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HomeMy WebLinkAbout05/03/2011 16 UIC Wells Assessment and Retrofit Program Grant Agreement with the Washington State DOE . BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. b For Meeting of: May 3, 2011 ITEM TITLE: Consideration of Resolution authorizing the City Manager to execute a Grant Agreement with the Washington State Department of Ecology for assessment of its Underground Injection Control (UIC) wells, development of a long term UIC retrofit program and authorization for the City Manager to sign other documents pertaining to the project. SUBMITTED BY: Doug Mayo and Randy Meloy CONTACT PERSON/TELEPHONE: Randy Meloy, P.E., Surface Water Engineer 576 -6606 SUMMARY EXPLANATION: In August 2010, the Stormwater Utility applied for a grant from the Department of Ecology's FY2011 Stormwater Retrofit and LID Competitive Grant Program in the amount of $210,000 that would allow the City to assess all of its 400+ UIC wells, develop a long term UIC retrofit program, and to design and construct prototype UIC retrofit projects to add water quality and low impact development (LID) treatment to some of the City's UIC facilities. • In January 2011, Ecology offered the City a $210,000 grant that will require a $70,000 match. Negotiations are currently underway between Ecology and the Stormwater Utility on the final Grant Agreement document. The final document will look substantially like the enclosed. Resolution X Ordinances Other (Specify) Grant Document Contract Mail to (name and address): Department of Ecology Phone: Funding Source: Stormwater Capital 442 -- Revenue shall be credited to Stormwater Utility Fund 441 APPROVED FOR SUBMITTAL: � City Manager STAFF RECOMMENDATION: Adopt the resolution. BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: • • RESOLUTION NO. R -2011- A RESOLUTION authorizing the City Manager to execute a Fiscal Year 2011 Stormwater Retrofit and LID Grant Agreement with the Washington State Department of Ecology for assessment of its Underground Injection Control (UIC) wells, development of a long term UIC retrofit program and authorization for the City Manager to sign other documents pertaining to the Ecology grant process. WHEREAS, the City applied for Washington State Department of Ecology FY2011 Stormwater Retrofit and LID Grant funds to assess the City's 400+ UIC wells and develop a long term retrofit program; and WHEREAS, the City was awarded a 75/25 grant amount of $210,000, with the Stormwater Capital Fund contributing $70,000; and WHEREAS, according to Chapter 173 -200 WAC a well assessment must be completed for all existing wells by February 3, 2013 and those that are determined to be a high threat to groundwater must eventually be retrofitted; and WHEREAS, it is in the best interest of the City to utilize the grant to assess its UIC wells and develop a long term UIC retrofit program; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: • The City Manager is hereby authorized and directed to execute the FY2011 Stormwater Retrofit and LID Grant Agreement with the Washington State Department of Ecology for assessment of its UIC wells, development of a long term UIC retrofit program and authorization for the City Manager to sign other documents pertaining to the Ecology grant process. ADOPTED BY THE CITY COUNCIL this 3rd day of May 2011. Micah Cawley, Mayor ATTEST: City Clerk • • • • • I � e y y „ f�`�`� DEPARTMENT OF E L State of Washington FY2011 STORMWATER RETROFIT AND LID COMPETITIVE GRANT PROGRAM FUNDING AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF L+ COLOGY AND • CITY OF YAKIMA GRANT AGREEMENT NUMBER YAKIMA UIC/WATER QUALITY RETROFITS TABLE OF CONTENTS PART I. GENERAL INFORMATION 1 PART II. PROJECT SUMMARY 3 PART III. PROJECT BUDGET 3 PART IV. PROJECT GOALS AND OUTCOMES 4 PART V. SCOPE OF WORK 5 PART V(A). SPECIAL TERMS AND CONDITIONS 10 PART VI. ALL WRITINGS CONTAINED HEREIN 11 ATTACHMENT I: GENERAL PROJECT MANAGEMENT REQUIREMENTS FOR THE FY 2011 STORMWATER RETROFIT AND LID COMPETITIVE GRANT PROGRAM 12 ARCHEOLOGICAL AND CULTURAL RESOURCES 12 CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY EXCLUSION 12 EDUCATION AND OUTREACH 13 FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT (FFATA) REPORTING REQUIREMENTS 13 FUNDING RECOGNITION 1 INCREASED OVERSIGHT 14 INDIRECT RATE 14 MATCHING REQUIREMENTS 14 MINORITY AND WOMEN'S BUSINESS PARTICIPATION 14 PAYMENT REQUEST SUBMITTALS 15 POST PROJECT ASSESSMENT 16 PROCUREMENT 16 • • I • PROGRESS REPORTS 16 REQUIRED DOCUMENT SUBMITTALS 16 ATTACHMENT II: GENERAL TERMS AND CONDITIONS PERTAINING TO GRANT AND LOAN AGREEMENTS OF THE DEPARTMENT .OF ECOLOGY 18 A. RECIPIENT PERFORMANCE 18 B. SUBGRANTEE/CONtRACTOR COMPLIANCE 18 C. THIRD PARTY BENEFICIARY 18 D. CONTRACTING FOR SERVICES (BIDDING) 18 E. ASSIGNMENTS 18 F. COMPLIANCE WITH ALL LAWS 18 G. KICKBACKS 19 H. AUDITS AND INSPECTIONS 19 I. PERFORMANCE REPORTING 19 J. COMPENSATION 20 K. TERMINATION 21 L. WAIVER 21 M. PROPERTY RIGHTS 21 N. SUSTAINABLE PRODUCTS 22 O. RECOVERY OF PAYMENTS TO RECIPIENT 23 P. PROJECT APPROVAL 23 Q. DISPUTES 23 R. CONFLICT OF INTEREST 24 S. INDEMNIFICATION 24 T. GOVERNING LAW 24 U. SEVERABILITY 24 V. PRECEDENCE 24 • ii FY2011 STORMWATER RETROFIT AND LID COMPETITIVE GRANT PROGRAM Funding Agreement Between THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND • CITY OF YAKIMA THIS is a binding agreement between the state of Washington Department of Ecology (DEPARTMENT) and City of Yakima (RECIPIENT). The purpose of this agreement is to provide funds to the RECIPIENT, who will carry out the requirements described in this agreement. • PART I. GENERAL INFORMATION Project Title: Yakima UIC /Water Quality Retrofits Grant Number: State Fiscal Year: FY 2011 Total Project Cost: $280,000 Total Eligible Cost: $280,000 DEPART Share: $210,000 RECIPIE Share: $70,000 DEPARTMENT Maximum Percentage: 75% RECIPIENT Information RECIPIENT Name: City of Yakima Mailing Address: 129 N. 2 Street Yakima, WA 98901 Fax Number: (509) 576 -6305 Federal Taxpayer ID Number: 91- 6001293 PROJECT Manager: Randy Meloy Email Address: rmeloy @ci.yakima.wa.us Phone Number: (509) 576 -6606 PROJECT Financial Officer: Edna Pettyjohn Email Address: epettyjo @ci.yakima.wa.us Phone Number: 509 576 -6638 DEPARTMENT Contact Information Project Manager: Terry Wittmeier • 1 Email Address: terry.wittmeier @ecy.wa.gov Phone Number: (509) 574 -3991 Project Engineer: Douglas C. Howie, P.E. Email Address: douglas.howie @ecy.wa.gov Phone Number: (360) 407 -6444 Address: n Northwest ® Central WA State Department of Ecology WA State Department of Ecology Northwest Regional Office Central Regional Office 3190 160` Ave SE 15 West Yakima Ave, Suite 200 Bellevue, WA 98008 -5452 Yakima, WA 98902 -3452 Fax (425) 649 -7098 Fax (509) 575 -2809 ❑ Southwest ❑ Eastern WA State Department of Ecology WA State Department of Ecology Southwest Regional Office Eastern Regional Office P.O. Box 47775 N. 4601 Monroe Olympia, WA 98504 -7775 Spokane, WA 99205 -1295 Fax (360) 407 -6305 Fax (509) 329 -3570 ❑ Bellingham ❑ Headquarters WA State Department of Ecology WA State Department of Ecology Bellingham Field Office P.O. Box 47600 1440 10th Street, Suite 102 Olympia, WA 98504 -7600 Bellingham, WA 98225 Fax (360) 407 -6426 Fax (360) 715 -5225 Financial Manager: Patricia Brommer Email Address: patricia.brommer @ ecy.wa.gov Phone Number: (360) 407 -6216 Fax Number: (360) 407 -7151 Address: WA State Department of Ecology Water Quality Program, FMS • P.O. Box 47600 Olympia, WA 98504 -7600 2 4110 CHECK ALL THAT APPLY: • FY 2011 Stormwater Retrofit and LID Funds (state funds): ® Yes Amount: $210,000 • Prior Authorization Granted: ❑ Yes If yes, Effective Date: ® No • Increased Oversight? ❑ Yes '® No The effective date of this agreement is the date the agreement is signed by the DEPARTMENT's Water Quality Program Manager. Any work performed prior to the effective date of this AGREEMENT, without written Prior Authorization of the DEPARTMENT, will be at the sole expense and risk of the RECIPIENT. This agreement expires December 31, 2014.. Post Project Assessment date'— three years after the expiration date of the agreement (see Post 'Comment PBl r` ° ` r Y�,� x.• •[ ]•ia'm • per Project Ass a „� ,, .,, a ,, : , „ ., n,�,:,c j Assessment in Attachment I): CDecem'ber�,3'1` r�20�I�7� 7: ig,to.kegpt 41,::it i 9[ '' hr:_ ___ miiitain_Alie °same :f f ks )FPtIFF, auts a' PART II. PROJECT ;• "le'meiie SUMMARY fi _. . : ;:.e�, Amin y r ,:r e y` ' s:a This project will address water quality for the state of Washington. The RECIPIENT will design ' ` ` " "' and construct prototype Underground Injection Control (UIC) retrofit projects to add water quality and low impact development (LID) treatment to the City's existing 436 UIC facilities. These prototype retrofit designs are intended to initiate a long -tern UIC retrofit program throughout the City, Yakima County, and Eastern Washington. PART III. PROJECT BUDGET YAKIMA UIC /WATER QUALITY RETROFITS TASKS /OBJECTS TOTAL * *TOTAL PROJECT ELIGIBLE COST COST (TEC) 1 - Project Administration/Management $20,000 $20,000 2 - UIC Mapping, Evaluation and Characterization, Risk $175,000 $175,000 Assessment, BMP Evaluation, and Action Plan Development 3 - Plans and Specifications - City Forces $30,000 $30,000 4 - Construction Management - City Forces $5,000 $5,000 • 3 • 5 - Construction - City Forces $50,000 $50,000 Total $280,000 $280,000 ** The DEPARTMENT's Fiscal Office will track to the Total Eligible Cost. MATCHING REQUIREMENTS DEPARTMENT Share: maximum 75% of TEC $210,000 RECIPIENT Share: minimum 25% of TEC Cash $70,000 $70,000 Other types of in -kind, such as volunteer work are not eligible PART IV. PROJECT GOALS AND OUTCOMES A. Financial Assistance Water Quality Project Goals: The overall goals of this project are focused on the protection of Wellhead Protection Areas (WPA) located in or around the City of Yakima and include one or more of the following: ® Stonnwater System Retrofit ❑ Low Impact Development Best Management Practices • ❑ Designated beneficial uses will be restored or protected, 303(d)- Listed water bodies restored to water quality standards, healthy waters prevented from being degraded. B. Water Quality and Environmental Outcomes: The following are the anticipated water quality and environmental improvements from the project. Please include the water quality parameters addressed and improvements to these parameters that will occur as a result of the project. 1. Provide .water quality treatment in WPAs, by retrofitting Underground Injection Control (UIC) wells. 2. Provide the final evaluative UIC retrofit document that illustrates cost effective and area sensitive UIC retrofits to Eastern Washington coummunities C. Performance Items and Deliverables: The following are the anticipated action items that will play an integral role in implementation of the project. Please include types and amounts of BMPs that will be installed. This includes items such as linear feet of pervious pavement, number of rain gardens installed, stonnwater facility, outreach and education, monitoring, technical assistance, GIS mapping, and others. 1. Provide a tested suite of techniques that may be used to retrofit exisiting UIC wells in eastern Washington communities 2. Retrofit up to five UIC wells in the City of Yakima. 4 • • • PART V. SCOPE OF WORK Task 1 - Project Administration /Management A. The RECIPIENT will administer the project. Responsibilities will include, but not be limited to: Maintenance of project records; submittal of payment vouchers, fiscal forms, and progress reports; compliance with applicable procureinent, contracting, and interlocal agreement requirements; application for, receipt of, and compliance with all required permits, licenses, easements, or property rights necessary for the project; and submittal of required performance items. B. The RECIPIENT must manage the project. Efforts will include: conducting, coordinating, and scheduling project activities and assuring quality control. Every effort will be made to maintain effective communication with the RECIPIENT's designees; the DEPARTMENT; all affected local, state, or federal jurisdictions; and any interested individuals or groups. The RECIPIENT must carry out this project in accordance with any completion dates outlined in this agreement. C. The RECIPIENT must ensure this project is completed according to the details of this agreement. The RECIPIENT may elect to use its own forces or it may contract for professional services necessary to perform and complete project - related work. • Required Performance: 1. Effective administration and management of this grant project. 2. Timely submittal of all required performance items, progress reports, and financial vouchers. 3. Submit at least three hard copies and one electronic copy of the final project report after a draft has been approved by the DEPARTMENT. 4. Write and submit a one to two page summary of project accomplishments and outcomes at project completion, including pictures, to be published in the DEPARTMENT's Annual Water Quality Financial Assistance Report following the DEPARMENT's water quality stories format. Task 2 I1IC Mapping, Evaluation and > <C) aracte`nzation Risb ssessment 3MP ,r - A3 . s s -vaxa a Vii, w^.M saris t- +x. : ^I Comment { 1 t - Evaluation, and:Action,P1amDevelopment combined'the.lZEG s Task,2 A. The RECIPIENT will obtain existing mapping related data from the City files, including GIS files, CAD files, and hard copy plan sets related to the iodation of the existing stonnwater infrastructure. The RECIPIENT will convert relevant data to a common GIS coordinate system for project mapping and analysis. • B. The RECIPIENT will use the data collected to develop project base snaps and final report figures showing the locations of UIC systems relative to the soil types, land use, well head protection areas, groundwater wells, surface water drainages, and other relevant geographic data. 5 C. The RECIPIENT will use the base maps and GIS data to conduct geographic -based analyses in support of the UIC evaluation and risk assessment. D. Based on the mapping data assembled, the RECIPIENT will define the drainage basin characteristics (size, soils, land use), site conditions (location, available right -of -way, traffic impacts, constraints), and pollutants of concerns for each of the existing UICs. The RECIPIENT will develop a UIC information table with the assembled information that can be linked to the RECIPIENT's UIC database and GIS system. E. The RECIPIENT will identify commonalities among the analyzed characteristics and establish 3 -5 categories for classifying the existing UICs. The RECIPIENT will categorize the existing UICs into groups based on the site conditions and constraints that may influence the available retrofit opportunities. F. The RECIPIENT will conduct a brief, focused review of established UIC designs used by other northwest communities to determine if additional UIC categories should be included in the final UIC Retrofit Action Plan, so that the Action Plan can be used as a template for other eastern Washington communities. G. Using the data developed, the RECIPIENT will conduct a risk assessment to rate and rank the existing UICs based on their potential to introduce pollutants into the ground and surface water. The RECIPIENT will develop a matrix or table with the UIC Risk • Assessment hierarchy and identify individual or groups of UICs for highest priority retrofit. H. The RECIPIENT will prepare a summary memorandum, documenting the UIC Evaluation, Characterization, and Risk Assessment, and retrofit prioritization. I. Using existing guidance documents and materials such as the Yakima County Regional Stormwater Manual (2010), the Stormwater Management Manual for Eastern Washington (2004), the Low Impact Development Technical Guidance Manual for Puget Sound (2005), the Yakima Area Regional LID Manual (in process), the Washington State Department of Ecology's Guidance for UIC Wells that Manage Stormwater, and the City of Portland's Underground Injection Control Management Plan, the RECIPIENT. will develop a list of potential BMPs and LID techniques that could be used to retrofit existing UICs to provide water quality treatment. J. The RECIPIENT will evaluate each of the potential UIC retrofit methodologies to determine the applicable use in each of the UIC categories. The evaluation will consider pollutants of concern, site constraints, construction impacts, construction cost, and long term maintenance requirements. The RECIPIENT will formulate a matrix showing the preferred retrofit methodologies for each UIC category. In some cases, the matrix will indicate more than one preferred method or a primary and secondary choice method for a given UIC category. K. The RECIPIENT will prepare conceptual sketches and planning level cost estimates for 6 • each type of retrofit methodology, showing how the technique might be used with each of the applicable UIC categories. L. The RECIPIENT will develop a prioritized list and conceptual schedule for retrofitting the existing UICs. The priority list will identify the preferred retrofit method for each of the highest priority UICs. The schedule will be based on the results of the UIC Risk Assessment, as well as the estimated retrofit costs in relation to the anticipated available capital construction budget. M. The RECIPIENT will develop a written report, documenting the work completed above. The report will include maps and tables of all the existing UICs as well as the interim products developed and the prioritized retrofit schedule. The report and prioritized schedule will become the RECIPIENT's Long -Term UIC Retrofit Action Plan to guide retrofit projects over the next 5 to 10 years. Required Performance: The RECIPIENT will provide the following to the DEPARTMENT's Project Manager: 1. Scope of Services for the Summary Memorandum and the Long Term UIC • Retrofit Action Plan Report 2. Summary Memorandum 3. Report: Long -Tern UIC Retrofit Action Plan • Task 3 — Plans and Specifications A. The RECIPIENT will submit to the DEPARTMENT's Project Manager, a copy of the Lead Agency's signed and dated State Environmental Policy Act (SEPA) determination. B. During the planning and design stage and prior to any ground disturbing activities, the RECIPIENT will submit to the DEPARTMENT's Project Manager one of the following: a. If Cultural Resources Review (Executive Order 05 -05) is complete, a copy of the letter of concurrence from the Department of Archaeology and Historic Preservation (DAHP). b. If Cultural Resources Review (Executive Order 05 -05) is not complete, the RECIPIENT will submit a DAHP EZ -1 form to the DEPARTMENT's Project Manager for coordination with the DAHP on the letter of concurrence. C. The RECIPIENT will submit the Pre - design report to the DEPARTMENT for review. At its discretion, the DEPARTMENT may request 60 percent complete design plans for review. Based on receipt of the Pre - design report or the 60 percent complete design plans, the DEPARTMENT will provide comments to the RECIPIENT within 45 days of receipt of the plans. D. • The RECIPIENT will submit final plans and specifications to the DEPARTMENT's Project Manager for review. The DEPARTMENT will provide comments to the RECIPIENT within 45 days of receipt of the plans. The DEPARTMENT's Project • 7 Manager will work with the DEPARTMENT's engineer to review the plans and specifications for consistency with the appropriate design criteria and grant requirements. The RECIPIENT must justify significant deviations from the following: 1. The following Guidance Manual depends on the region that your project is conducted: Stormwater Management Manual for Western Washington (SWMMWW), or the Stormwater Management Manual for Eastern Washington ( SWMMEW), both can be found at: http: / /www.ecy.wa.gov/ programs /wq /stormwater /tech.html, or the Low Impact Development Technical Guidance Manual for Puget Sound found at: http: / /www.psp.wa.L*ov /downloads /LID /LID manual2005.pdf, or equivalent design manuals, or 2. Equivalent manual as developed by the local jurisdiction and approved by Ecology. 3. Good engineering practices and generally recognized engineering standards. 4. The project pre- design report. E. The plans, specifications, construction contract documents, and addenda must be approved by the RECIPIENT prior to submittal to the DEPARTMENT. F. The RECIPIENT will prepare and submit a projected construction schedule to the DEPARTMENT. G. The RECIPIENT will submit to the DEPARTMENT a current, updated construction cost estimate along with each plans and specifications submittal. H. The RECIPIENT will submit all construction plans to the DEPARTMENT, reduced to no larger than 11" x 17" in size. The RECIPIENT may bind them with the specifications or related construction contract documents or bound as a separate document. All reduced drawings must be legible. The RECIPIENT will develop and submit an operations & maintenance plan for the stormwater treatment and low impact development (LID) features. The operation & maintenance plan will describe how the RECIPIENT will ensure project success consistent with the design manual used. The operation & maintenance plan must also address long term activities to assure ongoing pollutant removal and flow - control . capability of the project. ( Stormwater Management Manual for Eastern Washington Appendix 5A) Required Performance: 1. Submit a copy of the signed and dated SEPA determination to the DEPARTMENT. • 8 • . 2. Submit a copy of either: 1) Letter of Concurrence from DAHP; or, 2) the DAHP EZ -1 form, for DEPARTMENT coordination on compliance with Executive Order 05 -05. 3. Submit final plans and specifications to the DEPARTMENT. Task 4 — Construction Management A. The RECIPIENT will provide construction oversight and management of the project. B. The RECIPIENT will submit a detailed construction quality assurance plan to the DEPARTMENT before the start of construction. This plan must describe how adequate and competent construction oversight will be performed. C. The RECIPIENT will submit a construction schedule to the DEPARTMENT within 30 days of the start of construction. The construction schedule will be revised and/or updated whenever major changes occur and at a minimum of every three months. The RECIPIENT will submit the construction schedule to the DEPARTMENT with the quarterly report. When changes in the construction schedule affect previous cash flow estimates, revised cash flow projections must also be submitted to the DEPARTMENT. D. Prior to execution, the RECIPIENT will submit eligible change orders that are a significant deviation from the DEPARTMENT reviewed plans and specifications in • writing for DEPARTMENT review and approval for payment. All other change orders must be approved by the DEPARTMENT for technical merit and should be submitted within 30 days after execution. Change orders are to be signed by the contractor, the engineer (if appropriate), and the RECIPIENT prior to submittal to the DEPARTMENT for approval. E. Upon completion of construction, the RECIPIENT will provide to the DEPARTMENT's Project Manager a Construction Completion Form signed by a professional engineer, indicating that the project was completed in accordance with the plans and specifications and major change orders approved by the DEPARTMENT's Project Engineer and shown on the Record Drawings. Required Performance: 1. Submit the project construction quality assurance plan to the DEPARTMENT. 2. Submit the construction schedule to the DEPARTMENT. 3. Submit the signed and dated Declaration of Completion Form to the DEPARTMENT. 4. Submit a Program Assessment Memorandum Task 5 — Construction A. The RECIPIENT will develop a prototype for Underground Injection Control (UIC) retrofit Best Management Practices (BMP) projects to add water quality and low impact development (LID) treatment to existing UIC wells. The final framework may be utilized by other Eastern Washington communities for determining appropriate UIC retrofits. • 9 0 Required Performance: 1. Implement up to five BMPs for UIC wells. PART V(a). SPECIAL TERMS AND CONDITIONS. A. Adjusted Construction Budget. The construction budget, as reflected in the agreement, will be adjusted once actual construction bids are received. If the low responsive responsible construction bid(s) exceed the engineer's estimate of construction costs, the DEPARTMENT may approve, if funding is available and through fonnal amendment to this agreement, funding increases for up to ten percent of the engineer's original estimate. If the low responsive responsible construction bid(s) come in lower than the engineer's estimate of construction costs, the DEPARTMENT may reduce the grant amount. B. Change Orders. If funding is available, the DEPARTMENT may approve, through fonnal amendment to this agreement, funding for change orders for up to five percent of the eligible portion of the low responsive responsible construction bid(s). C. Documents for Review. The plans, specifications, construction contract documents, and addenda must be approved by the RECIPIENT prior to submittal for DEPARTMENT review. D. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project within four months of the signatory date, the DEPARTMENT reserves the right to terminate this agreement. E. Use of Force Account. In the event the RECIPIENT elects to use its own forces to accomplish eligible project work, the RECIPIENT acknowledges that it has the legal authority to perform the work and adequate and technically qualified staff to perfonn the work without compromising other government functions. The RECIPIENT must track and report the force account work submitted to the DEPARTMENT for reimbursement. • 10 • . PART VI. ALL WRITINGS CONTAINED HEREIN The following contain the entire understanding between the parties, and there are no other understandings or representations other than as set forth, or incorporated by reference, herein: • This agreement. • Attachment I: General Project Management Requirements for the FY 2011 Stormwater Retrofit and Lid Competitive Grant Program. • Attachment II: General Terms and Conditions. • The effective edition, at the signing of this agreement, of the DEPARTMENT's "Administrative Requirements for Ecology Grants and Loans ". • The associated funding guidelines that correspond to the fiscal'year in which the project is funded. • The applicable statutes and regulations. No subsequent modifications or amendments of this agreement will be of any force or effect unless signed by authorized representatives of the RECIPIENT and the DEPARTMENT and made a part of this agreement, EXCEPT that in response to a request from the RECIPIENT, the DEPARTMENT may redistribute the grant budget. The DEPARTMENT or the RECIPIENT may change their respective staff contacts without the concurrence of either party. The RECIPIENT acknowledges that they have had the opportunity to thoroughly review the • terns of this agreement, the attachments, all incorporated or referenced documents, as well as all applicable statutes, rules, and guidelines mentioned in this agreement. IN WITNESS WHEREOF, the parties hereby execute this agreement: STATE OF WASHINGTON CITY OF YAKIMA DEPARTMENT OF ECOLOGY KELLY SUSEWIND P.E., P.G. DATE RICHARD A. ZAIS DATE WATER QUALITY PROGRAM MANAGER CITY MANAGER • • 11 0 ATTACHMENT I: GENERAL PROJECT MANAGEMENT REQUIREMENTS FOR THE FY 2011 STORMWATER RETROFIT AND LID COMPETITIVE GRANT PROGRAM ARCHEOLOGICAL AND CULTURAL RESOURCES The RECIPIENT must comply with all requirements listed in Executive Order 05 -05 prior to irnplementing project that involves disturbing soil. Compliance includes coordinating with the Department of Historic and Archeological Preservation and affected tribes. Executive Order 05 -05 is found at: http: / /www:dahp.wa.gov /pages /EnvironmentalReview /documents /E005 05.pdf The Department of Historic and Archeological Preservation has provided guidance to initiate the 0505 process that can be accessed online at: http: / /www.dahp.wa.gov /pages/ Documents /EnvironmentalReview.htm and http: / /www.dahp.wa. gov /paces / EnvironmentalReview/ documents /eo0505Guidance000.pdf. CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY EXCLUSION 1. The RECIPIENT /CONTRACTOR, by signing this agreement, certifies that it is not suspended, debarred, proposed for debarment, declared ineligible or otherwise excluded from contracting with the federal government, or from receiving contracts paid for with federal funds. If the RECIPIENT /CONTRACTOR is unable to certify to the statements contained in the certification, they must provide an explanation as to why they cannot. 2. The RECIPIENT /CONTRACTOR shall provide immediate written notice to the Department if at any time the RECIPIENT /CONTRACTOR learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3. The terns covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact.the department for assistance in obtaining a copy of those regulations.. 4. • The RECIPIENT /CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under the applicable Code of Federal Regulations, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction. 5. The RECIPIENT /CONTRACTOR further agrees by signing this agreement, that it will include this clause titled "CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY EXCLUSION" without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 12 • • 6. Pursuant to 2CFR180.330, the RECIPIENT /CONTRACTOR is responsible for ensuring that any lower tier covered transaction complies with certification of suspension and debarment requirements. 7. RECIPIENT /CONTRACTOR acknowledges that failing to disclose the information required in the Code of Federal Regulations may result in the delay or negation of this funding agreement, or pursuance of legal remedies, including suspension and debarment. 8. RECIPIENT /CONTRACTOR agrees to keep proof in its agreement file, that it, and all lower tier recipients or contractors, are not suspended or debarred, and will make this proof available to the Department upon request. RECIPIENT /CONTRACTOR must run a search in www.epls.gov and print a copy of completed searches to document proof of compliance. EDUCATION AND OUTREACH Before producing any new materials for the-purpose of education and outreach the RECIPIENT must make sure similar materials do not already exist elsewhere. If similar materials exist, the RECIPIENT must request the use of the materials before time and resources are invested to duplicate materials that are already available. The RECIPIENT must provide the DEPARTMENT up to two copies and an electronic copy on • CD -ROM of any tangible educational products developed under this grant, such as brochures, manuals, pamphlets, videos, audio tapes, CDs, curriculum, posters, media announcements or gadgets, such as a refrigerator magnet with a message. If this is not practical, the RECIPIENT must provide a complete description including photographs or printouts of the product. The RECIPIENT must also supply the DEPARTMENT with the names and contact information of local project leads. If there are a significant number of people in the community that speak languages other than English, the RECIPIENT must produce all pamphlets, fliers, meeting notices, reports, and other educational and public outreach materials in English and in the other prevalent language. • FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT (FFATA) REPORTING REQUIREMENTS In order to comply with the FFATA, the RECIPIENT must complete the FFATA Data Collection Form and return it to the DEPARTMENT. The DEPARTMENT will report basic agreement information, including the required DUNS number, for all federally- funded agreements at www.fsrs.gov. This information will be made available to the public at www.usaspending.gov. Recipients who do not have a DUNS number can find guidance at www.grants.gov . Please note that Ecology will not pay any invoices until it has received the completed FFATA Data Collection Form. 13 • • Any recipient that receives 80 percent or more of its annual gross revenues from federal funds, and receives more than $25,000,000 in annual federal funds, must also report compensation for its five top executives. See www.fsrs.gov for details of this requirement. If your organization falls into this category, you must report the required information to the DEPARTMENT. FUNDING RECOGNITION The RECIPIENT must inform the public about DEPARTMENT or the Environmental Protection Agency (EPA) funding participation in this project through the use of project signs, acknowledgement in published materials, reports, the news media, or other public announcements. Projects addressing site - specific locations must utilize appropriately sized and weather - resistant signs. Sign logos are available from the DEPARTMENT upon request. INCREASED OVERSIGHT If this project is selected for increased oversight (as indicated on page 3 of this agreement), the RECIPIENT must submit all backup documentation with each payment request submittal. In addition, the DEPARTMENT's Project Manager must establish a schedule for additional site visits to provide technical assistance to the RECIPIENT and verify progress or payment information. INDIRECT RATE To acknowledge overhead costs, the RECIPIENT may charge an indirect rate of up to 25 percent based on employees' direct salary and benefit costs incurred while conducting project- related work. The DEPARTMENT's Financial Manager may require a list of items included in the indirect rate at any time. MATCHING REQUIREMENTS Cash Match Requirement. FY 2011 Stornwater Retrofit and LID Competitive grants require cash match only. Interlocal Match Requirement. The RECIPIENT certifies by signing this agreement that all negotiated interlocal agreements are consistent with all of the following: • • Tern-is of this grant agreement • The edition of "Administrative Requirements for Ecology Grants and Loans" that is effective at the signing of this agreement. • Chapter 39.34 RCW Interlocal Cooperation Act MINORITY AND WOMEN'S BUSINESS PARTICIPATION The RECIPIENT agrees to solicit and recruit; to the extent possible, certified minority -owned (MBE) and women -owned (WBE) businesses in purchases and contracts initiated after the effective date of this agreement. Contract awards or rejections cannot be made based on MBE or WBE participation. M /WBE participation is encouraged, however, and the RECIPIENT and all prospective bidders or persons 14 11111 submitting qualifications should take the following steps, when possible, in any procurement initiated after the effective date of this agreement: a) Include qualified.minority and women's businesses on solicitation lists. b) Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. c) Divide the total requirements, when economically feasible, into smaller tasks or quantities, to permit maximum participation by qualified minority and women's businesses. d) Establish delivery schedules, where work requirements permit, which will encourage • participation of qualified minority and women's businesses. e) Use the services and assistance of the State Office of Minority and Women's Business Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. The RECIPIENT must report to the DEPARTMENT at the time of submitting each invoice, on forms provided by the DEPARTMENT, payments made to qualified firms. Please include the following information: a) Name and state OMWBE certification number (if available) of any qualified finn receiving funds under the invoice, including any sub - and /or sub - subcontractors. • b) The total dollar amount paid to qualified funs under this invoice. PAYMENT REQUEST SUBMITTALS Frequency. The RECIPIENT must submit payment requests at least quarterly but no more often than monthly, unless allowed by the DEPARTMENT's Financial Manager. The DEPARTMENT's Financial Manager may require the RECIPIENT to submit regular payment requests to ensure efficient and timely use of funds. Supporting Documentation. The RECIPIENT must submit all payment request vouchers and supportive documentation to the DEPARTMENT's Financial Manager. Payment request voucher submittals are based on match requirements found in the budget. Required Fonns. • Any Match Combination Cash Only Match Where Applicable Form A19 -1A (original signature) Form A19 -1A (original signature) Form E (ECY 060 -12) Form B1 (ECY 060 -3) Form B2 (ECY 060-7) Form F (ECY 060 -13) Form Cl (ECY 060 -8) Form C2 (ECY 060 -9) Form H (F -21) Form D (ECY 060 -11) Form D (ECY 060 -11) Form I (ECY 060 -15) • 15 • Reporting eligible costs. The RECIPIENT must report all . eligible costs incurred on the project, regardless of the source of funding for those costs. This includes costs used as match. All eligible and ineligible project costs must be separate and identifiable. Reimbursements. Payments will be made on a cost - reimbursable basis. POST PROJECT ASSESSMENT The RECIPIENT agrees to submit a brief survey regarding the key project results or water quality project outcomes and the status of long -term environmental results or goals from the project three years after project completion. The DEPARTMENT's Water Quality Program Perfonnance Measures Lead will contact the RECIPIENT before the Post Project Assessment date to request this data. The DEPARTMENT may also conduct site interviews and inspections, and may otherwise evaluate the Project, as part of this assessment. PROCUREMENT The RECIPIENT certifies by signing this agreement that all applicable requirements have been satisfied in the procurement of any professional services. PROGRESS REPORTS The RECIPIENT must submit quarterly progress reports to the DEPARTMENT'S Financial Manger and Project Manager. Payment requests will not be processed without a progress report. Reporting Periods. • January 1 through March 31 • April 1 through June 30 • July 1 through September 30 • October 1 through December 31 Reporting Due Date. Quarterly progress reports are due 15 days following the end of the quarter. Report Content. At a minimum, all progress reports must contain a comparison of actual accomplishments to the objectives established for the period, the reasons for delay if established objectives were not met, analysis and explanation of any cost overruns, and any additional pertinent infonnation specified in this agreement. • REQUIRED DOCUMENT SUBMITTALS - The RECIPIENT must submit the following documents to the DEPARTMENT as requested by the DEPARTMENT's Project Manager or Financial Manager: • Draft project completion reports — up to three copies • 16 • • • Electronic copy of final project completion report — one copy • Final project completion reports — up to eight copies • Final project completion reports of statewide significance — up to 50 copies • Educational products developed under this agreement — up to two copies • Documents that require DEPARTMENT Approval — two copies (one for the DEPARTMENT and one for the RECIPIENT) • Interlocal agreements — one copy for the DEPARTMENT's Financial Manager • Professional services procurement agreements — 1 copy to the DEPARTMENT's Financial Manager Additional Required Document Submittals for the Federal Clean Water Act Section 319 Funded Projects and Centennial projects used by the DEPARTMENT to satisfy its Section 319 snatching requirement. • Federal Clean Water Act Section 319 Grant Data Reporting Form — 1 copy to DEPARTMENT's.Financial Manager during the first quarter following the effective date of the agreement • Federal Clean Water Act Section 319 Grant Load Reductions Reporting Form — 1 copy to the DEPARTMENT's Financial Manager by January 15 of each year. • • 17 0 ATTACHMENT II: 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 only use contractor /consultant assistance if that has been included in the agreement's final scope of work and budget. B. SUBGRANTEE /CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terns 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 full 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. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the DEPARTMENT. E. ASSIGNMENTS No right or claim 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 permits 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 Minority and Women's Business Enterprises to the maximum extent possible. If the agreement is federally- funded, the . RECIPIENT shall report to the DEPARTMENT 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. 18 4. Industrial Insurance. The RECIPIENT certifies full.cornpliance 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 common 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 grant/loan 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 RECIPIENT 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 tennination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A -133 (Audits of States, Local Governments & Non Profit Organizations), including the compliance Supplement to OMB Circular A -133, if the RECIPIENT expends $500,000 or more in a year in Federal funds. The $500,000 threshold for each year is a cumulative total of all federal funding from all sources. The RECIPIENT must forward a copy of the audit along with the RECIPIENT'S response and the final corrective action plan to the DEPARTMENT within 90 days of the date of the audit report. I. 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, 19 • . 0 April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be due within 30 days following the end of the quarter being reported. J. COMPENSATION. 1. Method of compensation. Payment shall nonnally be made on a reimbursable basis as specified in the grant agreement and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request fonns 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 approved 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 copy of this document shall be furnished to the RECIPIENT. When payment requests are approved by the DEPARTMENT, payments 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. Period of Compensation. Payments shall only be made for actions 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. 3. Final Request(s) for Payment. The RECIPIENT should submit final requests for compensation within forty -five (45) days after the expiration date pf this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply may result in delayed reimbursement. 4. 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. Monies withheld by the DEPARTMENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been completed 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. 5. Unauthorized Expenditures. All payments to the RECIPIENT may 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. 6. 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 for state employees. 7. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work hereunder. 20 • 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 there under and/or tenninate 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 other iaterials 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 the 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 ALL funds paid to the RECIPIENT in accordance with Section 0 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 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 terns 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 21 • • • • 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 are developed by the RECIPIENT 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 the DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3. Tangible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Ecology Grants and Loans ", Part V, 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 by 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 B -4 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 fair 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 reasonable. 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, Ton-ens 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. SUSTAINABLE PRODUCTS In order to sustain Washington's natural resources and ecosystems, the RECIPIENT is encouraged to implement sustainable practices where and when possible. These practices include 22 • use of clean energy, and purchase and use of sustainably produced products (e.g., recycled paper). For more information, see http:// www.ecy.wa.gov /sustainability /. O. 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 per year 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. P. 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 . 0 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. • Q. 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 snails 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. 23 0 R. 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 any corporation, partnership or association in which he /she is, directly or indirectly interested; nor shall he /she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. S: 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 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. T. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington. U. 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. V. 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 Terns and Conditions; (d) Any terns incorporated herein by reference including the "Administrative Requirements for Ecology Grants and Loans "; and (e) the General Terns and Conditions. SS -010 Rey. 04/04 • • • • 24