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AG 10-177RETURN TO: EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM ORIGINATING DEPT./DIV: ` � � � 2. ORIGINATING STAFF PERSON: �,'�1 � EXT: 3. DATE REQ. BY:_ 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT � SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT O SECURIT'Y DOCUMENT (E.G. sorm �Ln�D DocuMErrTS� ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT (AG#): O INTERLOCAL � OTHER � 5. PROJECT NAME: - 1 sL! 6. 7 8 NAME OF CONTRACTOR: \ ,i� 1� : � �Q �� `� ' �I� ,� r � " ADDRESS: ��OI� �� 5} 5�, � �Q� � y,a��5 �_pl �1 ��� UvC3- '1.$�y� '�'J� E-MAIL: � � rH�: SIGNATURE NAME: �(1 TITLE ke��-��Q ��c�}Uf CU'��trC�'. C,Or ��G.� r i �yro� EXHIBITS AND ATTACHMENTS: ❑ scorE WO OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS TERM: COMMENCEMENT DATE: COMPLETION DATE: _ � � �� � I � � � 9. TOTAL COMPENSATION $ (INCLUDE EXPENSES AND SALES TAX, IF ANY� (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑�S ❑ rro iF YES,lvinxilv1U1�1 DoLLAR �vtOUNT: $ IS SALES TAX OWED ❑ YES ❑ NO IF YES, $ PAID BY: O CONTRACTOR ❑ CITY ❑ PURCHASING: PLEASE CHARGE TO: 10. DOCUMENT/CONTRACT REVIEW INITIAL/DATEREVIEWED INITIAL/DATEAPPROVED ❑ PROJECT MANAGER ❑ DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) �LAW ��. �D( 10 11. COUNCIL APPROVAL (IF APPLICABLE� COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: `Z 1 Z,C��� 12. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ LAW DEPARTMENT �"SIGNATOR MAYOR DIRECTOR� ❑ CITY CLERK ASSIGNED AG# ' SIGNED COPY RETURNED �� COMMENTS: � . i �in�l\YY1� IS � INI IAL / DATE SIGNED o�. Z O AG# � ' �""1'� DATE SENT: �2 •q � �� � 11/9 -� ``� Washington State f Public Works Board � 906 Columbia Street SW Post Office Box 48319 """"` Olympia, Washington 98504-8379 / (360) 725-3150 www.pwb,wa.gov Capital Agreement between: City of Federal Way and Public Works Board For: Project Name: Federal Way Urban Infrastructure Contract Number: LG09-951-129 Project Type: 2009-2011 Washington State Capital Budget Direct-Appropriation Execution/Start Date: Date of Contract Execution �� = �' �. " • • . . �� ���� � � w TABLE OF CONTENTS CONTRACTFACE SHEET ....................................................................................................... 1 CONTRACT TERMS AND CONDITIONS ................................................................................. 2 Part 1. SPECIAL TERMS AND CONDITIONS ..........................................................................2 1 .1. DEFINITIONS ............................................................................................................2 1.2. AUTHORITY ..............................................................................................................2 1.3. PURPOSE .................................................................................................................2 1.4. ORDER OF PRECEDENCE ......................................................................................2 1.5. GRANT AMOUNT ......................................................................................................2 1.6. CERTIFICATtON OF FUNDS ..............................._....................................................3 1.7. MODIFICATION TO THE PROJECT COSTS ...........................................................3 1.8. PROJECT EXPENDITURES ELIGIBLE FOR RElMBURSEMENT ..........................3 1.9. BILLING PROCEDURES AND PAYMENT ...............................................................4 1.10. CERTIFIED PROJECT COMPLETION REPORT .....................................................5 1.11. REPORTS ..................................................................................................................5 1.12. EVALUATION AND MONITORING ...........................................................................5 1.?3. OWNERSHIP OF PROJECT/CAPITAL FACIUTtES ................................................5 1 14. GHANGE OF OWNERSHIP OR USEfOR CONTRACTOR-OWNED PROPERTY5 1.15. CHANGE OF USE FOR LEASED PROPERTY ........................................................6 1.16. HISTORICAL AND CULTURAL ARTIFACTS ...........................................................6 1.17. SIGNAGE, MARKERS, AND PUBLICATIONS .........................................................6 1.18. PREVAILING WAGE LAW ........................................................................................6 1.19. INSURANCE ..............................................................................................................6 1.20. RECAPTURE PROVISION ........................................................................................9 1.21. REDUCTION IN FUNDS ...........................................................................................9 1.22. REAPPROPRIATION ................................................................................................9 Part 2. GENERAL TERMS AND CONDITIONS ......................................................................10 2.1. DEFINITIONS ..........................................................................................................10 2.2. ALLOWABLE COSTS ..............................................................................................10 2.3. ALL WRITfNGS CONTAINED HEREIN ..................................................................10 2.4. AMENDMENTS .......................................................................................................10 2.5. AMERfCANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, ALSO REFERRED TO AS THE "ADA" 28 CFR PART 35 ......................................10 2.6. APPROVAL ............................r.................................................................................10 2.7. ASSIGNMENT .........................................................................................................10 2.8. ATTORNEYS' FEES ................................................................................................11 2.9. AUDIT ......................................................................................................................11 2.10. CODE REQUIREMENTS ........................................................................................12 2.11. CONFIDENTIALITY/SAFEGUARDING OF INFORMATION ..................................12 2.12. CONFORMANCE ....................................................................................................13 2.13. COPYRIGHT PROVISIONS ....................................................................................13 2.14. DISALLOWED COSTS ............................................................................................13 2.15. DISPUTES ...............................................................................................................13 2.16. DUPLICATE PAYMENT ...............................................................:..........................14 2.17. ETHICS/CONFLICTS OF INTEREST .....................................................................14 City of Federal Way Page i Table of Contents LG09-951-129 11130/2010 2009-2011 Direct-Appropria6on Contract 2.18. GOVERNING LAW AND VENUE ............................................................................14 2.19. INDEMNIFICATION .................................................................................................14 2.20. INDEPENDENT CAPACITY OF THE CONTRACTOR ...........................................14 2.21. INDUSTRIAL INSURANCE COVERAGE ................................................................15 2.22. LAWS ............................................................................:.......................................... 2.23. LICENSING, ACCREDITATION AND REGISTRATION .........................................15 2.24. LIMITATION OF AUTHORITY .................................................................................15 2.25. LOCAL PUBLIC TRANSPORTATION COORDINATION .......................................15 2.26. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS ....................................16 2.27. POLITICAL ACTIVITIES ..........................................................................................16 2.28. PREVAILING WAGE LAW ......................................................................................16 229. PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION ...................16 2.30. PUBLICITY .............................................................................................................. 2.31. RECAPTURE ...........................................................................................................16 2.32. RECORDS MAINTENANCE ....................................................................................16 2.33. REGISTRATION WITH DEPARTMENT OF REVENUE .........................................17 2.34. RIGHT OF INSPECTION ........................_................................................................17 2.35. SAVFNGS :................................................................................................................17 2.36. SEVERABILITY .......................................................................................................17 2.37. SU'RVIVAL ...............................................................................................................17 2.38. TAXES ..................................................................................................................... 2.39. TERMINATION FOR CAUSE / SUSPENSION .......................................................17 2.40. TERMINATION FOR CONVENIENCE ....................................................................18 2.41. TERMfNATtON PROCEDURES ..................._..........................................................18 2.42. WAiVER ...................................................................................................................18 AT'fACHM'ENT !: PROJECT SCOPE OF WORK ..................................................................19 ATTACHMENT II: CERTIFICATION OF THE AVAILABILITY Of FUNDS TO COMPLETE THEPROJECT ....................................................................................................................... 21 ATTACHMENT Ifl: ESTIMATED PROJECT COSTS ............................................................. 23 ATTACHMENT IV: CERTIFICATION OF THE PAYMENT AND REPORTlNG OF PREVAf'LING WAGES ............................................................................................................ 24 ATTACHMENT V: CERTIFt'CATION OF THE INTENT TO E'NTER THE LEADERSHIP IN ENERGY AND ENVIRONMENTAL DESfGN (LEED) CERTLFICATION PROCESS ............. 25 City of Federal Way Page ii Table of Contents LG09-951-129 11/3012010 2009-2011 Direct-Appropriation Contract CONTRACT FACE SHEET Contract Number: LG09-951-129 Washington State Department of Commerce PUBLIC WORKS BOARD 2009-2011 GRANT PROGRAMS—DIRECT-APPROPRIATION PROJECTS 1. Contractor 2. Contractor poing Business As (optional) City of Federal Way N/A PO Box 9817 Federay Way, WA 98063 3. Contractor Representative 4. Public Works Board Representative Patrick Doherty Corina Grigoras, Special Programs Manager, Public Works Board PO Box 9817 PO Box 48319, Olympia, WA 98504-8319 Federay Way, WA 98063 Clare Billings, Managing Director, Contracts Administration Unit PO Box 42525, Ot m ia, WA 98504-2525 5. Contract Amount 6. Funding Source 7. Contract 8. Contract End Date � Start Date December 31, 2020 Contract (provided that funds are re- $5,000,000.00 Federal: ❑ State: � Other: ❑ N/A: ❑ Execution Date appropriated into the 2011- 2013 biennium 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10. Tax ID # 11. SWV # 12. UBI # 13. DUNS # 911462550 14. Contract Purpose The Board and the Contractor have entered into this Contract to undertake a legislatively-approved project that furthers the goals and objectives of Washingtan State, as indicated in the Engrossed Substitute House Bill 12t6, Section 1050 (4), enacted on Ma 15, 2009. The Board, defined as the Washington State Public Works Board, and Contractor acknowledge and accept the terms of this Contract and attachments and have executed this Contract on the date below to start as of the date and year {ast written below. The rights and obtigations of both parties to this Contract are govemed by this Cantract and the following other documents incorporated by reference: Contract Terms and Conditions including ATTACHMENT I: PROJECT SCOPE OF WORK; ATTACHMENT 11: CERTIFICATION OF THE AVAfLABILITY OF FUNDS TO COMPLETE THE PROJECT; ATTACHMENT III: ESTIMATED PROJECT COSTS; ATTACHMENT IV: CERTIFICATION OF THE PAYMENT AND REPORTtNG OF PREVAILING WAGES; and ATTACHMENT V: CERTIFICATION OF INTENT TO ENTER THE LEADERSHIP IN ENERGY AND ENUI'RONMENTAL DESIGN LEED CERTIFICATION PROCESS. FOR THE NTRAGTOR FOR THE PUBLIC WORKS BOARD � -- � Signature Joh aRocque, Executive irector Skip Priest �` �/�''�l� . Print Name Date Mayor APPROVED AS TO FORM ONLY Title This 23` Dav of November, 2010 � �- � � 10 Rob McKenna -�� Attorney General Date Siqnature on File Kathryn Wyatt Assistant Attorney General Ciry of Federal Way Page 1 Contract Face Sheet LG09-951-129 11I30/2010 2009-2011 Direct-Appropriation Contrad CONTRACT TERMS AND CONDITIONS PUBLIC WORKS BOARD 2009-2011 GRANT PROGRAMS-DIRECT-APPROPRIATION PROJECTS Part 1 . SPECIAL TERMS AND CONDITIONS 1.1. DEFINITIONS As used throughout this 2009-2011 Washington State Capital Budget Direct-Appropriation Contract the following terms shall have the meaning set forth below: A. "Contract" shall mean this 2009-2011 Washington State Capital Budget Direct-Appropriation Contract. B. "Contractor" shall mean the entity identified on the Contract face Sheet performing service(s) under this Contract and who is a party to the Contract, and shall include all employees and agents of the Contractor. C. "The Board" shall mean the Washington State Public Works Board created in Revised Code of Washington (RCV1n 43.155.030, and who is a Party to the Contract. � 13. AUTHORITY Acting under the authority of Chapter 43.155 RCW, the Board has awarded the Contractor a 2009- 2011 Washington State Capital Budget Direct-Appropriation grant for a legislatively-approved project. The Engrossed Substitute House Bill 1216, Section 1050 (4), enacted on May 15, 2009, made an appropriation to support the Temporary Public Works Board Grant Program and directed the Board to administer those funds. 1.3. PURPOSE The Board and the Contractor have entered into this Contract to undertake a legislatively-approved project that furthers the goals and objectives o# Washington State. The project will be undertaken by the Contractor and will include the activities identified in ATTACHMENT I: PROJECT SCOPE OF WORK. The project must be undertaken in accordance with the Contract terms and conditions, and all applicable state and local laws and ordinances, which by this reference are incorporated into this Contract as though set forth fully herein. 1.4. ORDER OF PRECEDENCE In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the fol�owing order: A. Applicable federal and State of Washington statutes and regulations. B. Special Terms and Conditions including all the attachments. C. General Terms and Conditions. 1.5. GRANT AMOUNT The Board shall pay an amount not to exceed the awarded grant amount of $5,000,000.00 for the eligible costs necessary for or incidental to the performance of work as set forth in the project activities identified in ATTACHMENT I: PROJECT SCOPE OF WORK. City of Federal Way Page 2 Contract Terms and Conditions LG09-951-129 11I30/2010 2009-2011 Direct-Approp�ation Contract 1.6. CERTIFICATION OF FUNDS A. The release of state funds under this Contract is contingent upon the Contractor certifying that it has expended or has access to funds from other sources as set forth in ATTACHMENT II: CERTIFICATION OF THE AVAILABILITY OF FUNDS TO COMPLETE THE PROJECT to complete all the project activities identified in ATTACHMENT I: PROJECT SCOPE OF WORK. Such sources may consist of a combination of any of the following: i. Loans or grants. ii. Eligible project expenditures prior to the execution of this Contract. iii. Cash dedicated to the project. iv. Funds available through a letter of credit or other binding loan commitment(s). v. Pledges from foundatians or corporations. vi. Pledges from individual donors. vii. The value of real property when acquired solely for the purposes of this project, as established and evidenced by a current market value appraisal perFormed by a licensed, professional real estate appraiser, or a current property tax statement. The Board will not consider appraisals for prospective values of such property for the purposes of calculating the amount of matching fund credit. viii. In-kind contributions, subject to the Board's approval. B. The Contractor shall maintain records sufficient to evidence that it has access to or has expended funds from such sources, and shall make such records available for the Board's review upon reasonable request. 1.7. MODIFICATION TO THE PROJECT COSTS Notwithstanding any other provision of this Contract, the Contractor rnay, at its discretion, make modifications not to exceed fifteen percent (15%) of each cost category item in the ATTACHMEIVT III: ESTIMATED PROJECT COSTS. The Contractor shall notify the Board in writing when making any budget modifications that would exceed fifteen percent (15%0) of any cost category line item as identified in ATTACHMENT lll: ESTIMATED PROJECT COSTS. Nothing in this section shall be construed to permit an increase in the amount of grant as set forth Section 1.5 of this Contract. 1.8. PROJECT EXPENDITURES ELIGIBLE FOR REIMBURSEMENT Payments to the Contractor shall be made on a reimbursement basis only. For the purposes of this Contract, eligible costs shall be construed to mean costs incurred and paid, or costs incurred and payable within thirty (30) days. Only costs that have been incurred on or after May 1`5, 2009, are eligible for reimbursement under this Contract. The Contractor may be reimbursed for eligible costs related to the activities identified in ATfACHMENT I: PROJECT SCOPE OF WORK, in the following cost categories: A. Real property and costs directly associated with such purchase, when purchased or acquired solely for the purposes of the project; B. Design, engineering, architectural, and planning; C. Archaeological/historical review; D. Construction management and construction observation (from external sources only); E. Construction costs including, but not limited to, the following: City of Federal Way Page 3 Contract Terms and CondiUons LG09-951-129 11/30/2010 2009-2011 DirecFAppropria6on Contract i. Site preparation and improvements; ii. Permits and fees; iii. Labor and materials; iv. Taxes on project goods and services; v. Capitalized equipment; vi. Information technology infrastructure; and vii. Landscaping. F. Insurance premiums as required in Section 1.19; G. Other costs authorized` through the tegislation. 1.9. BILLING PROCEDURES AND PAYMENT The Board shall reimburse the Contraetor for eligible project expenditures up to the maximum payable under this Contract. When requesting reimbursement for costs incurred or expenditures made, the Contractor shall subrnit a signed and completetl lnvoice Voucher (Form A-19), refe�encing the ATfACHMENT I: PROJECT SCOPE OF WORK project activity perFormed, and any appropriate documentation. The Invoice Voucher must be certified by an official of the Contractor with authority to bind the Contractor. Each Invoice Voucher must be accompanied by a Project Status Report, which describes, in narrative form, the progress made on the project since the last invoice was submitted, as well as a report of project status to date. The Board will not release payment for any reimbursement request received unless and until the Project Status Report is received. After approving the Invoice Voucher and Project Status Report, the Board shall promptly remit a warrant to the Contractor. The final Invoice Voucher payment shall not occur prior to the completion of all project activities as identified in ATTACHMENT I: PROJECT SCOPE OF WORK. The Contractor shall submit all lnvoice Vouchers and any required documentation to: Contracts Administration Unit Department of Commerce PO Box 42525 Olympia, WA 98504-2525 The Board will pay the Contractor upon acceptance of services provided and receipt of properly completed invoices, which shall be submitted to the Board not more often than monthly. Payment shall be considered timely if made by the Board within thirty (30) calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Contractor. The Board may, in its sole discretion, terminate the Contract or withhold payments claimed by the Contractor for services rendered if the Contractor fails to satisfactorily comply with any term or condition of this Contract. No payments in advance or in anticipation of services or supplies to be provided under this Contract shall be made by the Board. Duplication of Billed Costs. The Contractor shall not bill the Board for services perFormed under this Contract; and the Board shall not pay the Contractor, if the Contractor is entitled to payment or has been or will be paid by any other source, including grants, for that service. City of Federal Way Page 4 Contract Terms and Condi6ons LG09-951-129 11/30/2010 2009-2011 Direct-Appropriadon Contract Disallowed Costs. The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its subcontractors. 1.10. CERTIFIED PROJECT COMPLETION REPORT The Contractor shall complete a Certified Project Completion Report when project activities identified in ATTACHMENT I: PROJECT SCOPE OF WORK are complete. The Board will supply the Contractor with the Certified Project Completion Report forms upon request. The Contractor shall provide the following information to the Board: A. A certified statement of the actual dollar amounts spent, from all funding sources, in completing the project as described in ATTACHMENT I: PROJECT SCOPE OF WORK. B. A certified statement that the project, as described in ATTACHMENT I: PROJECT SCOPE OF WORK, is complete and, if applicable, meets required standards. C. Certification that all costs associated with the project have been incurred and accounted for. Costs are incurred when goods and services are received and/or contract work is perFormed. 1.11. REPORTS The Contractor shall furnish the Board with Project Status Reports when submitting Invoice Vouchers (as described in Section 1.9), Quarterly Project Reports at the end of each quarter, a Certified Project Completion Report at project completion (as described in Section 1.10), and other reports as the Board may require. Failure to file reports as requested may result in termination of this Contract. 1.12. EVALUATION AND MONITORING The Contractor shafl caoperate with and freely participate in any monitoring or evaluation activities conducted by the Board, including site inspections, if necessary. The Contractor may be asked by the Board to provide photographs, eitherhard copy or electronically, which visually depict the progress made on the project. The Baard or the State Auditor and any of their representatives shall have full access to and the right to examine all of the Contractor's records with respect to all matters covered in this Contract. Such representatives shalf 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 (6) years from the date final payment is made hereunder. 1.13. OWNERSHIP OF PROJECT/CAPITAL FACtLITIES The Board 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 Board may bring against the Contractor in recapturing funds expended in violation of this Contract. 1.14. CHANGE OF OWNERSHIP OR USE FOR CONTRACTOR-OWNED PROPERTY The Contractor understands and agrees that any or all assets acquired, constructed, or otherwise improved by the Contractor using the funds under this Contract shall be held and used by the Contractor for the purposes stated in ATTACHMENT I: PROJECT SCOPE OF WORK for a period of at least ten (10) years from the date the final payment is made. City of Federal Way Page 5 Contract Tertns and Conditions LG09-951-129 1113012010 200�2011 Direct-Appropriation Contract For a period of at least ten (10) years from the date the final paymer�t is made, in the event that the Contractor decides to change or transfer ownership of any or all assets acquired, constructed, or otherwise improved by the Contractor using the funds under this Contract, the Contractor agrees that any such decision or action must be submitted in writing and approved by the Board in writing at least thirty (30) days prior to the execution of such decision or action. In the event the Contractor is found to be out of compliance with this section, the Contractor shall repay the principal amount of the grant as stated in Section 1.5, plus interest calculated at the rate of interest on State of Washington general obligation bonds issued most closely to the effective date of the legislation in which the subject asset was authorized. Repayment shall be made pursuant to Section 1.20. Recapture Provision. 1.15. CHANGE OF USE FOR LEASED PROPERTY The Contractor understands and agrees that any facility leased by the Cantractor that is constructed, renovated, or otherwise improved using state funds under this Contract shall be used by the Contractor for the purposes stated in ATTACHMENT I: PROJECT SCOPE OF WORK for a period of at least ten (10) years from the date the final payment is made. In the event the Contractor is found to be out of compliance with this sectian, the Contractor shall repay the principal amount of the grant as stated in Section 1.5, plus interest calculated at the rate of interest on State of Washington general obligation bonds issued most closely to the effective date of the legislation in which the subject facility was authorized. Repayment shall be made pursuant to Section 1.20. Recapture Provision. 1.16. HISTORICAL AND GULTURAL ARTIFACTS In the event that historical or cultural artifacts are discovered at the project site during construction, the Contractor shall irnrnediately stop construction and notify the state historical preservation officer at the Washington State Department of Archaeology and Historic Preservation. In the event that the Contractor finds it necessary to amend ATfACHMENT I: PROJECT SCOPE OF WORK, the Contractor may be required to re-comply with Executive Order 05-05. 1.17. SIGNAGE, MARKERS. AND PUBLICATfONS If, during the period covered by this Contract, the Contractor displays or circulates arty communication, publication, or donor recognition identifying the financial participants in the project, any such communication or publication must identify °The Taxpayers of Washington State" as a participant. 1.18. PREVAILING WAGE LAW The project funded under this Contract is subject to state prevailing wage law (Chapter 39.12 RCV11). The Contractor is advised to consult the Industrial Statistician at the Washington Department of Labor and Industries to determine the prevailing wages that must be paid. The Board is not responsible for determining the prevailing wages applying to this project or for any prevailing wage payments that may be required by law. 1.19. INSURANCE A. Private Organizations The Contractor shall provide insurance coverage as set out in this section. The intent of the required insurance is to protect the State of Washington should there be any Gaims, suits, actions, costs, damages, or expenses arising from any loss, or negligent or intentional act or omission of the Contractor or its subcontractors, or agents of either, while perForming under the terms of this Contract. Cily of Federal Way Page 6 Contract Tertns and Condi6ons LG09-951-129 1113012010 2009-2011 Direct-Appropriation Contract The insurance required shall be issued by an insurance company authorized to do business within the State of Washington. Except for Professional Liability or Errors and Omissions Insurance, the insurance shall name the State of Washington, its agents, o�cers, and employees as additional insureds under the insurance policy. All policies shall be primary to any other valid and collectable insurance. The Contractor shall instruct the insurers to give the Board thirty (30) calendar days advance notice of any insurance cancellation or modification. The Contractor shall submit to the Board within fifteen (15) calendar days of the Contract start date, a certificate of insurance, which outlines the coverage and limits required under this insurance section. During the term of the Contract, the Contractor shall submit renewal certificates not less than thirty (30) calendar days prior to expiration of each policy required under this section. The Contractor shall provide insurance coverage that shall be maintained in full force and effect during the term of this Contract, as follows: Commercial General LiabiliN Insurance Policv. Provide a Commercial General Liability Insurance Policy, including contractual liability, written on an occurrence basis, in adequate quantity to protect against legal liability arising out of Contract activity but no less than $1,000,000 per occurrence. Additionally, the Contractor is responsible for ensuring that any subcontractors provide adequate insurance coverage for the activities arising out of subcontracts. Automobile Liabilitv. In the event that performance pursuant to this Contract involves the use of vehicles, owned or operated by the Contractor or its subcontractors, automobile liability insurance shall be required. The minimum limit for automobile liabitity is $1,000,000 per occurrence, using a Cornbined Single Limit for bodily injury and property damage. Professional Liability, Errors, and Omissions Insurance. The Contractor shall maintain Professional Liability or Errors and Omissions Insurance. The Contractor shall maintain minimum limits of no less than $1,000,000 per occurrence to cover all activities by the Contractor and Jicensed staff employed or under.Contract to the Contractor. The State of Washington, its agents, officers, and employees need not be named as additional insureds under this policy. Fidelitv Insurance. Every officer, director, employee, or agent who is authorized to act on behalf of the Contractor for the purpose of receiving or depositing funds into program accounts or issuing financial documents, checks, or other instruments of payrnent for program costs shall be insured to provide protection against loss: i. The amount of fidelity coverage secured pursuant to this Contract shall be $100,000 or the highest of planned reimbursement far the Contract period, whichever is lowest. Fidelity insurance secured pursuant to this paragraph shall name the Contractor as beneficiary. ii. Subcontractors that receive $10,000 or more per year in funding through this Contract shall secure fidelity insurance as noted aboue. Fidelity insurance secured by subcontractors pursuant to this paragraph shall name the Contractor as beneficiary. The Contractor shall provide, at the Board's request, copies of insurance instruments or certifications from the insurance issuing agency. The copies or certifications shall show the insurance coverage, the designated beneficiary, who is covered, the amounts, the period of City of Federal Way Page 7 Contract Terms and Condi6ons LG09-951-129 11l30/2010 20012011 DirecFAppropria6on Contract coverage, and that the Board will be provided thirty (30) days advance written notice of cancel lation. B. Self-Insured Contractors With prior approval from the Board, the Contractor may provide insurance coverage under a self-insured/liability pool or self-insured risk management program. In order to obtain permission from the Board, the Contractor shall provide: a description of its self-insurance program, and a certificate andior fetter of coverage that outlines coverage, limits, and deductibles. All self-insured risk management programs or self-insured/liability pool financial reports must comply with Generally Accepted Accounting Principles (GAAP) and adhere to accounting standards promulga#ed by; GovernmentakAccounting Standards Board (GASB), Financial Accounting Standards Board (FASB), and iii. The Washington State Auditor's annual instructions for financial reporting. Contractors participating in joint risk pools shall maintain sufficient documentation to support the aggregate claim liability information reported on the balance sheet. The State of Washington, its agents, and employees need not be named as additional insured under a self- insured property/liability pool, if the pool is prohibited from naming third parties as additional insured. Contractor shall provide annually to the Board a summary of coverages and a letter of self- insurance, evidencing continued coverage under Contractor's self-insured/liability pool or self- insured risk management program. Such annual summary of coverage and letter of self- insurance will be provided on the anniversary of the start date of this Contract. Emplovers Liabilitv ("Stoq Gaq°) Insurance. ln addition, the Contractor shall buy employers liability insurance and, if necessary, commercial umbrella liability insurance with limits not less than $1,000,000 each accident for bodily injury by accident of $1,000,000 each employee for bodily injury or disease. Excess Coveraqe. By requiring insurance herein, the Board does not represent that coverage and limits will be adequate to protect Contractor and such coverage and limits shall not limit Contractor's liability under the indemnities and reirnbursements granted to the Board in this Contract. Unemqloyment and Industrial Insurance. The Contractor shall be in full compliance with all state unemployment and industrial insurance laws while perForming work under this Contract. The Board will not be responsible for payment of industrial insurance premiums or for any other claim or benefit for the Contractor, or any subcontractor or employee of the Contractor, which might arise under the industrial insurance laws during performance of this Contract. Protection of Project Propertv. Contractor's Assumption of Risk. The Contractor shall continuously maintain adequate protection of all the project work from damage and shall protect the property from injury or loss arising in connection with this Contract. The entire work of the City of Federal Way Page 8 Contract Temu and Condidons LG09-951-129 11/30/2010 2009-2011 Direct-Appropria6on Contract Contractor shall be at the sole risk of the Contractor. The Contractor may elect to secure fire, extended coverage, and vandalism insurance or all-risk insurance to cover the project work during the course of construction. The Contractor shall take all necessary precautions for the safety of employees working on the project, and shall comply with all applicable provisions of federal, state, and local safety laws and building codes to prevent accidents or injuries to persons, on, about, or adjacent fo the premises where the work is being perFormed. 1.20. RECAPTURE PROVISION In the event that the Contractor fails to expend state funds in accordance with state law and/or the provisions of this Contract, the Board reserves the right to recapture state funds in an amount equivalent to the extent of noncompliance. Accordingly, if construction of the Performing Arts and Conference Center on the property purchased with this grant is not completed by December 31, 2020, the Contractor shafl retum the entire grant amount, as stated `in Section 1.5, to the Board. Repayment by the Contractor of state funds under this recapture provision shall occur within thirty (30) days of demand. In the event that the Board is required to institute proceedingsto enforce this recapture provision, the Board shall be entitled to its cost thereof, including reasonable attomey's fees. 1.21. REDUCTION IN FUNDS In the event state funds appropriated for the work contemplated under this Contract are withdrawn, reduced, or limited in any way by the Washington State Governor or Legislature during the Contract period, the parties hereto shall be bound by any such revised funding limitations as implemented at the discretion of the Board, and shall meet and renegotiate the Contract accordingly. 1.22. REAPPROPRIATION The parties hereto understand and agree that any state funds not expended by June 30, 2011, including the ten percent (10%) retainage as described in Section 1.9, will lapse on that date unless specifically reappropriated by the Washington State Legislature or Govemor. The Board will make all necessary efforts to seek reappropriation of funds into the 2011-2013 biennium. If funds are so reappropriated, the Board's obligation under the terms of this Cantract shall be contingent upon the terms of such reappropriation. City of Federal Way Page 9 Caitract Terms and Conditions LG09-951-129 1113�I2010 2009-2011 Direct-Appropria6on Contract Part 2. GENERAL TERMS AND CONDITIONS 2.1. DEFINITIONS As used throughout this Contract, the following terms shall have the meaning set forth below: A. "Authorized Representative" shall mean the Public Works Board Chair and/or the designee authorized in writing to act on the Chair's behalf. B. "Contractor" shall mean the entity identified on the face sheet performing service(s) under this Contract, and shall include all employees and agents of the Contractor. C. "The Board" shall mean the Washington State Public Works Board created in Revised Code of Washington (RC1l� 43.155.030, and who is a Party to the Contract. D. "Personal Information" shall mean informafion identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of govemmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. E. "State" shall mean the state of Washington. F. "Subcontractor" shall mean one not in the employment of the Contractor, who is performing all or part of those services under this Contract under a separate contract with the Contractor. The terms "subcontracto�' and "subcontractors" mean subcontractor(s) in any tier. 2.2. ALLOWABLE COSTS Costs allowable under this Contract are actual expenditures according to an approved budget up to the maximum amount stated on the Contract Award or Amendment Faee Sheet. 2.3. ALL WRITINGS GONTAINED HEREIN This Contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter af this Contract shall be deemed to exist or to bind any of the parties hereta 2.4. AMENDMENTS This Gontract may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 2.5. AMERICANS WITH DISABILITIES ACT (ADA) O'F 1990. 'PUBLIC LAW 101-336, ALSO REFERRED TO AS THE "ADA" 28 CFR PART 35 The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. 2.6. APPROVAL This Contract shall be subject to the written approval of the Board's Authorized Representative and shall not be binding until so approved. The Contract may be altered, amended, or waived only by a written amendment executed by both parties. 2.7. ASSIGNMENT Neither this Contract, nor any claim arising under this Contract, shall be transferred or assigned by the Contractor without prior written consent of the Board. Ciry of Federal Way Page 10 Contrad Terms and Conditions LG09-951-129 11/30/2010 2009-2011 Direct-Appropria6on Contract 2.8. ATTORNEYS' FEES Unless expressly permitted under another provision of the Contract, in the event of litigation or other action brought to enforce Contract terms, each party agrees to bear its own attorneys fees and costs. 2.9. AUDIT A. General Requirements Contractors are to procure audit services based on the following guidelines. The Contractor shall maintain its records and accounts so as to facilitate the audit requirement and shall ensure that Subcontractors also maintain �auditable records. The Contractor is responsible for any audit exceptions incurred by its own organization or that of its Subcontractors. The Board reserves the right to recover from the Contractor all disallowed costs resulting from the audit. As applicable, Gontractors required to have an audit must ensure the audits are perforrned in accordance with Generally Accepted Auditing Standards (GAAS); Government Auditing Standards (the Revised Yellow Book) developed by the Comptroller GeneraL Responses to any unresolved management findings and disallowed or questioned costs shall be included with the audit report. The Contractor must respond to the Board requests for information or corrective action concerning audit issues within thirty (30) days of the date of request. B. State Funds Req,uirements Contractors expending $100,000 or more in total state funds in a fiscal year must have a financial audit as defined by Government Auditing Standards (The Revised Yellow Book} and according to Generally Accepted Auditing Standards (GAAS). The Schedule of State Financial Assistance must be included. The schedule includes: Contractor agency name State program name BARS account number Contractor Agency contract number Contract award amount including amendments (total grant award) Beginning balance Current year revenues Current year expenditures Ending balance Program total If the Contractor is a state or local government entity, the Office of the State Auditor shall conduct the audit. Audits of non-prafit organizations are to be conducted by a certified public accountant selected by the Contractor. The Contractor shall include the above audit requirements in any subcontracts. In any case, the Contractor's financial records must be available for review by the Board. City of Federal Way Page t t Contract Terms and Conditions LG09-951-129 11/30I2010 2009-2011 Direct-Appropria6on Contrad C. Documentation Requirements The Contractor must send a copy of any required audit Reporting Package as described in OMB Circular A-133, Part G, Section 320(c) no later than nine (9) months after the end of the Contractor's fiscal year(s) to: Department of Commerce ATTN: Audit Review and Resolution Office 906 Columbia Street SW, Fifth Floor PO Box 48300 Olympia WA 98504-8300 In addition to sending a copy of the audit, when applicable, the Contractor must include: • Corrective action planfor audit findings within three (3) months of the audit being received by the Bqard. • Copy of the Management Letter. 2.10. CODE REQUIREMENTS All construction and rehabilitation projects must satisfy the requirements of applicable local, state, and federal building, mechanical, plumbing, fire, energy and barrier-fi codes. Compliance with the Americans with Disabilities Act of 1990 28 C.F.R. Part 35 will be required, as specified by the local building Department. 2.11. CONFIDENTIALITYlSAFEGUARDING OF INFORMATION A. "Confidential Information" as used in this section includes: a. All material prouided to the Contractor by the Board that is designated as "confidential" by the Board; b. All rnateriaf produced by the Contractor that is designated as "confidential" by the Board; and c. All personal inforrnation in the possession of the Contractor that may not be disclosed under state or federal law. "Personal information" includes but is not limited to information related to a person's name, health, finances, education, business, use of govemment services, addresses, telephone numbers, social securiry number, driver's license number and other identifying numbers, and "Protected Health Information" under the federal Health lnsurance Portability and Accountability Act of 1996 (HIPAA). B. The Contractor shall comply with all state and federal laws related to the use, sharing, transfer, sale, or disclosure of ConfidentiaC Information. The Contractor shall use Confidential tnformation solely for the purposes of this Contract and shall not use, share, transfer, sell or disclose any Confidential Information to any #hird party except with the prior written consent of the Board or as may be required by law. The Contractor shall take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto. Upon request, the Contractor shalJ provide the Board with its policies and procedures on confidentiality. The Board may require changes to such policies and procedures as they apply to this Contract whenever the Board reasonably determines that changes are necessary to prevent unauthorized disclosures. The Contractor shall make the changes within the time period specified by the Board. Upon request, the Contractor shall immediately retum to the Board any Confidential Information tMat the Board reasonably determines has not been adequately protected by the Contractor against unauthorized disclosure. C. Unauthorized Use or Disclosure. The Contractor shall notify the Board within five (5) working days of any unauthorized use or disclosure of any confidential information, and shall take necessary steps to mitigate the harmful effects of such use or disclosure. City of Federal Way Page 12 ConVact Terms and Conditions LG09-951-129 11l30/2010 2009-2011 Direct-Appropriation Contrad 2.12. CONFORMANCE If any provision of this Contract violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. 2.13. COPYRIGHT PROVISIONS Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the Board. The Board shall be considered the author of such Materials. In the event the Materials are not considered "works for hire" under the U.S. Copyright laws, the Contractor hereby irrevocably assigns all right, title, and interest in all Materials, including all intellectual property rights, moral rights, and rights of publicity to the Board effective from the moment of creation of such Materials. "Materials" means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the ability to transfer these rights. For Materials that are detivered under the Contract, but that incorporate pre-existing materials not produced under the Contract, the Contractor hereby grants to the Board a nonexclusive, royalty- free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and public{y display. The Contractor warrants and represents that the Contractor has all rights and permissions, including inteflectual property rights, moral rights and rights of publicity, necessary to grant such a license to the Board. The Contractor shall exert alf reasonable effort to advise the Board, at the time of delivery of Materials fumished under this Contract, of all known or potentiaf invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Contract. The Contractor shall provide the Board with prompt written notice of each notice or claim of infringement received by the Gontractor with respect to any Materials delivered under this Gontract. The Board shall have the right to modify or remo�e any restrictive markings placed upon the Materials by the Contractor. 2.14. DISALLOWED` COSTS The Gontractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors. 2.15. DISPUTES Except as otherwise provided in this Contract, when a dispute arises befinreen the parties and it cannot be resolved by direct negotiation, either party may request a dispute hearing with the Chair of the Board, who may designate a neutral person to decide the dispute. The request for a dispute hearing must: • be in writing; • state the disputed issues; • state the relative positions of the parties; • state the Contractor's name, address, and Contract number; and • be mailed to the Chair and the other party's (respondenYs) Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Chair or the Chair's designee and the requestor within five (5) working days. City M Federal Way Page 13 Con6ract Tertns and Conditions LG09-951-129 11/3012010 2009-2011 Dired-Appropriafion Contract The Chair or designee shall review the written statements and reply in writing to both parties within ten (10) working days. The Chair or designee may extend this period if necessary by notifying the parties. The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this Contract shall be construed to limit the parties' choice of a mutually acceptable altemate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above. 2.16. DUPLICATE PAYMENT The Contractor certifies that work to be performed under this Contract does not duplicate any work to be charged against any other contract, subcontract, or other source. 2.17. ETHICS/CONFLICTS OF INTEREST In performing underthis Contract, the Contractor shall assure compliancewith the Ethics in Public Service Act (Chapter 42.52 RC11� and any other applicable state or federal law related to ethics or conflicts of interest. 2.18. GOVERNING LAW AND VENU!E This Contract shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. 2.19. INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the state of Washington, the Board, aN other agencies of the state and all officers, agents and employees of the state, from and against all claims or damages for injuries to persons or property or death arising out of or incident to the Contractor's performance or failure to perform the Contract. The Contractor's obligation to indemnify, defend, and hold harmfess includes any claim by the Contractor's agents, employees, representatives, or any Subcontractor or its agents, employees, or representatives. The Contractor's obligation to indemnify, defend, and hold harmless shall not be eliminated by any actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers. Subcontracts shall include a comprehensive indemnification clause holding harmtess the Contractor, the Board, the state of Washington, its officers, employees and authorized agents. The Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the state and its agencies, o�cers, agents or employees. 2.20. INDEPENDENT CAPACITY OF THE CONTRACTOR The parties intend that an independent contractor relationship will be created by this Contract. The Contractor and its employees or agents performing under this Contract are not employees or agents of the state of Washington ar the Board. The Contractor will not hold itself out as or claim to be an officer or employee of the Board or of the state of Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and control of the work will be solely with the Contractor. City of Federal Way Page 14 Contrad Terms and Conditlons LG09-951-129 11/3012010 2009-2011 Direct-Appropria6on Contract 2.21. INDUSTRIAL INSURANCE COVERAGE The Contractor shall comply with all applicable provisions of Title 51 RCW, Industrial Insu�ance. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the Board may collect from the Contractor the full amount payable to the Industrial Insurance Accident Fund. The Board may deduct the amount owed by the Contractor to the accident fund from the amount payable to the Contractor by the Board under this Contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I} Division of Insurance Services. This provision does not waive any of L&I's rights to collect from the Contractor. 2.22. LAWS The Contractor shall compfy with all applicable laws, ordinances, codes, regulations and policies of local and state and federal governments, as now or hereafter amended including, but not limited to: Washington State Laws and Regulatians Affirmative action, RCW 41.06.020 (14). Boards of directors or officers of non-profit corporations — Liability - Limitations, RCW 4.24.264. Disclasure-campaign finances-lobbying, Chapter 42.17 RCW. Discrimination-human rights commission, Chapter 49.60 RCW. Ethics in public service, Chapter 42.52 RCW. Housing assistance program, Chapter 43.185 RCW Interlocal cooperation act, Chapter 39.34 RCW. Noise control, Chapter 70.107 RCW. Office of minority and women's business enterprises, Chapter 39.19 RCW and Chapter 326-02 WAC. Open public meetings act, Chapter 42.30 RCW. Prevailing wages on public works, Chapter 39.12 RCW. Public records act, Chapter 42.56 RCW. Relocation assistance - real' property acquisition policy, Chapter 8.26 RCW. Shoreline management act of 1971, Chapter 90.58 RCW. State budgeting, accounting, and reporting system, Chapter 43.88 RCW. State building code, Chapter 19.27 RCW and Energy-related building standards, Chapter 19.27A RCW, and Provisions in buildings for aged and handicapped persans, Chapter 70.92 RCW. State Coastal Zone Management Program, Publication 01-06-003, Shorelands and Environmental Assistance Program, Washington State Department of Ecology. State environmental policy, Chapter 43.21 C RCW. State Executive Order 05-05 Archeological and Cultural Resources. 2.23. LICE'NSING. ACCREDITATION AND REGISTRATION The Contractor sha{I compty with all applicable local, state, and federal licensing, accreditation and registration requirements or standards necessary for the performance of this Contract. 2.24. LIMITATION OF AUTHORtTY Only the Authorized Representative or Authorized Representative's designee by writing (designation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Contract. 2.25. LOCAL PUBLIC TRANSPORTATION COORDI(VATION Where applicable, Contractor shall participate in local public transportation forums and implement strategies designed to ensure access to services. City of Federal Way Page 15 Contract Temu and Conditions LG09-951-129 1113012010 2009-2011 Direct-Appropria6on Contract 2.26. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS During the performance of this Contract, the Contractor shall comply with all federal, state, and local nondiscrimination laws, regulations and policies. In the event of the Contractor's non- compliance 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 Board. The Contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein. 2.27. POLITICAL ACTIVITIES Political activity of Contractor employees and officers are limited by the State Campaign Finances and Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 -1508. No funds may be used for working for or against ballot measures or for or against the candidacy of any person for public office. 2.28. PRENAILING WAGE LAW The Contractor certifies that all contractors and subcontractors performing work an the Project shall comply with state Rrevailing Wages on Public Works, Chapter 39.12 RCW, as applicable to the Project funded by this Contract, including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages"` and "Affidavit of Wages Paid° as required by RCW 39.12.040. The Contractor shaH maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for the Board's review upon request. 2.29. PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION The funds provided under this Contract shall not be used in payment of any bonus or commission for the purpose of obtaining approval of the application for such funds or any other approval or concurrence underthis Contract provided, however, that reasanable fees or bona fide technical consultant, manageriaP, or other such services, other than actual solicitation, are not hereby prohibited if othenivise eligible as project costs. 2.30. PUBLICITY The Contractor agrees not to publish or use any advertising or publicity materials in which the state of Washington or the Board's name is mentioned, or language used from which the connection with the state of Washington's or the Board's name may reasonably be inferred or implied, without the prior written consent of the 'Board. 2.31. RECAPTURE In the event that the Contractor fails to perform this Contract in accordance with state laws, federal laws, and/or the provisions of this Contract, the Board reserves the right to recapture funds in an amount to compensate the Board for the noncompliance in addition to any other remedies available at law or in equity. Repayment by the Contractor of funds under this recapture provision shatl occur within the time period specified by the Board. In the alternative, the Board may recapture such funds from payments due under this Contract. 2.32. RECORDS MAINTENANCE The Contractor shall maintain all books, records, documents, data and other evidence relating to this Contract and performance of the services described herein, including but not limited to accounting procedures and practices which sufficiently and properly reflect all direct and indirect Ciry of Federal Way Page 16 Contrad Temu and Conditions LG09-951-129 11130/2010 2009-2011 Direct-Appropria6on Contract costs of any nature expended in the performance of this Contract. Contractor shall retain such records for a period of six years following the date of final payment. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been finally resolved. 2.33. REGISTRATION WITH DEPARTMENT OF REVENUE If required by law, the Contractor shall complete registration with the Washington State Department of Revenue. 2.34. RIGHT OF INSPECTION At no additional cost to the Board, all records relating to the Contractor's performance under this Contract shall be subject at all reasonable times to inspection, review, and audit by the Board, the Office of the State Auditor, and federal and state officials so authorizetl by law, in order to monitor and evaluate performance, compliance, and quality assurance under this Contract. The Contractor shall provide access to its facilities for this purpose. 2.35. SAVINGS in the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Contract and prior to normal completion, the Board may terminate the Contract under the 'Termination for Convenience" clause, without the ten business day notice requirement. In lieu of termination, the Contract may be amended to reflect the new ftanding limitations and conditions. 2.36. SEVERABILITY If any provision of this Contraet or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Contract that can be given effect rnrithout the invalid provision, if such remainder conforrrrs to the requirements of law and the fundamental purpose of this Contract and to this end the provisions of this Contract are declared to be severable. 2.37. SURYIVAL The terms, conditions, and warranties contained in this Contract that by their sense and context are intended to survive the completion of the perFormance, cancellation or termination of this Contract shall so survive. 2.38. TAXES All payments accrued on account of payroll taxes, unemployment contributions, the Contractor's income or gross receipts, any other taxes, insurance or expenses for the Contractor or its staff shall be the sole responsibility of the Contractor. 2.39. TERMINATION FOR CAUSE / SUSPENSION In event the Board determines that the Contractor failed to comply with any term or condition of this Contract, the Board may terminate the Contract in whole or in part upon written notice to the Contractor. Such termination shall be deemed "for cause." Termination shall take effect on the date specified in the notice. In the alternative, the Board upon written notice may allow the Contractor a specific period of time in which to correct the non-compliance. During the corrective-action time period, the Board may suspend further payment to the Contractor in whole or in part, or may restrict the Contractor's right City of Federal Way Page 17 Contract Tertns and Conditions LG09-951-129 1113012010 2009-2011 Direct-Appropriation Contract to pertorm duties under this Contract. Failure by the Contractor to take timely corrective action shall allow the Board to terminate the Contract upon written notice to the Contractor. "Termination for Cause" shall be deemed a"Termination for Convenience" when the Board determines that the Contractor did not fail to comply with the terms of the Contract or when the Board determines the failure was not caused by the Contractor's actions or negligence. If the Contract is terminated for cause, the Contractor shall be liable for damages as authorized by law, including, but not limited to, any cost difference between the original contract and the replacement contract, as well as all costs associated with entering into the replacement contract (i.e., competitive bidding, rnailing, advertising, and staff time). 2.40. TERMINATION FOR GONVENIENCE Except as otherwise prouided in this Contract the Board may, by ten (10) business days written notice, beginning on the second day after the mailing, terminate this Contract, in whole or in part. If this Contract is so terminated, the Board shall be liable only for payment required under the terms of this Contract for services rendered or goods delivered prior to the effective date of termination. 2.41. TERMINATION PROCEDURES, After receipt of a notice of termination, except as otherwise directed by the Board, the Contractor shalL A. Stop work under the Contract on the date, and to the extent specified, in the notice; B. Place no further orders or subcontracts for materials, services, or facilities related to the Contract; C. Assign to the State all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the Board 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 the Contractor to settle such claims must have the prior written approval of the Board; and D. Preserve and transfer any materials, Contract deliverables and/or the Board property in the Contractor's possession as directed by the Board. Upon termination of the Contract, the Board shall pay the Contractor for any service provided by the Contractor under the Contract prior to the date of termination. The Board may withhold any amount due as the Board reasonably determines is necessary to protect the Board against potential loss or liability resulting from the termination. The Board shall pay any withheld amount to the Contractor if the Board later determines that loss or liability wifl not occur. The rights and remedies of the Board under this section are in addition to any other rights and remedies provided under this Contract or otherwise provided under law. 2.42. WAIVER Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Contract unless stated to be such in writing and signed by Authorized Representative of the Board. City of Federal Way Page 18 Contrad Tertns and Conditions LG09-951-129 11/3012010 2009-2011 Direct-Appropriafion Contract ATTACHMENT I: PROJECT SCOPE OF WORK PUBLIC WORKS BOARD 2009-2011 GRANT PROGRAMS—DIRECT-APPROPRIATION PROJECTS Contractor: City of Federal Way Contract Number: LG09-951-129 Project Title: Federaf Way Urban Infrastructure The project's scope of work is comprised of the following project activities: Purchase of real propertv for $5,375,000: Closing on the acqu:�sition will be on or before December 30, 2010. 100 000: These improvements are projected to be completed by mid 2011. The proposed infrastructure improvements will consist of: sidewalk widening, installation of City Center standard street fights, and planting of City Center standard street trees and other landscaping. The total cost witt include in-kind design and installation. If the above scope of work includes engineering, planning, or design activities, the Contractor shall make alf plans and documents funded in whole or in part by this Contract available for the Board's review upon reasonable request. The project will be considered complete when all the project activities identified in the above scope of work are complete. Additionally, the project performance measures listed below must be accomplished by December 31, 2020. Construction of the Performing Arts and Conference Center will be completed by the end of December 2020. Upon acquisition of the site, a capital raising campaign wilt commence, including potential identification of any public-sector resources. This could take 2-5 years. Once sufficient capital has been identified, the design phase will commence, lasting approximately 1 year. Environmental compliance and permitting would follow, again lasting approximately 1 year. Finafly construction would ensue, lasting up to 2 years. Once completed, this project will greatly enhance the local economy by attracting pertormance and conference events that currently cannot be accommodated in the City of Federal Way. In addition, tfiis significant investment and development within a substantially under-developed portion of the Federal Way City Center will serve as a catalyst to help induce additional private and public development to achieve the City's Comprehensive Plan vision of a more densely developed, mixed-use, pedestrian-friendly, and transit-oriented City Center. In the event that the Contractor fails to complete the construction of the Performinq Arts and Conference Center on the propertv qurchased with this grant by December 31 2020 the Contractor shall retum the entire prant amount, as stated in Section 1.5, to the Board. City of Federal Way Page 19 Attachment I: Project Scope of Work LG09-951-129 11130/2010 200�2011 Direct-Appropriation Caitrad The Contractor, by its signature below, certifies that the projecYs scope of work and performance measures set forth above have been reviewed and approved by the Contractor's governing body as of the date and year written below. r /� G � SIGNATURE Skip Priest NAM E Mayor TITLE /��7/IG DATE Ciry of Federal Way Page 20 Attachment I: Project Scope of Work LG09-951-129 11/30/2010 2009-2011 Direct-Appropriation Contract ATTACHMENT II: CERTIFICATION OF THE AVAILABILITY OF FUNDS TO COMPLETE THE PROJECT PUBLIC WORKS BOARD 2009-2011 GRANT PROGRAMS—DIRECT-APPROPRIA710N PROJECTS The Contractor, by its signature below, certifies that project funding from sources other than those provided by this Contract and identified above has been reviewed and approved by the Contractor's governing body or board of directors, as applicable, and has either been expended for eligible project expenses, or is committed in writing and available and wifl remain committed and available solely and specifically for carrying out the activities described in ATTACHMENT I: PROJECT SCOPE OF WORK, as of the date and year written below. The Contractor shall maintain records sufficient to evidence that it has City of Federal Way Page 21 Attachment II: Availability of Funds Certification L609-951-129 11I3012010 2009-2011 Direct-Appropriation Contract Contractor: City of Federal Way Contract Number: LG09-951-129 expended or has access to the funds needed to complete the activities described in ATTACHMENT I: PROJECT SCOPE OF WORK, and shall make such records available for the Board's review upon reasonable request. / SIGNATURE Skip Priest NAME Mayor TITLE l�l�/1v DATE City of Federal Way Page 22 Attachment II: Availability of Funds Certification LG09-951-129 11/30I2010 2009-2011 Direct-Appropria6on Contract ATTACHMENT III: ESTIMATED PROJECT COSTS PUBLIC WORKS BOARD 2009-2011 GRANT PROGRAMS—DIRECT-APPROPRIATION PROJECTS The Contractor, by its signature below, certifies that the Estimated Project Costs set forth above have been reviewed and approved by the Contractors goveming body or board of directors, as applicable, as of the date nd year written belaw. r � IGNATURE Skin Priest NAME Mavor TITLE l�/7�1v DATE City of Federal Way Page 23 Attachment III: Estimated Project Costs LG09-951-129 11/30/2010 2009-2011 DirecFAppropriabon Contract Contractor: City of Federal Way Contract Numbet: LG09-951-129 ATTACHMENT IV: CERTIFICATION OF THE PAYMENT AND REPORTING OF PREVAILING WAGES PUBLIC WORKS BOARD 2009-2011 GRANT PROGRAMS—DIRECT-aPPROPRIATION PROJECTS Contractor: City of Federal Way Contract'Number: LG09-951-129 The Contractor, by its signature below, certifies that all contractors and subcontractors performing work on the project as described in ATTACHMENT I: PROJECT SCOPE OF WORK shall comply with prevailing wage laws set forth in Chapter 39.12 RCW, as applicable to the project funded by this Contract, including but not timited to the filing of the "Statement of lntent to Pay Prevailing Wages" and "Affidavit of Wages Paid" as required by RCW 39_12.040. The Contractor shall maintain records sufficient to evidence compliance with Chapter 39,12 RCW, and shall make such records available for the Board's review upon request. If any state funds are used by the Contractor for the purpose of construction, applicable State Prevailing Wages mustbe paid. The Contractor, by its signature below, certifies that the declaration set forth above has been reviewed and approved by the Contractor's governing body as of the date and year written below. � � � _ NAT E Skiu Priest NAM'E Mayor TITLE (� f � Iin DATE City of Federal Way Page 24 Attachment IV: Prevailing Wages Certfication LG09-951-129 11I3012010 2009-2011 Direct-AppropriaUon Contrad ATTACHMENT V: CERTIFICATION OF THE INTENT TO ENTER THE LEADERSHIP IN ENERGY AND ENVIRONMENTAL DESIGN (LEED) CERTIFICATION PROCESS PUBUC WORKS BOARD 2009-2011 GRANT PROGRAMS—DIRECT-APPROPRIATION PROJECTS Contractor: City of Federal Way Contract Number: LG09-951-129 The Contractor, by its signature below, certifies that it will enter into the Leadership in Energy and Environmental Design (LEED) certification process, as stipulated in RCW 39.35D, as applicable to the project described in ATTACHMENT I: PROJECT SCOPE OF WORK funded by this Contract. The Contractor shall, upon receipt of LEED certification by the United States Green Building Council, provide documentation of such certification to the Board. The Contractor, by its signature'below, certifies that the declaration set forth above has been reviewed and approved by the Contractor's goveming body or board of directors, as applicable, as of the date and year written below. SIGNATURE ' �pgl.E OT APP� NAME ro j ect) . Xempt p TITLE DATE City of Federal Way Page 25 Attachment V: LEED Certifica6on LG09-951-129 11130/2010 2009-2011 Direct-Appropria6on Contract