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:
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• 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
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• 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
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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
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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
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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.
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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
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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
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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
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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
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❑ 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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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• 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.
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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
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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)
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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
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• 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.
•
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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.
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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,
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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.
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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
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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
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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.
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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 •
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