HomeMy WebLinkAboutR-1992-D6150 Richardson’s / Study / Grant / DOE4
RESOLUTION NO. In 6 1 5 0
A RESOLUTION authorizing the Yakima Air Terminal Manager to
execute Washington Department of Ecology Grant
No. G9200294 for the Richardson's-Airway Remedial
Investigation/Feasibility Study.
WHEREAS, on July 25, 1991, the Washington State
ment of Ecology formally designated the Yakima Air
and Richardson's Airway, Inc. as "Potentially Liable
Depart -
Terminal
Persons"
pursuant to the Washington Model Toxics Control Act, RCW
Chapter 70.105D, based upon suspected pesticide contamination
at the Richardson's Airway site; and
WHEREAS, subsequent to that determination, the Department
of Ecology initiated enforcement order proceedings; and
WHEREAS, on December 3, 1991, the City Council passed a
resolution authorizing the Yakima Air Terminal to execute an
Agreed Order regarding remedial action
Airway Airport facility; and
WHEREAS, the Agreed Order, which
January 30, 1992, required the Yakima Air
at the Richardson's
became effective on
Terminal and Rich-
ardson's Airway, Inc. to conduct a Remedial
Investiga-
tion/Feasibility Study (RI/FS), which mandates site testing,
analvs:i and completion of several other investigative tasks
before trie_ actual environmental cleanup process can occur;
and
WHEREAS, as contemplated by the Agreed Order and pursuant
to the authorization from both the Yakima City Council and the
Yakima County Commissioners, the Yakima Air Terminal solicited
proposals from environmental consultants to conduct ,the work
required by the Agreed Order; and
WHEREAS, on May 21, 1992, the Washington State Department
of Ecology notified the Yakima Air Terminal that it had be
awarded a grant in the amount of $103,543.00 to cover a por-
tion of the Richardson's Airway Remedial z,„4,nvestiga-
tion/Feasibility Study; and
(res/disburse.rp)
WHEREAS, the Yakima Air Terminal is required to execute
the grant document in order to receive the grant funds, now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Yakima Air Terminal Manager is hereby authorized and
directed to execute Grant No. G9200294 for the Richardson's
Airway Remedial Investigation/Feasibility Study, a copy of
which is attached hereto as Exhibit A and incorporated by
reference herein.
ADOPTED BY THE CITY COUNCIL this 4714
day of
1992.
Mayor
ATTEST: ATTEST:
(res/disburse.rp)
Grant No. 6, V(rt)Zcl`f
Richardson's Airway RI/FS
Agreement with Yakima Air Terminal
STATE OF WASHINGTON DEPARTMENT OF ECOLOGY
AND
YAKIMA AIR TERMINAL
This is a binding agreement entered into by and between the state of Washington
Department of Ecology, hereinafter referred to as the DEPARTMENT, and Yakima Air
Terminal, hereinafter referred to as the RECIPIENT, to carry out the activities
described herein.
RECIPIENT ADDRESS Yakima Air Terminal
2300 West Washington Avenue
Yakima, WA 98903
RECIPIENT REPRESENTATIVE Lawrence A. Peterson
Deputy County Prosecutor
(509) 454-5374
RECIPIENT PROJECT COORDINATOR Bruce Loy, Air Terminal Manager
(509) 575-6149
DEPARTMENT PROJECT OFFICER Steve Loftness, (206) 459-6417 (SCAN 585)
DEPARTMENT FAX (206) 459-6445 (SCAN 585)
DEPARTMENT TECHNICAL STAFF Dick Bassett, (509) 454-7389 (SCAN 558)
FUNDING SOURCE Local Toxics Control Account
MAXIMUM ELI01�--E COST $207,086
STATE GRANT SHARE $103,543
RECIPIENT SHARE $103,543
STATE MAXIMUM GRANT PERCENT 50%
SECURITY FOR PERFORMANCE 5% of each invoice
FEDERAL TAX IDENTIFICATION NO. 91-1183898
For the purpose of this agreement, the RECIPIENT will be allowed to match the
DEPARTMENT share with direct contributed services, accordance with pre -application
instructions.
The effective date of this grant is January 30, 1992. Any work performed prior to
the effective date of this agreement without prior written authorization and
specified in the Scope of Work will be at the sole expense and risk of the
RECIPIENT.
This agreement shall expire no later than March 31, 1993.
1 of 7
Grant No. 6 ! 2o®Zvi
Richardson's Airway RI/FS
Agreement with Yakima Air Terminal
SCOPE OF WORK
A. PROJECT TITLE:
Richardson's Airway Remedial Investigation/Feasibilit:y Study
B. PROJECT DESCRIPTION:
Richardson's Airway, Inc. has operated an aerial pesticide applicator service
on Yakima Air Terminal property from 1954 to the present. Yakima Air Terminal
is a joint venture of the city of Yakima and Yakima County. Typically, the
applicator airplane spray tank was filled with pesticide at the facility and
upon completion of the aerial spraying, washed down in a general "washdown
area" southeast of the company's office/hangar. In 1984 the general "washdown
area" was estimated to be about five (5) feet by twenty (20) feet in size.
Additional testing by the DEPARTMENT in 1988 revealed the size of the
contamination to be larger. Contaminants include:
• Chlordane
• DDT
• DDE
• Dieldrin
• Endosulfan
• Endrin
• 2,4-D
Separately, but in the same general "washdown area", an acutely dangerous
cher__ herbicide product, 2,4-Dichlorophenol, spilled from a drum and
conta::._:a:ed a large area of soil and vegetation about forty (40) feet: long
and five (5) to ten (10) feet wide. Additional contaminants in this area
include:
• Aldrin
• Disulfoton
• MCPA
Somewhat removed from the "washdown area" is an area that operated as a burn
pit for many years, which contains ash from burned pesticide containers.
Ethyl parathion is present in the soil in amounts above the groundwater
cleanup level (but below the soil cleanup level). The groundwater below this
area should be tested..
On January 30, 1992, Agreed Order No. DE91TC-C455 was signed by the
DEPARTMENT, Yakima Air Terminal, and Richardson's Airway, Inc. The order
directed the respondents to conduct a Remedial Investigation/Feasibility Study
of the site, consistent with WAC 173-340-350.
2 of 7
Grant No. G q200 Zq y
Richardson's Airway RI/FS
Agreement with Yakima Air Terminal
C. MAJOR PROJECT TASKS:
TASK 1 PROJECT MANAGEMENT (Consultant)
A. Conduct project administration including scheduling, staffing,
budget oversight and tracking, project status communications, and
invoicing.
B. Develop project strategies with the RECIPIENT and Richardson's
Airway, Inc.
C. Meet and negotiate with the DEPARTMENT.
TASK 2 PREPARATION FOR INTERIM CLEANUP ACTION
A. Analytically ascertain if spill residues of 2,4-D remain in the
washdown area and are subject to land disposal restrictions.
B. If such residues are found, arrange to dispose of material before
May 8, 1992 deadline.
TASK 3 PROJECT MANAGEMENT (RECIPIENT)
A. Oversee and review the work of the consultant.
B. Support and augment consultant's effort with local government
resources, if efficiencies or cost savings are obtainable.
RI/FS WORK PLAN PREPARATION
A Prepare Sampling & Analysis Plan.
B. Prepare Quality Assurance Project Plan.
C. Prepare Health and Safety Plan.
D. Prepare Community Relations Plan.
E. Prepare Data Management Plan.
F. Prepare Site Characterization.
G. Prepare Preliminary Risk Assessment.
TASK 5 SITE INVESTIGATION
A. Sample existing wells located on Richardson's Airway leased area.
B. Revise Scope of Work, if ground water contamination is discovered.
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Grant_ No.
Richardson's Airway RI/FS
Agreement with Yakima Air Terminal
TASK 6 RISK ASSESSMENT
A. Assess site -related risks using MTCA Cleanup Standards and present
state of toxicological information.
B. Assess existence, nature, and magnitude of chemical exposure and
potential toxic effects.
TASK 7 CLEANUP ACTION ALTERNATIVES
A. Screen up to five preliminary remedial measures including the no
action alternative to eliminate those that cannot be implemented
technically at the site.
B. Evaluate realistic treatment process options for each remedial
technology.
C. Develop a list of preferred cleanup alternatives.
D. Evaluate alternatives according to criteria which include costs,
protection of human health and the 'environment:, practicality, and
long term effects.
TASK 8 RI/FS REPORT
A. Include results from site investigation.
Include analytical data verification/validation summaries.
C. Include data evaluation (significance of field tests).
D. Include regulatory analysis (MTCA cleanup standards).
D. SCHEDULE AND BUDGET
MAJOR TOTAL ELIGIBLE REQUESTED FROM
PROJECT TASKS PROJECT COST DEPARTMENT
1. Project Management (Consultant) $ 28,796 $ 14,398
2. Preparation for Interim Cleanup Action 8,188 4,094
3. Project Management (Recipient) 30,000 15,000
4. RI/FS Work Plan Preparation 27,650 13,825
5. Site Investigation 63,078 31,539
6. Risk Assessment 6,926 3,463
7. Cleanup Action Alternatives 7,924 3,962
8. RI/FS Report 34.522 17.261
TOTAL $207,084 $103,542
4 of 7
Grant No. 6-92002917/
Richardson's Airway RI/FS
Ap,reement with Yakima Air Terminal
E. FUND SOURCE
Local Toxics Control Account $103,542
ADDITIONAL BUDGET CONDITIONS
1. Five (5) percent of each payment will be withheld as retainage until
satisfactory completion of the project.
2. Overhead is eligible, not to exceed 15 percent of the RECIPIENT salaries and
benefits applied directly to the project.
3. The fiscal office will monitor expenditures at the task level. A letter
amendment is required to redistribute costs among tasks. A formal amendment
is required to increase state funding.
4. The maximum allowable amount from LTCA is $103,542. All remaining costs will
be paid by cash match and interlocal costs.
SPECIAL TERMS AND CONDITIONS
A. MINORITY AND WOMEN'S BUSINESS PARTICIPATION
The RECIPIENT agrees to utilize to the maximum extent possible, minority owned
and women owned businesses in purchases and contracts initiated after the
effective date of this agreement.
In th.. =psence of more stringent goals established by the RECIPIENT's
jurist:czion, the RECIPIENT agrees to utilize the DEPARTMENT's goals for
minority- and women -owned business participation in all bid packages, request
for proposals, and purchase orders. These goals are expressed as a percentage
of the total dollars available for the purchase or contract and are as
follows:
Minority-owned business participation - 10%
Women -owned business participation - 6%
The RECIPIENT and ALL prospective bidders or persons submitting qualifications
shall take the following steps in any procurement initiated after the
effective date of this agreement:
1. Include qualified minority and women's businesses on solicitation lists.
2. Ensure that qualified minority and women's businesses are solicited
whenever they are potential sources of services or supplies.
3. Divide the total requirements, when economically feasible, into smaller
tasks or quantities to permit maximum participation by qualified
minority and women's businesses.
5 of 7
Grant No. fZoc ze
Richardson's Airway RI/FS
Agreement with Yakima Air Terminal
4 Establish delivery schedules, where requirements permit, which will
encourage participation of qualified minority and women's businesses.
5. Use the services and assistance of the State Office of Minority and
Women's Business Enterprises and the Office of Minority Business
Enterprises of the U.S. Department of Commerce, as appropriate.
The RECIPIENT shall provide written certification, on a form provided by the
DEPARTMENT that the above steps were/will be followed.
The RECIPIENT shall report to t:he DEPARTMENT at the time of submitting each
invoice, on forms provided by t:he DEPARTMENT, payments made to qualified
firms. The report will address:
1. Name and Federal Tax Identification number of qualified firm receiving
funds under the voucher, including any sub and/or sub -subcontractors.
2. The total dollar amount paid to qualified firms under this invoice.
B. REQUESTS FOR QUALIFICATIONS/PROPOSALS/BIDS
The RECIPIENT shall submit all requests for qualifications (RFQ's), requests
for proposals (RFP's), and bid documents relating to this grant agreement to
the DEPARTMENT for review at least 30 days prior to advertising. The
RECIPIENT shall receive DEPARTMENT written approval to proceed prior to
advertising.
C. SUBCC';:=_ CTOR AWARDS
Prior to entering into any third party contracts for work relating to this
grant agreement, the RECIPIENT shall submit to the DEPARTMENT a description of
the procurement process, a summary of proposals received, the recommended
selection, assurance that all procurement requirements have/are being
fulfilled, and a copy of the proposed subcontract. The RECIPIENT shall
receive written approval from t:he DEPARTMENT. prior to award.
When subcontractor awards have been made prior to execution of this agreement,
the RECIPIENT shall submit to t:he DEPARTMENT evidence that the award fulfills
all procurement requirements. Evidence will consist of a letter from the
REC:IPIENT's signatory and legalcounsel explaining how the selection was made
and certifying the RECIPIENT has satisfied all procurement requirements.
The RECIPIENT will submit draft: subcontracts to the DEPARTMENT for review and
approval prior to contracting with any subcontractor. Following execution of
the subcontract, the RECIPIENT shall submit a copy to the DEPARTMENT.
E. ALL WRITINGS CONTAINED HEREIN
This agreement, consisting of the Cover Sheet, Scope of Work, Special Terms
and Conditions, the appended "General Terms and Conditions;" and the
6 of 7
Grant No. c 24D 29i/
Richardson's Airway RI/FS
Agreement with Yakima Air Terminal
DEPARTMENT's current edition of Administrative Guidelines for Ecology Grants
and Loans (WDOE 91-18, March 1991) contains the entire understanding between
the parties, and there are no other understandings or representations set
forth or incorporated by reference herein. No subsequent modification(s) or
amendment(s) of this agreement shall be of any force or effect unless in
writing, signed by authorized representatives of the RECIPIENT and DEPARTMENT,
and made a part of this agreement; EXCEPT, that in relation to change of the
DEPARTMENT's Project Officer, or the RECIPIENT's Project Coordinator as set
forth on the Grant Cover Sheet, either party may make such change by sending a
letter to that effect without the signature of the other party.
IN WITNESS WHEREOF, the parties hereby execute this grant:
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY YAKIMA AIR TERMIN,A.L
Narda Pierce
Assistant Director
Waste Management
Approved as to form only by
Assistant Attorney General.
Date
7 of 7
AuthorizEd Signature Date
Print Name of Authorized Official
Title
1111111 1 111 1101
1 1 1 1 1 1 11 (1 1 11
ECOLOGY
Sworn Statement of Compliance
with
Minority- and Woman -owned
Business Utilization Requirements
Grantee Grant Number
The undersigned, being first duly sworn, on oath, states on behalf of the GRANTEE as
follows:
The following affirmative steps in awarding contracts and subcontracts will be taken:
1. Include qualified minority, and women's business on solicitation lists;
2. Insure that qualified minority, and women's businesses are solicited whenever they are
potential sources of services or supplies;
3. Divide the total requirements, when economically feasible into smaller tasks or quanti-
ties to permit maximum participation by qualified minority, and women's business;
4. Establish delivery schedules, where requirements of the work permit, which will en-
courage participation of qualified minonty and women's business; and
5. Use the services and assistance of the state Office of Minority and Woman Owned -
Business, and the Office of Minority Business Enterprises of the U.S. Department of
Commerce as appropriate.
Authorized Signature Date
Title
State of
Iss
County of
Subscribed and sworn to before me this day of ,19
NOTARY PUBLIC in and for the State of
residing in
My commission expires
Signature of notary
GENERAL TERMS AND CONDITIONS
Pertaining to Grant and Loan Agreements of
the Department of Ecology
A. RECIPIENT PERFORMANCE
All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and RECIPIENT's employees.
The RECIPIENT shall not assign or subcontract performance to others unless specifically authorized in writing by the
DEPARTMENT.
B. SUBGRANTEE/CONTRACTOR COMPLIANCE
The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement.
C. THIRD PARTY BENEFICIARY
The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of
Washington is named as an express third -party beneficiary of such subcontracts with fill rights as such.
D. CONTRACTING FOR SERVICES (BIDDING)
Contracts for construction, purchase of equipment and professional architectural and engineering services shall be awarded through
a competitive process, if required by State law. The RECIPIENT shall not advertise for bids for construction until receipt of
written approval from the DEPARTMENT. No contract shall be awarded or rejected until approved in writing by the
DEPARTMENT. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the
DEPARTM ENT.
E. ASSIGNMENTS
No right or claun of the RECIPIENT arising under this agreement shall be transferred or assigned by the RECIPIENT.
F. COMPLIANCE WITH ALL LAWS
1. The RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders, regulations and permits.
Prior to commencement of any construction, the RECIPIENT shall secure the necessary approvals and permits required
by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that all approvals and perr
have been secured, and make copies available to the DEPARTMENT upon request.
2. Discrimination. The DEPARTMENT and the RECIPIENT agree to be bound by all Federal and State laws, regulations,
and policies against discrimination. The RECIPIENT further agrees to affirmatively support the program of the Office
of M;.nonty and Women's Business Enterprises to the maximum extent possible. The RECIPIENT shall report to the
DE? 4.-R TM ENT the percent of grant/loan funds available to women or minority owned businesses.
3. Wages And Job Safety. The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United
States and the State of Washington which affect wages .and job safety.
4. Industrial Insurance. The RECIPIENT certifies fiill compliance with all applicable state industrial insurance requirements.
If the RECIPIENT fails to comply with such laws, the DEPARTMENT shall have the right to immediately terminate this
agreement for cause as provided in Section. K.1, herein.
G. KICKBACKS
The RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this project to give up
any part of the compensation to which he/she is otherwise entitled or, receive any fee, commission or gift in return for award of
a subcontract hereunder.
H. AUDITS AND INSPECTIONS
1. The RECIPIENT shall maintain complete program and financial records relating to this agreement. Such records shall
clearly indicate total receipts and expenditures by fund source and task or object. All grant/loan records shall be kept in
a manner which provides an audit trail for all expenditures. All records shall be kept in a comrnon file to facilitate audits
and inspections.
Engineering documentation and field inspection reports of all construction work accomplished under this agreement shall
be maintained by the RECIPIENT.
2. All grantfloan records shall be open for audit or inspection by the DEPARTMENT or by any duly authorized audit
representative of the State of Washington for a period of at least three years after the final grant payment/loan repayment
or any dispute resolution hereunder. If any such audits identify discrepancies in the financial records, the RECIPIE'
shall provide clarification and/or make adjustments accordingly.
3. All work performed under this agreement and any equipment purchased, shall be made available to the DEPARTMENT
and to any authorized state, federal or local representative for inspection at any time during the course of this agreement
and for at least three years following grant/loan termination or dispute resolution hereunder.
4. RECIPIENT shall meet the provisions in OMB Circular A-128 (Audit of State and Local Governments) or OMB Circular
A-110 (Uniform Rei .:.rements for Grants to Universities, Hospitals and Other Non -Profit Organizations) if the
RECIPIENT receive.:ederal funds in excess of S25,000. The RECIPIENT must forward a copy of the state auditor's
audit along with t<- RECIPIENT response and the final corrective action plan as approved by the SAO to the
DEPARTMENT wte.,rt ninety (90) days of the date of the audit report.
1. PERFORMANCE REPORTING
The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set
forth in the Special Conditions. The RECIPIENT shall also report in writing to the DEPARTMENT any problems, delays or
adverse conditions which will materially affect their ability to meet project objectives or time schedules. This disclosure shall be
accompanied by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT to resolve the
situation. Payments may be withheld if required progress reports are not submitted.
Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30,
and October 1 through December 31. Reports shall be due within twenty (20) days following the end of the quarter being
reported.
J. COMPENSATION
1. Method of compensation. Payment shall be made on a reimbursable basis at least quarterly and no more often than once
per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by
the DEPARTMENT along with documentation of the expenses. Payments shall be made for each task/phase of the
project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and certified as
satisfactory by the Project Officer.
The payment request form and supportive documents must itemize all allowable costs by major elements as described in
the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for
Ecology Grants and Loans", part IV, published by the DEPARTMENT. A copv of this document shall be furnished to
the RECIPIENT. When payment requests are approved by the DEPARTMENT. r syments will be made to the mutually
agreed upon designee.
Payment requests shall be submitted to the DEPARTMENT and directed to the Project Officer assigned to administer this
agreement.
2. Budget deviation. Deviations in budget amounts are not allowed without written amendment(s) to this agreement. Payment
requests will be disallowed when the RECIPIENT's request for reimbursement exceeds the State maximum share amount
for that element, as described in the Scope of Work.
3. Penod of Compensation. Payments shall only be made for action of the RECIPIENT pursuant to the grant/loan agreement
and performed after the effective date and prior to the expiration date of this agreement, unless those dates are specifically
modified in writing as provided herein.
4. Final Request(s) for Payment. The RECIPIENT must submit final requests for compensation within forty-five(45) days
after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply
may result in delayed reimbursement.
5. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten percent (10%) of each
reimbursement payment as security for the RECIPIENT's performance and a financial bond. Monies withheld by the
DEPARTMENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been
comp.eted if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this
agreement and, as appropriate, upon completion of an audit as specified under section J.6., herein.
6. Unauthorized Expenditures. All payments to the RECIPIENT shall be subject to final audit by the DEPARTMENT and
any unauthorized expenditure(s) charged to this grant/loan shall be refunded to the DEPARTMENT by the RECIPIENT.
7. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities,
it shall not exceed the amount allowed under state law.
8. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work
hereunder.
K. TERMINATION
1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the
RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion
of the DEPARTMENT, to perform any obligation required of it by this agreement, the DEPARTMENT may refuse to
pay any further funds thereunder and/or terminate this agreement by giving written notice of termination.
A written notice of termination shall be given at least five working days prior to the effective date of termination. In that
event, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, and reports or
ether materials prepared by the RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become
Department property and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory
work completed on such documents and other materials.
Despite the above, the RECIPIENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by
the DEPARTMENT and/or the State of Washington because of any breach of agreement by the RECIPIENT. The
DEPARTMENT may withhold payments for the purpose of setoff until such time as the exact amount of damages due tt
DEPARTMENT from the RECIPIENT is determined.
2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and
federal funds through legislative appropriation and state allotment. When this agreement crosses over state fiscal years
the obligation of the DEPARTMENT is contingent upon the appropriation of funds during the next fiscal year. The failure
to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above.
When this agreement crosses the RECIPIENT's fiscal year, the obligation of the RECIPIENT to continue or complete the
project described herein shall be contingent upon appropriation of funds by the RECIPIENT's governing body; Provided,
however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of AI.L funds paid
to the RECIPIENT in accordance with Section N herein.
3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project funded herein within
four months after the effective date of this agreement, or by any date mutually agreed upon in writing for commencement
of work, the DEPARTMENT reserves the right to terminate this agreement.
L. WAIVER
Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of any provision of this
agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement
unless stated as such in writing by the authorized representative of the DEPARTMENT.
M. PROPERTY RIGHTS
1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property,
the RECIPIENT may copyright or patent the same but the DEPARTMENT retains a royalty -free, nonexclusive and
irrevocable license to reproduce, publish, recover or otherwise use the material(s) or property and to authorize others to
use the same for federal, state or local government purposes.
Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any
inventions that developed by the RECIPIENIT as provided in 35 U.S.C. 200-212.
2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of 0 --
DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use log(
reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the
DEPARTMENT.
3. Tanrible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Ecology Grants
and Loans", Part IV, shall control the use and disposition of all real and personal property purchased wholly or in part
with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the
contrary or upon specific instructions with respect thereto in the Scope of Work.
4. Personal Property Furnished jay the DEPARTMENT. When the DEPARTMENT provides personal property directly to
the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to final payment
by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the
DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the far market value of such property.
5. Acquisition Projects. The following provisions shall apply if the project covered by this agreement includes funds for the
acquisition of land or facilities:
a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of
land/or facilities is fair and reasonalble.
b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to
disbursement of funds provided by this agreement. Such evidence may include title insurance policies, Torrens
certificates, or abstracts, and attorney's opinions establishing that the land is free from any impediment, lien, or
claim which would impair the uses contemplated by this agreement.
6. Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time
convert any equipment, property or facility acquired or developed pursuant to this agreement to uses other than those for
which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be
conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other conversion
or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction
costs of such property.
N. RECOVERY OF PAYMENTS TO RECIPIENT
The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance
of this agreement including the satisfactory completion of the project described in the Scope of Work. In the event the
RECIPIENT fails, for any reason, to perform obligations required of it by this agreement, the RECIPIENT may, at the
DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the RECIPIENT
for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform.
Interest shall accrue at the rate of twelve percent (12%) per annum from the time the DEPARTMENT demands repayment of
funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the
RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any
property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and
the RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of such property.
O. PROJECT APPROVAL
The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to
the review and approval of the DEPARTMENT through the Project Officer or other designated official to whom the RECIPIENT
shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done,
the determination of the Project Officer or other designated official as to the extent and character of the work to be done shall
govern. The RECIPIENT shall have the right to appeal decisions as provided for below.
P. DISPUTES
Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is
not disposed of in writing shall be decided by the Project Officer or other designated official who shall provide a written statement
of decision to the RECIPIENT. The decision of the Project Officer or other designated official shall be final and conclusive
unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director
of the DEPARTMENT a written appeal.
In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer
evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such
appeals shall be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of
Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board
or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the
performance of this agreement and in accordance with the decision rendered.
Q. CONFLICT OF INTEREST
No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the
review, approval, or carrying out of this agreement, shall participate in any decision which affects his/her personal interest or the
interest of an corporation, partnership or association in which he/she is, directly or indirectly interested; nor shall he/she have
any persona; or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof.
R. INDEMNIFICATION
1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related
to the project described herein, except as provided in the Scope of Work.
2. To the extent that the Constitution and laws of the State of Washington permit, each party shall indemnify and hold the
the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent
act or omission of that party or that party's agents or employees arising out of this agreement.
S. GOVERNING LAW
This agreement shall be governed by the laws of the State of Washington.
T. SEVERABILITY
If any provision of this agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity
shall not affect the other provisions of this agreement which can be given effect without the invalid provision, and to this end the
provisions of this agreement are declared to be severable.
U. PRECEDENCE
In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving
precedence in the following order: (a) applicable Federal and State statutes and regulations; (b) Scope of Work; (c) Special Terms
and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for Ecology Grants
and Loans"; and (e) the General Terms and Conditions.
SS -010 Rev. 3/91