HomeMy WebLinkAbout03/20/2012 04G Salmon Recovery Grant Agreement; Washington State Recreation and Conservation Office •
1 �
�
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT .
Item No. �f G
For Meeting of: March 20, 2012
ITEM TITLE: Resolution for the City of Yakima Wastewater Division
to accept $275,400 Salmon Recovery Grant.
SUBMITTED BY: Scott Schafer, Wastewater Division Manager
Ryan Anderson, Wastewater Utility Engineer
CONTACT Ryan Anderson - (509) 249 -6813
PERSON/TELEPHONE:
SUMMARY EXPLANATION:
The levies within the Gap to Gap Reach of the Yakima River are to be set back in
order to meet the objectives of the Yakima River Basin Water Enhancement Project
and the Yakima County Flood Control Zone District. The City of Yakima (City)
wastewater treatment facility discharges approximately 13 million gallons of treated
effluent each day into the Gap to Gap Reach of the Yakima River in accordance with
its National Pollution Discharge Elimination System (NPDES) permit as issued by
the Department of Ecology (Ecology). Setting the levies back will cause the river to
move away; disrupting the City's permitted mixing zone and outfall discharge
location to the Yakima River and the City's ability to remain in compliance with its
NPDES permit. This will require the City to develop new outfall alternatives to
discharge to the river.
The City is currently conducting work on demo floodplain restoration projects in an
attempt to develop new outfall alternatives that benefit the greater Yakima Basin.
Once a new outfall alternative is finally submitted to and approved by Ecology, the
project is to be funded by the Gap to Gap sponsors as mitigation for requiring the
City to relocate its outfall.
The Washington State Recreation and Conservation Office (RCO) is awarding the
City a $275,400 Salmon Recovery Funding Board grant to complete phase one of its
demo floodplain ecosystem restoration project. The City is providing $157,000 of in-
kind and cash match budgeted for this project. RCO has determined that this
floodplain restoration project enhances wild salmon and steelhead recovery.
The Salmon Project Agreement has been enclosed for your review.
Other Salmon Project
Resolution X Ordinance (specify) Agreement -
Grant
Contract: X Mail to:
Contract Term: Amount: $275,400 Expiration Date: August 15,
2014
Insurance Required? No
Funding Wastewater Capital Fund 478 Phone:
Source:
APPROVED FOR City Manager
SUBMITTAL:
STAFF RECOMMENDATION:
Staff respectfully requests the City Council to approve the Resolution.
BOARD /COMMISSION RECOMMENDATION:
ATTACHMENTS:
Click to download
0 Resolution to accept $275,400 Salmon Recovery Grant
0 Salmon Project Grant Agreement
• RESOLUTION NO. R -2012-
A RESOLUTION authorizing the City Manager to execute an Agreement with the
Washington State Recreation and Conservation Office and City of Yakima
for a grant of $275,400 for improvements related to riparian zone outfall
alternatives at the City Wastewater Treatment Facility.
WHEREAS, the City of Yakima owns and operates wastewater collection and treatment
facilities in accord with applicable Federal, State and Local regulations, and
WHEREAS, the City of Yakima wastewater treatment facility outfall discharges to the
Gap to Gap Reach of the Yakima River; and
WHEREAS, the levies in the Gap to Gap reach of the Yakima River are being set back
in order to meet the objectives of the Yakima River Basin Water Enhancement Project and the
Yakima County Flood Control Zone District; and
WHEREAS, levy setback in the Gap to Gap Reach of the Yakima River will cause the
river to move away; disrupting the City's permitted mixing zone and outfall discharge location to
the Yakima River and the City's ability to remain in compliance with its NPDES permit with the
8 Department of Ecology (Ecology); and
WHEREAS, the levy setback requires development of new outfall location alternatives
for the City's treated wastewater to return to the Yakima River; and
WHEREAS, the City is currently conducting work on demo floodplain restoration projects
in an attempt to develop a new outfall alternative project allowing the City to remain in
compliances with its NPDES permit with Ecology and to benefit the greater Yakima Basin; and
WHEREAS, once a new outfall alternative project is finally submitted to and approved by
Ecology, the project is to be funded by the Gap to Gap project sponsors as mitigation for
requiring the City to relocate its outfall to the Yakima River; and
WHEREAS, this project is being completed in separate phases as grant funding or
other funding from Gap to Gap project sponsors is made available,
WHEREAS, Phase I of the riparian outfall project is eligible for grants from the
Washington State Recreation and Conservation Office; and
WHEREAS, the Washington State Recreation and Conservation Office is awarding the
City of Yakima a $275,400 Salmon Recovery Funding Board grant to complete Phase I of the
project,
WHEREAS, the City of Yakima Wastewater Division is providing $157,000 of in -kind and
0 cash match budgeted for the project,
NOW THEREFORE, The City of Yakima intends to enter into a project agreement with the
Washington State Recreation and Conservation Office, provided that the terms and conditions
for a Salmon Recovery Funding Board grant agreement are satisfactory to all parties; now, •
therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute all applicable documents and agreements
pursuant to a grant from the Washington State Recreation and Conservation Office in the
amount of Two Hundred Seventy Five Thousand Four Hundred Dollars ($275,400.00) for
development of new outran location alternatives for the City's treated wastewater to return to the
Yakima River.
ADOPTED BY THE CITY COUNCIL this 20 day of March, 2012.
ATTEST: Micah Cawley, Mayor
Sonya Claar -Tee, City Clerk
y WASHINGTON STATE
OW 77
�. �,Recreation and
fl Conservation Office Salmon Project Agreement
Salmon Funding Accounts
oject Sponsor: City of Yakima Project Number: 11-1565R
Project Title: City of Yakima Floodplain Ecosystem Restoration Approval Date: 12/9/2011
A. PARTIES OF THE AGREEMENT .-
This project grant Agreement (Agreement) is entered into between the State of Washington by and through the
Salmon Recovery Funding Board (SRFB) and the Recreation and Conservation Office, P 0 Box 40917, Olympia,
Washington 98504 -0917 and City of Yakima (sponsor), 129 N Second St, Yakima, WA 98901 and shall be binding on
the agents and all persons acting by or through the parties.
B. PURPOSE OF AGREEMENT
This Agreement sets out the terms and conditions by which a grant is made from the Salmon Funding Accounts of the
State of Washington. The grant is administered by the Recreation and Conservation Office (RCO) to the sponsor for
the project named above.
C. DESCRIPTION OF PROJECT
This project is a floodplain and off- channel habitat restoration project along river mile 109 of the Yakima River The
reach once hosted thousands of acres of naturally functioning floodplain that provided diverse habitat for resident and
anadromous fish, and a high level of ecological resiliency that benefited multiple species. The project site is owned by
the City of Yakima. The project will benefit steelhead, Coho and Chinook salmon, lamprey, and resident fish.
The project will reshape a shallow gravel -pit pond in the floodplain, restore the pond's outlet to the Yakima River and
enhance the value of intergravel flow on the site and downstream. This will involve re- shaping the landscape to reflect
floodplain shapes (horitzontal and vertical), re- establishing native floodplain and riparian vegetation, and replacing a
40 ft culvert with a structure that will allow for unrestricted movement of fish, water and substrate.
8 This project is the first phase of a three phase city project that will establish the highest ecological value at the site and
allow significant levy setback to occur throughout the project reach. This will lead to an additional 200 -300 acres of
restored habitat in the Gap to Gap reach on property owned by the City, the Greenway, Yakama Nation and
Washington Department of Transportation. Primarily, this will contribute to restoration of wild salmon and steelhead
recovery and will also have outdoor recreation benefits for birding, walking, jogging, and other trail use along the
greenway path.
D. PERIOD OF PERFORMANCE
The project reimbursement period shall begin on December 8, 2011 and end on August 15, 2014 No expenditure
made before or after this period is eligible for reimbursement unless incorporated by written amendment into this
Agreement or specifically provided for by RCFB and /or SRFB policy or WAC
Requests for time extensions are to be made at least 60 days before the Agreement end date. If the request is
made after the Agreement end date, the time extension will be denied.
The sponsor has obligations beyond this period of performance as described in Section E.
E. ON -GOING OBLIGATION
The Project Sponsor's ongoing obligation for the above project under this Agreement is to provide maintenance of the
site or facility to serve the purpose for which it was intended for a minimum of ten (10) years, or more as specified in
the Landowner Agreement, after the final payment unless the site or facility is rendered unusable for the purpose it
was intended by an act of nature.
F. 'PROJECT FUNDING
The total grant award provided by the funding board for this project shall not exceed $275,400 00. The funding board .
shall not pay any amount beyond that approved for grant funding of the project and within the funding board's
percentage as identified below The sponsor shall be responsible for all total project costs that exceed this amount.
The contribution by the sponsor toward work on this project at a minimum shall be as indicated below:
Percentage Dollar Amount
0 SRFB - Salmon Federal Projects 63.69% $275,400.00
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 1 of 18
PROJAGR.RPT
Project Sponsor 36.31% $157,000.00
Total Project Cost 100.00% $432,400.00
G. RIGHTS AND OBLIGATIONS
All rights and obligations of the parties to this Agreement are subject to this Agreement and its attachments, as now
existing or hereafter amended, including the sponsor's application, eligible scope activities, project milestones, and
the Standard Terms and Conditions of the project Agreement, all of which are incorporated herein.
Except as provided herein, no amendment/deletions of any of the terms or conditions of this Agreement will be
effective unless provided in writing. All such amendment/deletions must be signed by both parties except the RCO
director may unilaterally make amendments to extend the period of performance. Period of performance extensions
need only be signed by RCO's director or designee.
H. COMPLIANCE WITH APPLICABLE STATUTES, RULES, AND RCFB -SRFB POLICIES
This agreement is governed by, and the sponsor shall comply with, all applicable state and federal laws and
regulations, including Chapter 77.85 RCW, Chapter 420 WAC, and published agency policies, which are incorporated
herein by this reference as if fully set forth.
I. SPECIAL CONDITIONS
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 2 of 18
PROJAGR.RPT
1. Special Condition for EO 05 -05 Exemption due to Sect 106:
This project is subject to the National Historic Preservation Act, Section 106, and therefore appears to be
exempt from Governor's Executive Order 05 -05 Archaeological and Cultural Resources (EO 05 -05) as
do described in Section 9 of this project agreement. In order for this project to be exempt from EO 05 -05, the
Section 106 Area of Potential Effect (APE) must include all ground- disturbing activities subject to this
project agreement, including the restoration staging area. The sponsor is encouraged to work with the
federal permitting agency to align the Section 106 APE with the scope of work subject to this project
agreement. If the APE does not include all ground- disturbing activities subject to this project agreement,
promptly notify the RCO grant manager, as this will require RCO to initiate cultural resources consultation
following EO 05 -05 for those activities not included in the federal APE. Completion of this consultation and
a Notice to Proceed from RCO will be required before these ground- disturbing activities can begin.
2. Design Deliverables for Restoration Projects
This project will meet the standards for Design and Restoration Project Deliverables described in Manual
18 (February 2012) Appendix D 1 -4.
All restoration projects that include design elements shall follow four standard project development stages
described below..Restoration projects must complete all four project development stages:
1 Conceptual design (not applicable to this project)
2. Preliminary project design:
Preliminary designs must adequately describe all proposed project elements in sufficient detail for
permit review and authorization. While the design team must tailor the design process to suit the
unique circumstances of each project, the following project deliverables are required for
preliminary design projects.
a. Preliminary Design Report, Drawings, and Engineering Cost Estimate
b. Design Review Comments (optional)
c. Permit Applications (optional)
3. Final project design or Design -Build requirements, including -
Before beginning the final design process, the sponsor shall have completed a preliminary design
and design report and those items must have been submitted and accepted by the SRFB grant
It manager The final project design will incorporate comments provided by stakeholders, SRFB,
and /or permit agencies regarding the preliminary design report and on -site review
The final project design process essentially converts the preliminary design report (text and
drawings, etc.) into a stand -alone and comprehensive set of final design drawings (construction
drawings) and technical specifications for project construction Regardless of who conducts the
construction, a general contractor or the sponsor's own crew, the same final design drawings and
technical specifications need to be developed.
Final Design Deliverables
While the design team must tailor the design process to suit the unique circumstances of each
project, the following are required project deliverables for final design and restoration projects.
These required project deliverables must be accepted by RCO staff prior to the sponsor moving
forward to construction.
a. Design Review Comments
b Final Design Report and Drawings;
c. Technical Specifications,
d. Final Construction Quantities and Costs;
e. Contract Bidding Documents and General Contract Conditions (unless the project will be
built by sponsor crew), and
f. RCO Acceptance of Final Project Design
4 Construction Phase, including
Pre - Construction
a. Landowner Agreements
b. Proof of completion of Cultural Resources Consultation for ALL ground disturbing activities ,
c. Proof of permits
Post - Construction
d. As -built drawings.
d. Contract Bidding Documents and General Contract Conditions (unless the project will be
.built by sponsor crew); and
4. Construction Phase, including
Pre - Construction
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 3 of 18
PROJAGR.RPT
a. Landowner Agreements
b. Proof of completion of Cultural Resources Consultation for ALL ground disturbing activities ,
c. Proof of permits; and
Post - Construction
d. As -built drawings.
J. FEDERAL FUND INFORMATION
A portion or all of the funds for this project are provided through a federal funding source.
Funds provided from the US Dept of Commerce must be reported under CFDA #11 438 - Salmon Restoration and
Award Number NA11 NMF4380267 for federal fiscal year 2011
If the sponsor's total federal expenditures are $500,000.00 or more during the sponsor's fiscal -year, the sponsor is
required to have a federal single audit conducted for that year in compliance with Office of Management and Budget
CircularA -133. A copy of the final audit report must be provided to RCO within nine months of the end of the sponsor'
s fiscal year, unless a longer period is agreed to in advance by the cognizant or oversight agency
Failure to provide required A -133 audits will lead to a suspension of payments and may lead to a suspension of RCO
Agreements.
K. PROJECT GRANT AGREEMENT REPRESENTATIVE
All written communications and notices under this Agreement will be addressed and sent to at least the mail address
or the email address listed below if not both:
Project Contact SRFB
Name. Ryan Anderson Recreation and Conservation Office
Title: Utility Engineer Natural Resources Building
Address. 2220 E. Viola Avenue PO Box 40917
Yakima, WA 98902 Olympia, Washington 98504 -0917
Email: rcanders @ci.yakima.wa.us
These addresses shall be effective until receipt by one party from the other of a written notice of any change.
L. ENTIRE AGREEMENT
This Agreement, with all amendments and attachments, constitutes the entire Agreement of the parties. No other
understandings, oral or otherwise, regarding this Agreement shall exist or bind any of the parties.
M. EFFECTIVE DATE
This Agreement, for project 11- 1565R, shall be subject to the written approval of the RCO's authorized representative
and shall not be effective and binding until executed by both the Sponsor and the RCO Reimbursements for eligible
and allowable costs incurred within the period of performance identified in Section D above are allowed only when this
Agreement is fully executed and an original is received by RCO
1111
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 4 of 18
PROJAGR.RPT
The sponsor /s has read, fully understands, and agrees to be bound by all terms and conditions as set forth in this
Agreement, The signators listed below represent and warrant their authority to bind the parties to this Agreement.
dp City of Yakima
B Date;
Name: (printed)
Title:
State of Washington
On behalf of the Salmon Recovery Funding Board (SRFB)
B Date:
Kaleen Cottingham
Director, Recreation and Conservation Office
Pre - approved as to form.
By: /s/ Date: June 27, 2011
Assistant Attorney General
8
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 5 of 18
PROJAGR.RPT
Standard Terms and Conditions
of the Project Agreement
Table of Contents Page 41
SECTION 1. CITATIONS, HEADINGS AND DEFINITIONS 8
SECTION 2. PERFORMANCE BY THE SPONSOR 9
SECTION 3. ASSIGNMENT 9
SECTION 4. RESPONSIBILITY FOR PROJECT 9
SECTION 5. INDEMNIFICATION 9
SECTION 6. INDEPENDENT CAPAPCITY OF THE SPONSOR 9
SECTION 7. CONFLICT OF INTEREST 9
SECTION 8. ACKNOWLEDGMENT AND SIGNS 9
SECTION 9. COMPLIANCE WITH APPLICABLE LAW 10
SECTION 10. HAZARDOUS SUBSTANCES 11
SECTION 11. RECORDS 11
SECTION 12. TREATMENT OF ASSETS 11
SECTION 13. RIGHT OF INSPECTION 11
SECTION 14. STEWARDSHIP AND MONITORING 11
II
SECTION 15. DEBARMENT CERTIFICATION 12
SECTION 16. PROJECT FUNDING 12
SECTION 17. PROJECT REIMBURSEMENTS 12
SECTION 18. ADVANCE PAYMENTS 12
SECTION 19. RECOVERY OF PAYMENTS 13
SECTION 20. CONVENANT AGAINST CONTINGENT FEES 13
SECTION 21. PROVISIONS APPLYING TO DEVELOPMENT, RENOVATION AND
RESTORATION PROJECTS 13
SECTION 22. PROVISIONS APPLYING TO ACQUISITION PROJECTS 13
SECTION 23. RESTRICTION ON CONVERSION OF REAL PROPERTY
AND /OR FACILITIES TO OTHER USES 14
SECTION 24. CONSTRUCTION, OPERATION, USE AND MAINTENANCE
OF ASSISTED PROJECTS 14
SECTION 25. INCOME AND INCOME USE 15
SECTION 26. PREFERENCES FOR RESIDENTS 15 III
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 6 of 18
PROJAGR.RPT
SECTION 27. PROVISIONS RELATED TO CORPORATE (INCLUDING NONPROFIT)
to SPONSORS 15
SECTION 28. LIBAILITY INSURANCE REQUIRMENTS FOR FIREARMS
AND ARCHERY RANGE SPONSORS 15
SECTION 29. REQUIRMENTS OF THE NATIONAL PARK SERVICE 16
SECTION 30. FARMLAND PRESERVATION ACCOUNT 16
SECTION 31. ORDER OF PRECEDENCE 16
SECTION 32. AMENDMENTS 16
SECTION 33. LIMITATION OF AUTHORITY 16
SECTION 34. WAIVER OF DEFAULT 16
SECTION 35. APPLICATION REPRESENTATIONS - MISREPRESENTATIONS
OR INACCURACY OR BREACH 16
SECTION 36. SPECIFIC PERFORMANCE 17
SECTION 37. TERMINATION 17
SECTION 38. DISPUTE HEARING 17
SECTION 39. ATTORNEYS' FEES 17
SECTION 40. GOVERNING LAW/VENUE 18
SECTION 41. SEVERABILITY 18
•
0
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 7 of 18
PROJAGR.RPT
WASHINGTON STATE
`ri Recreation and
Conservation Office Standard Terms and Conditions
of the Project Agreement
• Project Sponsor: City of Yakima Project Number: 11 -1565R
Project Title: City of Yakima Floodplain Ecosystem Restoration Approval Date: 12/9/2011
SECTION 1. CITATIONS, HEADINGS AND DEFINITIONS
A. Any citations referencing specific documents refer to the current version at the date of project Agreement and /or any revisions in
the future.
B. Headings used in this Agreement are for reference purposes only and shall not be considered a substantive part of this
Agreement.
C Definitions. As used throughout this Agreement, the following terms shall have the meaning set forth below;
acquisition -The purchase of fee or less than fee interests in real property These interests include, but are not limited to,
options, right of first refusal, conservation easements, access /trail easements, covenants, water rights, leases, and mineral
rights.
Agreement - The accord accepted by all parties to the present transaction, this Agreement, any supplemental Agreements, any
amendments to this Agreement and any intergovernmental Agreements.
applicant - Any agency or organization that meets the qualifying standards, including deadlines, for submission of an application
soliciting a grant of funds from the funding Board.
application - The documents and other materials that an applicant submits to the RCO to support the applicant's request for
grant funds; this includes materials required for the "Application" in the RCO's automated project information system, and other
documents as noted on the application checklist including but not limited to legal opinions, evaluation presentations and scripts.
asset - Equipment purchased by the sponsor or acquired or transferred to the sponsor for the purpose of this Agreement. This
definition is restricted to non -fixed assets, including but not limited to vehicles, computers or machinery
cognizant or oversight agency - Federal agency responsible for ensuring compliance with federal audit requirements.
contractor - Shall mean one not in the employment of the sponsor who is performing all or part of the eligible activities for this
project under a separate Agreement with the sponsor The term "contractor" and "contractors" means contractor(s) in any tier
secondary sponsor - one of two or more eligible organizations that sponsors a grant- funded project. Of these two sponsors,
only one - the primary sponsor - may be the fiscal agent.
development - The construction of or work resulting in new elements, including but not limited to structures, facilities, and /or
materials to enhance outdoor recreation, salmon recovery or habitat conservation resources.
director - The chief executive officer of the Recreation and Conservation Office or that person's designee.
elements, items and worktypes - Components of the funded project as provided in the project description.
funding board - The board that authorized the funds in this Agreement, either the Recreation and Conservation Funding Board
(RCFB) created under chapter 79A.25.110 RCW, or the Salmon Recovery Funding Board (SRFB) created under chapter
77.85.110 RCW
grantee - The organizational entity or individual to which a grant (or cooperative agreement) is awarded and signatory to the
Agreement which is responsible and accountable both for the use of the funds provided and for the performance of the
grant- supported project or activities.
landowner agreement - A landowner agreement is required between a SRFB project sponsor and landowner for projects located
on land not owned, or otherwise controlled, by the sponsor
lower tier participant - refers to any sponsor receiving a federal grant through RCO Lower tier participants also refer to any
grantee, subgrantee, or contractor of any grantee or subgrantee from the original sponsor funded by RCO
milestone - An important event with a defined deadline for an activity related to implementation of a funded project.
period of performance - The time period specified in the Agreement, under Section D, period of performance.
project - The undertaking that is the subject of this Agreement and that is, or may be, funded in whole or in part with funds
administered by RCO on behalf of the funding board.
RCO - Recreation and Conservation Office - The state office that provides administrative support to the Recreation and
Conservation Funding Board and Salmon Recovery Funding Board. RCO includes the director and staff, created by Chapters
79A.25.110 and 79A.25.150 RCW and charged with administering this Agreement by Chapters 77.85.110 and 79A.25.240 RCW
reimbursement - Payment of eligible and allowable costs that have already been paid by the sponsor per the terms of the
Agreement.
renovation - The activities intended to improve an existing site or structure in order to increase its service life or functions. This
does not include maintenance activities.
restoration - Bringing a site back to its original function as part of a natural ecosystem or improving the ecological functionality of
a site.
sponsor - The eligible applicant who has been awarded a grant of funds and is bound by this executed Agreement; includes its
officers, employees, agents and successors.
subgrantee - The term subgrantee means the government or other legal entity to which a subgrant is awarded and which is
accountable to the grantee for the use of the funds provided.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 8 of 18
PROJAGR.RPT
;.
SECTION 2. PERFORMANCE BY THE SPONSOR
The sponsor, and secondary sponsor where applicable, shall undertake the project as described in this Agreement, post evaluation
mary, the sponsor's application, and in accordance with the sponsor's proposed goals and objectives described in the application
ocuments submitted with the application, all as finally approved by the funding board. All submitted documents are incorporated
this reference as if fully set forth herein. The Order of Precedence is covered in Section 31
Timely completion of the project and submission of required documents, including progress and final reports, is important. Failure to
meet critical milestones or complete the project, as set out in this Agreement, is a material breach of the Agreement.
SECTION 3. ASSIGNMENT
Neither this Agreement, nor any claim arising under this Agreement, shall be transferred or assigned by the sponsor without prior
written consent of the Recreation and Conservation Office.
SECTION 4. RESPONSIBILITY FOR PROJECT
While the funding board undertakes to assist the sponsor with the project by providing a grant pursuant to this Agreement, the project
itself remains the sole responsibility of the sponsor The funding board undertakes no responsibilities to the sponsor, a secondary
sponsor, or to any third party, other than as is expressly set out in this Agreement. The responsibility for the implementation of the
project is solely that of the sponsor, as is the responsibility for any claim or suit of any nature by any third party related in any way to
the project. When a project is sponsored by more than one entity, any and all sponsors are equally responsible for the project and all
post - completion stewardship responsibilities.
SECTION 5. INDEMNIFICATION
To the fullest extent permitted by the law, the sponsor expressly agrees to and shall indemnify, defend and hold harmless the State
and its agencies, officials, agents and employees from and against all claims, actions, costs, damages, or expenses of any nature
arising out of or incident to the sponsor's or any contractor's performance or failure to perform the Agreement. Sponsor's obligation to
indemnify, defend and hold harmless also includes any claim by sponsor's agents, employees, representatives or any contractor or its
employees. Sponsor's obligation to defend includes payment of any costs or attorneys' fees.
Sponsor's obligation shall not include such claims that may be caused by the sole negligence of RCO, its officials, agents, and
employees. If the claims or damages are caused by or result from the concurrent negligence of (a) RCO, its agents or employees and
he sponsor, its contractors, agents, or employees, this indemnity provision shall be valid and enforceable only to the extent of the
l igence of the sponsor or its contractors, agents, or employees. The sponsor expressly agrees to waive his /her immunity under
le 51 RCW (as to the State, and its agencies but not as to any employee, worker or third party) to the extent required to indemnify,
fend, and hold harmless the State and its agencies, officials, agents or employees.
SECTION 6. INDEPENDENT CAPACITY OF THE SPONSOR
The sponsor and its employees or agents performing under this Agreement are not officers, employees or agents of the funding board
or RCO The sponsor will not hold itself out as nor claim to be an officer, employee or agent of RCO, a funding board or of the state of
Washington, nor will the sponsor make any claim of right, privilege or benefit which would accrue to an employee under Chapters
41 06 or 28B RCW
The sponsor is responsible for withholding and /or paying employment taxes, insurance, or deductions of any kind required by federal,
state, and /or local laws.
SECTION 7. CONFLICT OF INTEREST
Notwithstanding any determination by the Executive Ethics Board or other tribunal, RCO may, in its sole discretion, by written notice to
the sponsor terminate this Agreement if it is found after due notice and examination by RCO that there is a violation of the Ethics in
Public Service Act, Chapter 42.52 RCW; or any similar statute involving the sponsor in the procurement of, or performance under, this
Agreement.
In the event this Agreement is terminated as provided above, RCO shall be entitled to pursue the same remedies against the sponsor
as it could pursue in the event of a breach of the Agreement by the sponsor The rights and remedies of RCO provided for in this
clause shall not be exclusive and are in addition to any other rights and remedies provided by law
SECTION 8. ACKNOWLEDGMENT AND SIGNS
A. Publications. The sponsor shall include language which acknowledges the funding contribution of the applicable grant program to
this project in any release or other publication developed or modified for, or referring to, the project during the project period and
in the future.
th Signs. The sponsor also shall post signs or other appropriate media during the project period and in the future at project
entrances and other locations on the project which acknowledge the applicable grant program's funding contribution, unless
exempted in funding board policy or waived by the director
C Ceremonies. The sponsor shall notify RCO no later than two weeks before a dedication ceremony for this project. The sponsor
shall verbally acknowledge the applicable grant program's funding contribution at all dedication ceremonies.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 9 of 18
PROJAGR.RPT
D Federally Funded Projects. When issuing statements, press releases, requests for proposals, bid solicitations, and other
documents describing a project funded in whole or in part with federal money provided for in this grant, sponsors shall clearly
state:
1 The percentage of the total costs of the project that is financed with federal money ,
2. The dollar amount of federal funds for the project; and
3. The percentage and dollar amount of the total costs of the project that is financed by nongovernmental sources
SECTION 9. COMPLIANCE WITH APPLICABLE LAW
The sponsor will implement the Agreement in accordance with applicable federal, state, and local laws, regulations and RCO and
funding board policies regardless of whether the sponsor is a public or non - public organization.
The sponsor shall comply with, and RCO is not responsible for determining compliance with, any and all applicable federal, state, and
local laws, regulations, and /or policies, including, but not limited to State Environmental Policy Act; Industrial Insurance Coverage,
Architectural Barriers Act; permits (shoreline, Hydraulics Project Approval, demolition), land use regulations (critical areas ordinances,
Growth Management Act); federal and state safety and health regulations (Occupational Safety and Health Administration/Washington
Industrial Safety and Health Act); and Buy American Act.
Endangered Species
For habitat restoration projects funded in part or whole with federal funds administered by the SRFB the sponsor shall not commence
with clearing of riparian trees or in -water work unless either the sponsor has complied with 50 CFR 223.203 (b)(8), limit 8 or until an
Endangered Species Act consultation is finalized in writing by the National Oceanic and Atmospheric Administration. Violation of this
requirement may be grounds for terminating this project Agreement. This section shall not be the basis for any enforcement
responsibility by RCO
Nondiscrimination Laws
The sponsor shall comply with all applicable federal, state, and local nondiscrimination laws and /or policies, including but not limited
to: the Americans with Disabilities Act; Civil Rights Act; and the Age Discrimination Act. In the event of the sponsor's noncompliance or
refusal to comply with any nondiscrimination law or policy, the Agreement may be rescinded, cancelled, or terminated in whole or in
part, and the sponsor may be declared ineligible for further grant awards from the funding board. The sponsor is responsible for any
and all costs or liability arising from the sponsor's failure to so comply with applicable law
Wages and Job Safety
The sponsor 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 The sponsor agrees to pay the prevailing wage rate to all workers, laborers, or mechanics
employed in the performance of any part of this contract if state law applies to the lands in question and the prevailing wage law
applies to the work being performed. The Washington State Department of Labor and Industries should be consulted to determine
whether prevailing wage laws apply Further the sponsor agrees to comply with the provisions of the Davis -Bacon Act as required,
and any other applicable federal laws.
Archaeological and Cultural Resources
The sponsor must comply with Executive Order 05 -05 or the National Historic Preservation Act before initiating ground disturbing
activity The funding board requires documented compliance with Executive Order 05 -05 or Section 106 of the National Historic
Preservation Act, whichever is applicable to the project. If a federal agency declines to consult, the sponsor shall comply with the
requirements of Executive Order 05 -05. In the event that archaeological or historic materials are discovered during project activities,
work in the location of discovery and immediate vicinity must stop instantly, the area must be secured, and notification must be
provided to the following: concerned Tribes' cultural staff and cultural committees, RCO, and the State Department of Archaeology
and Historic Preservation. If human remains are discovered during project activity, work in the location of discovery and immediate
vicinity must stop instantly, the area must be secured, and notification provided to the concerned Tribe's cultural staff and cultural
committee, RCO, State Department of Archaeology, the coroner and local law enforcement in the most expeditious manner possible
according to RCW 68.50
Restrictions on Grant Use
No part of any funds provided under this grant shall be used, other than for normal and recognized executive - legislative relationships,
for publicity or propaganda purposes, or for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, radio,
television, or video presentation designed to support or defeat legislation pending before the U.S Congress or any state legislature
No part of any funds provided under this grant shall be used to pay the salary or expenses of any sponsor, or agent acting for such
sponsor, related to any activity designed to influence legislation or appropriations pending before the U S Congress or any state
legislature.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 10 of 18
PROJAGR.RPT
SECTION 10. HAZARDOUS SUBSTANCES
A. Certification. The sponsor shall inspect, investigate, and conduct an environmental audit of the proposed acquisition site for the
dp presence of hazardous substances, as defined in Chapter 70.105D 020 (11) RCW, and certify'
1 No hazardous substances were found on the site, or
2. Any hazardous substances found have been treated and /or disposed of in compliance with applicable state and federal
laws, and the site deemed "clean."
B. Responsibility Nothing in this provision alters the sponsor's duties and liabilities regarding hazardous substances as set forth in
Chapter 70.105D RCW
c. Hold Harmless. The sponsor will defend, protect and hold harmless RCO and any and all of its employees and /or agents, from
and against any and all liability, cost (including but not limited to all costs of defense and attorneys' fees) and any and all loss of
any nature from any and all claims or suits resulting from the presence of, or the release or threatened release of, hazardous
substances on the property the sponsor is acquiring.
SECTION 11. RECORDS
A. Maintenance. The sponsor shall maintain books, records, documents, data and other evidence relating to this Agreement and
performance of the services described herein, including but not limited to accounting procedures and practices which sufficiently
and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement. Sponsor shall
retain such records for a period of six years from the date RCO deems the project complete , as defined in Section 17(C) below
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all
litigation, claims, or audit findings involving the records have been resolved.
B Access to records and data. At no additional cost, the records relating to the Agreement, including materials generated under the
Agreement, shall be subject at all reasonable times to inspection, review or audit by RCO, personnel duly authorized by RCO, the
Office of the State Auditor, and federal and state officials so authorized by law, regulation or Agreement. This includes access to
all information that supports the costs submitted for payment under the grant and all findings, conclusions, and recommendations
of the sponsor's reports, including computer models and methodology for those models.
C Public Records. Sponsor acknowledges that the funding board is subject to chapter 42.56 RCW and that this Agreement and any
records sponsor submits or has submitted to the State shall be a public record as defined in chapter 42.56 RCW Additionally, in
0 compliance with RCW 77 85 130(8), sponsor agrees to disclose any information in regards to expenditure of any funding
received from the SRFB. By submitting any record to the state sponsor understands that the State may be requested to disclose
or copy that record under the state public records law, currently codified at RCW 42.56. The sponsor warrants that it possesses
such legal rights as are necessary to permit the State to disclose and copy such document to respond to a request under state
public records laws. The Sponsor hereby agrees to release the State from any claims arising out of allowing such review or
copying pursuant to a public records act request, and to indemnify against any claims arising from allowing such review or
copying and pay the reasonable cost of state's defense of such claims.
SECTION 12. TREATMENT OF ASSETS
A. Assets shall remain in the possession of the sponsor for the duration of the project or applicable grant program. When the
sponsor discontinues use of the asset(s) for the purpose for which it was funded, RCO will require the sponsor to deliver the
asset(s) to RCO, dispose of the asset according to RCO policies, or return the fair market value of the asset(s) to RCO Assets
shall be used only for the purpose of this Agreement, unless otherwise provided herein or approved by RCO in writing.
B The sponsor shall be responsible for any loss or damage to assets which results from the negligence of the sponsor or which
results from the failure on the part of the sponsor to maintain and administer that asset in accordance with sound management
practices.
SECTION 13. RIGHT OF INSPECTION
The sponsor shall provide right of access to the project to RCO, or any of its officers, or to any other authorized agent or official of the
state of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance,
and /or quality assurance under this Agreement.
If a landowner Agreement or other form of control and tenure has been executed, it will further stipulate and define the funding board
and RCO's right to inspect and access lands acquired or developed with funding board assistance.
SECTION 14. STEWARDSHIP AND MONITORING
Sponsor agrees to perform monitoring and stewardship functions as stated in policy documents approved by the funding boards or
RCO Sponsor further agrees to utilize, where applicable and financially feasible, any monitoring protocols recommended by the
ding board.
•
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 11 of 18
PROJAGR.RPT
SECTION 15. DEBARMENT CERTIFICATION
A. For Federally Funded Projects
By signing the Agreement with RCO, the sponsor certifies that neither it nor its principals nor any other lower tier participant are
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this
transaction by any Federal department or agency Further, the sponsor agrees not to enter into any arrangements or contracts
related to this Agreement with any party that is on the "General Services Administration's Excluded from Federal Procurement or
Non - procurement Programs at http: / /www.epls.gov,
The sponsor (prospective lower tier participant) shall provide immediate written notice to RCO if at any time the prospective lower
tier participant learns that the above certification was not correct when submitted or has become erroneous by reason of changed
circumstances.
B. For State Funded Projects
By signing the Agreement with RCO, the sponsor certifies that neither it nor its principals nor any other lower tier participant are
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this
transaction by Washington State Labor and Industries. Further, the sponsor agrees not to enter into any arrangements or
contracts related to this Agreement with any party that is on the "Contractors not Allowed to Bid on Public Works Projects" list at
http: / /www Ini. wa. gov/ TradesLicensing/ PrevWage/ AwardingAgencies /DebarredContractors/
SECTION 16. PROJECT FUNDING
A. Additional Amounts. The funding board shall not be obligated to pay any amount beyond the dollar amount as identified in this
Agreement, unless an additional amount has been approved in advance by the funding board or director and incorporated by
written amendment into this Agreement.
B. Before the Agreement. No expenditure made, or obligation incurred, by the sponsor before the project start date shall be eligible
for grant funds, in whole or in part, unless specifically provided for by funding board policy, such as a waiver of retroactivity or
program specific eligible pre- Agreement costs. For reimbursements of such costs, this Agreement must be fully executed and an
original received by RCO The dollar amounts identified in this Agreement may be reduced as necessary to exclude any such
expenditure from reimbursement.
C After the period of performance. No expenditure made, or obligation incurred, following the period of performance shall be
eligible, in whole or in part, for grant funds hereunder In addition to any remedy the funding board may have under this
Agreement, the grant amounts identified in this Agreement shall be reduced to exclude any such expenditure from participation.
SECTION 17. PROJECT REIMBURSEMENTS
A. This contract is administered on a reimbursement basis. The sponsors may only request reimbursement after eligible and
allowable costs have already been paid by the sponsor and remitted to their vendors. RCO will then reimburse the sponsor for
those costs based upon RCO's percentage as defined in Section F of the Project Agreement of the amount billed to RCO RCO
does not reimburse for donations which the sponsor may use as part of its percentage. All reimbursement requests must include
proper documentation of expenditures as required by RCO
B Compliance and Payment. The obligation of RCO to pay any amount(s) under this Agreement is expressly conditioned on strict
compliance with the terms of this Agreement by the sponsor
C Compliance and Retainage. RCO reserves the right to withhold disbursement of up to the final ten percent (10 %) of the total
amount of the grant to the sponsor until the project has been completed. A project is considered "complete" when:
1 All approved or required activities outlined in the Agreement are done;
2. On -site signs are in place (if applicable);
3. Afinal project report is submitted to and accepted by RCO;
4 Any other required documents are complete and submitted to RCO;
5. Afinal reimbursement request is submitted to RCO;
6. The completed project has been accepted by RCO;
7 Final amendments have been processed; and
8. Fiscal transactions are complete.
9 RCO has accepted a final boundary map, if required for the project, for which the Agreement terms will apply in the future.
D Reimbursement Request Frequency Sponsors are encouraged to send RCO a reimbursement request at least quarterly
Sponsors are required to submit a reimbursement request to RCO, at a minimum for each project at least once a year for
reimbursable activities occurring between July 1 and June 30. Sponsors must refer to the most recently published /adopted RCO
policies and procedures regarding reimbursement requirements.
SECTION 18. ADVANCE PAYMENTS
Advance payments of or in anticipation of goods or services to be provided under this Agreement are limited to grants approved by
the SRFB and must comply with SRFB policy See WAC 420 -12 -060 (5).
•
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 12 of 18
PROJAGR.RPT
SECTION 19. RECOVERY OF PAYMENTS
In the event that the sponsor fails to expend funds under this Agreement in accordance with state and federal laws, and /or the
'visions of the Agreement, or meet its percentage of the project total, RCO reserves the right to recover grant award funds in the
1 • unt equivalent to the extent of noncompliance in addition to any other remedies available at law or in equity
i
he sponsor shall reimburse RCO for any overpayment or erroneous payments made under the Agreement. Repayment by the
sponsor of such funds under this recovery provision shall occur within 30 days of demand by RCO Interest shall accrue at the rate of
twelve percent (12 %) per annum from the time that payment becomes due and owing.
SECTION 20. COVENANT AGAINST CONTINGENT FEES
The sponsor warrants that no person or selling agent has been employed or retained to solicit or secure this Agreement on an
Agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide
established agents maintained by the sponsor for the purpose of securing business. RCO shall have the right, in the event of breach
of this clause by the sponsor, to terminate this Agreement without liability or, in its discretion, to deduct from the Agreement grant
amount or consideration or recover by other means the full amount of such commission, percentage, brokerage or contingent fee.
SECTION 21. PROVISIONS APPLYING TO DEVELOPMENT, RENOVATION AND RESTORATION PROJECTS
The following provisions shall be in force only if the project described in this Agreement is for development, renovation and restoration
of land or facilities for outdoor recreation, habitat conservation, or salmon recovery:
A Document Review and Approval. The sponsor agrees to submit one copy of all development, renovation, restoration or
construction plans and specifications to RCO for review prior to implementation. Review and approval by RCO will be for
compliance with the terms of this Agreement.
g Contracts for Development, Renovation or Restoration. Sponsors must follow any applicable state and /or required federal
procurement procedures. If such procedures do not apply, Sponsor must follow these minimum procedures: (1) publish a notice
to the public requesting bids /proposals for the project (2) specify in the notice the date for submittal of bids /proposals (3)specify
in the notice the general procedure and criteria for selection; and (4) comply with the same legal standards regarding unlawful
discrimination based upon race, ethnicity, sex, or sex - orientation that are applicable to state agencies in selecting a bidder or
proposer This procedure creates no rights for the benefit of third parties, including any proposers, and may not be enforced or
subject to review of any kind or manner by any other entity other than the RCO' Sponsors may be required to certify to the RCO
I they have followed any applicable state and /or federal procedures or the minimum procedure where the former procedures do not
apply
Contract Change Order Only change orders that impact the amount of funding or changes to the scope of the project as
described to and approved by the funding board or RCO must receive prior written approval.
D Control and Tenure. The sponsor must provide documentation that shows appropriate tenure (land owner Agreement, long term
lease Agreement easement, or fee simple ownership) for the land proposed for development, renovation or restoration. The
documentation must meet current RCO requirements.
E. Nondiscrimination. Except where a nondiscrimination clause required by a federal funding agency is used, the sponsor shall
insert the following nondiscrimination clause in each contract for construction of this project
"During the performance of this contract, the contractor agrees to comply with all
federal and state nondiscrimination laws, regulations and policies."
F Use of Best Management Practices. Project sponsors are encouraged to use best management practices developed as part of-
the Washington State Aquatic Habitat Guidelines (AHG) Program. The best management practices are described in three
documents. "Stream Habitat Restoration Guidelines: Final Draft", 2004, "Design of Road Culverts for Fish Passage ", 2003, and
"Integrated Streambank Protection Guidelines ", 2002. These documents and other information can be found on the AHG website.
SECTION 22. PROVISIONS APPLYING TO ACQUISITION PROJECTS
The following provisions shall be in force only if the project described in this Agreement is for the acquisition of interest in real property
(including easements) for outdoor recreation, habitat conservation, salmon recovery purposes, or farmland preservation:
A Evidence of Land Value. Before disbursement of funds by RCO as provided under this Agreement, the sponsor agrees to supply
documentation acceptable to RCO that the cost of the property rights acquired has been established according to funding board
policy
B Evidence of Title. The sponsor agrees to provide documentation that shows the type of ownership interest for the property that
has been acquired. This shall be done before any payment of financial assistance.
C Legal Description of Real Property Rights Acquired. The legal description of the real property rights purchased with funding
assistance provided through this project Agreement (and protected by a recorded conveyance of rights to the State of
el Washington) shall be incorporated into the Agreement before final payment.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 13 of 18
PROJAGR.RPT
D Conveyance of Rights to the State of Washington. Document securing long -term rights for the State of Washington. When real
property rights (both fee simple and lesser interests) are acquired, the sponsor agrees to execute an appropriate document
conveying certain rights and responsibilities to RCO, on behalf of the State of Washington. These documents include a Deed of
Right, Assignment of Rights, Easements and /or Leases. The sponsor agrees to use document language provided by RCO, to
record the executed document in the County where the real property lies, and to provide a copy of the recorded document to
RCO The document required will vary depending on the project type, the real property rights being acquired and whether or not
those rights are being acquired in perpetuity
1 Deed of Right. The Deed of Right conveys to the people of the state of Washington the right to preserve, protect, and /or
use the property for public purposes consistent with the fund source. Sponsors shall use this document when acquiring real
property rights that include the underlying land. This document may also be applicable for those easements where the
sponsor has acquired a perpetual easement for public purposes.
2. Assignment of Rights. The Assignment of Rights document transfers certain rights such as access and enforcement to
RCO Sponsors shall use this document when an easement or lease is being acquired for habitat conservation or salmon
recovery purposes. The Assignment of Rights requires the signature of the underlying landowner and must be incorporated
by reference in the easement document.
3. Easements and Leases. The sponsor may incorporate required language from the Deed of Right or Assignment of Rights
directly into the easement or lease document, thereby eliminating the requirement for a separate document. Language will
depend on the situation, sponsor must obtain RCO approval on the draft language prior to executing the easement or lease.
E. Real Property Acquisition and Relocation Assistance
1 When federal funds are part of this Agreement, the Sponsor agrees to comply with the terms and conditions of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894 (1970) -- Public Law 91 -646, as
amended by the Surface Transportation and Uniform Relocation Assistance Act, PL 100 -17 -1987, and applicable regulations
and procedures of the federal agency implementing that Act.
2. When state funds are part of this Agreement, the sponsor agrees to comply with the terms and conditions of the Uniform
Relocation Assistance and Real Property Acquisition Policy of the State of Washington, Chapter 8.26.010 RCW, and
Chapter 468 -100 WAC
3. Housing and Relocation. In the event that housing and relocation costs, as required by federal law set out in subsection (1)
above and /or state law set out in subsection (2) above, are involved in the execution of this project, the sponsor agrees to
provide any housing and relocation assistance required. i
F Buildings and Structures. In general, grant funds are to be used for outdoor recreation, habitat conservation, or salmon recovery
Sponsors agree to remove or demolish ineligible structures. Sponsors must consult RCO regarding compliance with section 9 -
Archaeological and Cultural Resources before structures are removed or demolished.
G Archaeological and Cultural Resources. The sponsor agrees that any real property interests acquired under this Agreement, if to
be subject to land disturbing activities in the future, is.subject to Governor's Executive Order 05 -05 or the National Preservation
Historic Act (S 106). The sponsor further agrees that ground disturbing activity will not occur until RCO has been notified and
determines if a cultural resources review is needed.
SECTION 23. RESTRICTION ON CONVERSION OF REAL PROPERTY AND /OR FACILITIES TO OTHER USES
The sponsor shall not at any time convert any real property or facility acquired, developed, and /or restored pursuant to this Agreement
to uses other than those purposes for which funds were approved without prior approval of the funding board in compliance with
applicable statutes, rules, and funding board policies. It is the intent of the funding board's conversion policy, current or as amended
in the future, that all real property or facilities acquired, developed and /or restored with funding assistance remain in the public domain
in perpetuity unless otherwise identified in the Agreement or as approved by the funding board. Determination of whether a
conversion has occurred shall be based upon applicable law and RCFB /SRFB policies.
When a conversion has been determined to have occurred, the sponsor is required to remedy the conversion per established funding
board policies.
SECTION 24. CONSTRUCTION, OPERATION, USE AND MAINTENANCE OF ASSISTED PROJECTS
For acquisition, development, renovation and restoration projects, sponsors must ensure that properties or facilities assisted with
funding board funds, including undeveloped sites, are built, operated, used, and maintained:
A. According to applicable federal, state, and local laws and regulations, including public health standards and building codes.
B In a reasonably safe condition for the project's intended use.
C Throughout its estimated life so as to prevent undue deterioration.
D. In compliance with all federal and state nondiscrimination laws, regulations and policies.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 14 of 18
PROJAGR.RPT
For acquisition, development, renovation and restoration projects, facilities open and accessible to the general public must:
E. Be constructed and maintained to meet or exceed the minimum requirements of the most current local or state codes, Uniform
Federal Accessibility Standards, guidelines, or rules, including but not limited to: the International Building Code, the Americans
with Disabilities Act, and the Architectural Barriers Act, as updated.
Appear attractive and inviting to the public except for brief installation, construction, or maintenance periods.
G. Be available for use by the general public without reservation at reasonable hours and times of the year, according to the type of
area or facility
SECTION 25. INCOME AND INCOME USE
A Income. •
1 Compatible source. The source of any income generated in a funded project or project area must be compatible with the
funding source and the Agreement.
2. Fees. User and /or other fees may be charged in connection with land acquired or facilities developed with funding board
grants if the fees are consistent with the:
(a) Value of any service(s) furnished;
(b) Value of any opportunities furnished; and
(c) Prevailing range of public fees in the state for the activity involved.
Excepted are Firearms and Archery Range Recreation Program safety classes (firearm and /or hunter) for which a
facility /range fee must not be charged (Chapter 79A.25.210 RCW).
B. Income use. Regardless of whether income or fees in a project work site (including entrance, utility corridor permit, cattle grazing,
timber harvesting, farming, etc.) are gained during or after the reimbursement period cited in the Agreement, unless precluded by
state or federal law, the revenue may only be used to offset:
1 The sponsor's matching funds,
2. The project's total cost;
3. The expense of operation, maintenance, stewardship, monitoring, and /or repair of the facility or program assisted by the
funding board grant;
8 4 The expense of operation, maintenance, stewardship, monitoring, and /or repair of other similar units in the sponsor's
system; and /or
5. Capital expenses for similar acquisition and /or development.
SECTION 26. PREFERENCES FOR RESIDENTS
Sponsors shall not express a preference for users of grant assisted projects on the basis of residence (including preferential
reservation, membership, and /or permit systems) except that reasonable differences in admission and other fees may be maintained
on the basis of residence. Even so, the funding board discourages the imposition of differential fees. Fees for nonresidents must not
exceed twice the fee imposed on residents. Where there is no fee for residents but a fee is charged to nonresidents, the nonresident
fee shall not exceed the amount that would be imposed on residents at comparable state or local public facilities.
SECTION 27. PROVISIONS RELATED TO CORPORATE (INCLUDING NONPROFIT) SPONSORS
A corporate sponsor, including any nonprofit sponsor, shall:
A. Maintain corporate status with the state, including registering with the Washington Secretary of State's office, throughout the
sponsor's obligation to the project as identified in the Agreement.
B. Notify RCO prior to corporate dissolution. Within 30 days of dissolution the sponsor shall name a qualified successor that will
agree in writing to assume any on -going project responsibilities. A qualified successor is any party eligible to apply for funds in
the subject grant program and capable of complying with the terms and conditions of this Agreement. RCO will process an
amendment transferring the sponsor's obligation to the qualified successor if requirements are met.
C Sites or facilities open to the public may not require exclusive use, (e.g., members only).
SECTION 28. LIABILITY INSURANCE REQUIREMENTS FOR FIREARMS AND ARCHERY RANGE SPONSORS
A. The sponsor of a firearms or archery range recreation project shall.procure an endorsement, or other addition, to liability
insurance it may currently carry, or shall procure a new policy of liability insurance, in a total coverage amount the sponsor
deems adequate to ensure it will have resources to pay successful claims of persons who may be killed or injured, or suffer
damage to property, while present at the range facility to which this grant is related, or by reason of being in the vicinity of that
do facility; provided that the coverage shall be at least one million dollars ($1,000,000) for the death of, or injury to, each person.
The liability insurance policy, including any endorsement or addition, shall name Washington State, the funding board, and RCO
as additional insured and shall be in a form approved by the funding board or director
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 15 of 18
PROJAGR.RPT
C The policy, endorsement or other addition, or a similar liability insurance policy meeting the requirements of this section, shall be
kept in force throughout the sponsor's obligation to the project as identified in this Agreement.
D The policy, as modified by any endorsement or other addition, shall provide that the issuing company shall give written notice to
RCO not less than thirty (30) calendar days in advance of any cancellation of the policy by the insurer, and within ten (10)
calendar days following any termination of the policy by the sponsor
E. The requirement of Subsection A through D above shall not apply if the sponsor is a federal, state, or municipal government
which has established a program of self- insurance or a policy of self - insurance with respect to claims arising from its facilities or
activities generally, including such facilities as firearms or archery ranges, when the applicant declares and describes that
program or policy as a part of its application to the funding board.
F By this requirement, the funding board and RCO does not assume any duty to any individual person with respect to death, injury,
or damage to property which that person may suffer while present at, or in the vicinity of, the facility to which this grant relates.
Any such person, or any other person making claims based on such death, injury, or damage, must look to the sponsor, or
others, for any and all remedies that may be available by law
SECTION 29. REQUIREMENTS OF THE NATIONAL PARK SERVICE
If the project has been approved by the National Park Service, US Department of the Interior, for funding assistance from the federal
Land and Water Conservation Fund (LWCF), the "Project Agreement General Provisions" in the LWCF State Assistance Program
Federal Financial Assistance Manual are also made part of this Agreement. The sponsor shall abide by these LWCF General
Provisions, in addition to this Agreement, as they now exist or are hereafter amended. Further, the sponsor agrees to provide RCO
with reports or documents needed to meet the requirements of the LWCF General Provisions.
SECTION 30. FARMLAND PRESERVATION ACCOUNT
For projects funded through the Washington Wildlife and Recreation Program Farmland Preservation Account, the following sections
will not apply if covered separately in a recorded RCO approved Agricultural Conservation Easement.
• Section 8 - Acknowledgement and Signs,
• Section 10 - Hazardous Substances,
• Section 14 - Stewardship and Monitoring
• Section 22 - Provisions Applying to Acquisition Projects, Sub - sections F and G.
• Section 23 - Restriction on Conversion of Real Property and /or Facilities to Other Uses, and
• Section 24 - Construction, Operation, Use and Maintenance of Assisted Projects, Sub - sections E, F, and G
• Section 25 - Income and Income Use
SECTION 31. ORDER OF PRECEDENCE
This Agreement is entered into, pursuant to, and under the authority granted by applicable federal and state laws. The provisions of
the Agreement shall be construed to conform to those laws. In the event of an inconsistency in the terms of this Agreement, or
between its terms and any applicable statute, rule, or policy or procedure, the inconsistency shall be resolved by giving precedence in
the following order
A. Applicable federal and /or state statutes, regulations, policies and procedures including RCO /funding board policies and
procedures, applicable federal Office of Management and Budget (OMB) circulars and federal and state executive orders;
B. Project agreement including attachments,
C Special Conditions;
D Standard Terms and Conditions of the Project Agreement.
SECTION 32. AMENDMENTS
Amendments to this Agreement shall be binding only if in writing and signed by personnel authorized to bind each of the parties
except period of performance extensions and minor scope adjustments need only be signed by RCO's director or designee.
SECTION 33. LIMITATION OF AUTHORITY
Only RCO or RCO's delegate by writing (delegation to be made prior to action) shall have the express, implied, or apparent authority
to alter, amend, modify, or waive any clause or condition of this Agreement. Furthermore, any alteration, amendment, modification, or
waiver of any clause or condition of this Agreement is not effective orbinding unless made in writing and signed by RCO.
SECTION 34. WAIVER OF DEFAULT
Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver or breach of any provision of the
Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of
the terms of the Agreement unless stated to be such in writing, signed by the director, or the director's designee, and attached to the
original Agreement.
SECTION 35. APPLICATION REPRESENTATIONS -- MISREPRESENTATIONS OR INACCURACY OR BREACH
The funding board and RCO rely on the sponsor's application in making its determinations as to eligibility for, selection for, and scope
of, funding grants. Any misrepresentation, error or inaccuracy in any part of the application may be deemed a breach of this
Agreement.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 16 of 18
PROJAGR. RPT
SECTION 36. SPECIFIC PERFORMANCE
The funding board and RCO may enforce this Agreement by the remedy of specific performance, which usually will mean completion
he project as described in this Agreement. However, the remedy of specific performance shall not be the.sole or exclusive remedy
ilable to RCO No remedy available to the funding board or RCO shall be deemed exclusive. The funding board or RCO may elect
e xercise any, a combination of, or all of the remedies available to it under this Agreement, or under any provision of law, common
a w, or equity
SECTION 37. TERMINATION
The funding board and RCO will require strict compliance by the sponsor with all the terms of this Agreement including, but not limited
to, the requirements of the applicable statutes, rules and all funding board and RCO policies, and with the representations of the
sponsor in its application for a grant as finally approved by the funding board
A. For Cause. The funding board or the director may suspend or terminate the obligation to provide funding to the sponsor under
this Agreement:
i. In the event of any breach by the sponsor of any of the sponsor's obligations under this Agreement; or
ii. If the sponsor fails to make progress satisfactory to the funding board or director toward completion of the project by the
completion date set out in this Agreement. Included in progress is adherence to milestones and other defined deadlines
In the event this Agreement is terminated by the funding board or director, under this section or any other section after any
portion of the grant amount has been paid to the sponsor under this Agreement, the funding board or director may require that
any amount paid be repaid to RCO for redeposit into the account from which the funds were derived.
B. Non Availability of Funds. The obligation of the RCO to make payments is contingent on the availability of state and federal funds
through legislative appropriation and state allotment. If amounts sufficient to fund the grant made under this Agreement are not
appropriated to RCO for expenditure for this Agreement in any biennial fiscal period, RCO shall not be obligated to pay any
remaining unpaid portion of this grant unless and until the necessary action by the Legislature or the Office of Financial
Management occurs. If RCO participation is suspended under this section for a continuous period of one year, RCO's obligation
to provide any future funding under this Agreement shall terminate. Termination of the Agreement under this section is not
subject to appeal by the sponsor
C For Convenience. Except as otherwise provided in this Agreement, RCO may, by ten (10) days written notice, beginning on the
second day after the mailing, terminate this Agreement, in whole or in part. If this Agreement is so terminated, RCO shall be liable
I only for payment required under the terms of this Agreement for services rendered or goods delivered prior to the effective date of
termination.
T ION 38. DISPUTE HEARING
ept as may otherwise be provided in this Agreement, when a dispute arises between the sponsor and the funding board, which
cannot be resolved, either party may request a dispute hearing according to the process set out in this section. Either party's request
for a dispute hearing must be in writing and clearly state:
A. The disputed issues,
B. The relative positions of the parties;
C The sponsor's name, address, project title, and the assigned project number
In order for this section to apply to the resolution of any specific dispute or disputes, the other party must agree in writing that the
procedure under this section shall be used to resolve those specific issues. The dispute shall be heard by a panel of three persons
consisting of one person chosen by the sponsor, one person chosen by the director, and a third person chosen by the two persons
initially appointed. If a third person cannot be agreed on, the third person shall be chosen by the funding board's chair
Any hearing under this section shall be informal, with the specific processes to be determined by the disputes panel according to the
nature and complexity of the issues involved. The process may be solely based on written material if the parties so agree. The
disputes panel shall be governed by the provisions of this Agreement in deciding the disputes.
The parties shall be bound by the decision of the disputes panel, unless the remedy directed by that panel shall be without the
authority of either or both parties to perform, as necessary, or is otherwise unlawful.
Request for a disputes hearing under this section by either party shall be delivered or mailed to the other party The request shall be
delivered or mailed within thirty (30) days of the date the requesting party has received notice of the action or position of the other
party which it wishes to dispute. The written Agreement to use the process under this section for resolution of those issues shall be
delivered or mailed by the receiving party to the requesting party within thirty (30) days of receipt by the receiving party of the request.
All costs associated with the implementation of this process shall be shared equally by the parties.
O TION 39. ATTORNEYS' FEES
e event of litigation or other action brought to enforce contract terms, each party agrees to bear its own attorney fees and costs.
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77 85 RCW, Chapter 420 WAC Page 17 of 18
PROJAGR.RPT
SECTION 40. GOVERNING LAWNENUE
This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington. In the event of a lawsuit
involving this Agreement, venue shall be in Thurston County Superior Court if legally proper; otherwise venue shall be in a county
where the project is situated. The sponsor, by execution of this Agreement acknowledges the jurisdiction of the courts of the State of
Washington.
•
In the cases where this Agreement is between the funding board and a federally recognized Indian Tribe, the following governing
law /venue applies:
A. Notwithstanding the above venue provision, if the State of Washington intends to initiate a lawsuit against a federally recognized
Indian tribe relating to the performance, breach or enforcement of this Agreement, it shall so notify the Tribe. If the Tribe believes
that a good faith basis exists for subject matter jurisdiction of such a lawsuit in federal court, the Tribe shall so notify the State
within five days of receipt of such notice and state the basis for such jurisdiction. If the Tribe so notifies the State, the State shall
bring such lawsuit in federal court; otherwise the State may sue the Tribe in the Thurston County Superior Court. Interpretation of
the Agreement shall be according to applicable State law, except to the extent preempted by federal or tribal law In the event
suit is brought in federal court and the federal court determines that it lacks subject matter jurisdiction to resolve the dispute
between the State and Tribal Party, then the parties agree to venue in Thurston County Superior Court.
B. Any judicial award, determination, order, decree or other relief, whether in law or equity or otherwise, resulting from such a
lawsuit shall be binding and enforceable on the parties. Any money judgment or award against a Tribe, tribal officers and
members, or the State of Washington and its officers and employees may exceed the amount provided for in Section F- Project
Funding of the Agreement in order to satisfy the judgment.
C The Tribe hereby waives its sovereign immunity to legal actions as may be brought pursuant to this section, and to the
enforcement of any judgment from such legal actions. This waiver is not for the benefit of any third party and shall not be
enforceable by any third party or by any assignee of the parties. In any enforcement action, the parties shall bear their own
enforcement costs, including attorneys' fees.
SECTION 41. SEVERABILITY
The provisions of this Agreement are intended to be severable. If any term or provision is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity of the remainder of the Agreement.
110
Salmon Project Agreement - RCO #11 -1565R Salmon Funding Accounts
Chapter 77.85 RCW, Chapter 420 WAC Page 18 of 18
PROJAGR.RPT