall not constitute a waiver of any right under this contract 12 HOLD HARMLESS a) It is understood and agreed that this contract is solely for the benefit of the parties hereto and gives no right to any other parry No joint venture or partnership is formed as a result of this contract Each party hereto agrees to be responsible and assume liability for its own negligent acts or omissions, or those of its officers, agents, or employees to the fullest extent required by law, and agrees to save, indemnify, defend, and hold the other party harmless from any such liability In the case of negligence of more than one party, any damages allowed shall be levied in proportion to the percentage of negligence attributable to each party, and each party shall have the right to seek contribution from the other party in proportion to the percentage of negligence attributable to the other party b) This indemnification clause shall also apply to any and all causes of action arising out of the performance of work activities under this contract Each contract for services or activities utilizing funds provided in whole or in part by this contract shall include a provision that the DEPARTMENT and the state of Waslungton are not liable for damages or claims from damages arising from any subcontractor's performance or activities under the terms of the contracts 13 RECAPTURE PROVISION In the event the CONTRACTOR fails to expend state funds in accordance with state law and/or the provisions of this contract, the DEPARTMENT reserves the right to recapture state funds in an amount equivalent to the extent of noncompliance Such right of recapture shall exist for a period not to exceed three (3)years following termination of the contract Repayment by the CONTRACTOR of state funds under this recapture provision shall occur within thirty (30) days of demand In the event that the DEPARTMENT is required to institute proceedings to enforce this recapture provision, the DEPARTMENT shall be entitled to its cost thereof, including reasonable attorney's fees 14 OWNERSHII' OF PROJECT/CAPITAL FACILITIES The DEPARTMENT makes no claim to any real property improved or constructed with funds awarded under this contract and does not assert and will not acquire any ownership interest in or title to the capital facilities and/or equipment constructed or purchased with state funds under this contract This provision does not extend to claims that the DEPARTMENT may bring against the CONTRACTOR in recapturing funds expended in violation of this contract 5 15. RELATIONSHIP BETWEEN THE PARTIES The CONTRACTOR and its employees or agents performing under this contract are not deemed to be employees of the DEPARTMENT nor agents of the DEPARTMENT in any manner whatsoever, nor will they hold themselves out as nor claim to be officers or employees of the DEPARTMENT or of the state of Washington hereof and will not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of the DEPARTMENT or of the state of Washington 16 DISPUTES Except as otherwise provided in this contract, when a bona fide dispute arises between the parties and it cannot be resolved through discussion and negotiation, either party may request a dispute hearing The parties shall select a dispute resolution team to resolve the dispute The dispute resolution team shall consist of a representative appointed by the DEPARTMENT, a representative appointed by the CONTRACTOR, and a third party agreed upon by both parties The dispute resolution team shall attempt, by majority vote, to resolve the dispute The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial setting 17 GOVERNING LAW AND VENUE This contract 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 contract shall be the superior court of Thurston County, Washington 18 SEVERABILITY If any term or condition of this contract or application thereof to any person or circum- stances is held invalid, such invalidity shall not affect other terns, conditions, or appli- cations of this contract which can be given effect without the invalid term, condition, or application Accordingly, the terms and conditions of this contract are declared severable 19 REDUCTION IN FUNDS In the event state funds appropriated for the work contemplated under this contract are withdrawn, reduced, or lirmted in any way by the Governor or the Washington State Legislature during the contract period, the parties hereto shall be bound by any such revised funding limitations as implemented at the discretion of the DEPARTMENT, and shall meet and renegotiate the contract accordingly 20 REAPPROPRIATION a) The parties hereto agree and understand that any state funds not expended by June 30, 2003, will lapse on that date unless reappropriated by the Washington State Legislature If any such state funds are reappropriated for use in the 2003 - 2005 biennial budget, the state's obligations under this contract shall be contingent upon the terms of such reapprnnriation 6 b) The DEPARTMENT reserves the right to assign a share of any such reappropnation as reimbursement for costs directly associated with managing the completion of this contract c) In the event that any funds not expended by June 30, 2003, are not reappropriated for this Project in the 2003 —2005 biennial budget, this contract shall terminate on June 30, 2003 21 PREVAILING WAGE LAW The Project funded under this contract may be subject to state prevailing wage law (Chapter 39 12 RCW) The CONTRACTOR is advised to consult the Waslungton Department of Labor and Industries and/or private counsel to determine whether prevailing wages must be paid The DEPARTMENT is not responsible for determining whether prevailing wage law applies to this Project or for any prevailing wage payments that may be required by law 22 ENTIRE AGREEMENT This contract and all attachments hereto contain all the terms and conditions agreed upon by the parties No other understandings, oral or otherwise, regarding the subject matter of this contract and attachments shall be deemed to exist or to bind any of the parties hereto 23 ADMINISTRATION a) The CONTRACTOR'S representative shall be Lori Flemm b) The DEPARTMENT'S representative shall be Daniel Aarthun 7 IN WITNESS WHEREOF, the DEPARTMENT and CONTRACTOR have executed this contract as of the date and year written below DEPARTMENT OF COMMUNITY, CONTRACTOR TRAD ECONOMIC PJEVELOPMENT By By, Steve Wells, Assistant Director Department of Community, Trade and Economic Development Title / / Cty &Y� F Date Date /Z—/ 3 —01 APPROVED AS TO F,OORoM� Washington State UBI No Assistant Attorney General Federal Tax ID No Date qt&00os4 8 ATTACHMENT A PROJECT BUDGET Site acquisition $5,110,840 9 ATTACHMENT B PROJECT SCOPE OF WORK The funds awarded under this contract shall be used solely and specifically for capital costs directly related the acquisition of property for Clark Lake Park, located in and near the City of Kent, Washington A legal description of the subject property follows Parcel A The northeast quarter of the northwest quarter of Section 21, Township 22 North, Range 5 East, W M , in King County, Washington, EXCEPT that portion thereof as conveyed to King County for Southeast 240t' Street by deed recorded under Recording Number 6250911, AND EXCEPT that portion thereof as conveyed to King County for roads by deed recorded under Recording Number 9703201028, AND EXCEPT that portion of the remainder for 120th Avenue Southeast Parcel B The southeast quarter of the northwest quarter of Section 21, Township 22 north, Range 5 East, W M , in King County, Washington, EXCEPT that portion thereof lying within Southeast 248h Street as presently established, AND EXCEPT that portion thereof lying within 120'h Avenue Southeast as presently established Assessor's Tax Parcel Number 212205-9007- and 2 1 2205-90 1 1 Site acquisition was completed in November, 2000 10