HomeMy WebLinkAbout 08/17/2021 06.H. Resolution authorizing an Agreement with Washington State Recreation and Conservation Office for a grant of $4,134,000 for Nelson Dam Removal: Water Supply, Riverine Process and Fish Passage Improvements 14-4111\l'A
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 6.H.
For Meeting of:August 17, 2021
ITEM TITLE: Resolution authorizing an Agreement with Washington State
Recreation and Conservation Office for a grant of $4,134,000 for
Nelson Dam Removal: Water Supply, Riverine Process and Fish
Passage Improvements
SUBMITTED BY: Scott Schafer, Director of Public Works
David Brown,Assistant Director of Public Works, 509.575.6204
SUMMARY EXPLANATION:
This is an Agreement with the Washington State Recreational and Conservation Office (RCO)for
the Brian Abbott Fish Barrier Removal Board Grant. The City of Yakima (City) applied for this
grant last year and was selected first out of 88 other applicants.
The grant will fund $4,134,000 towards the Nelson Dam Removal: Water Supply, Riverine
Process and Fish Passage Improvement project. This project will remove the existing Nelson
Dam and replace it with a roughened channel that will improve fish passage and provide for a
more reliable water supply for irrigation. A copy of Agreement 20-1601 R is attached for City
Council review.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Partnership Development
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt Resolution
ATTACHMENTS:
Description Upload Date Type
❑ Resolution t/28/2021 Resolution
0 Agreement 8/9/2021 Corer Memo
2
RESOLUTION NO. R-2021-
A RESOLUTION authorizing execution of an Agreement with Washington State Recreation
and Conservation Office for a grant of$4,134,000 for Nelson Dam
Removal: Water Supply, Riverine Process and Fish Passage
Improvements, Project IC2010
WHEREAS, funding has been provided under the Brian Abbott Fish Barrier Removal
Board for fish migration barriers, passage improvement and reliability of water supplies in
Washington, and
WHEREAS, the City of Yakima owns the Nelson Dam at West Powerhouse Road and
South Naches Road in accord with applicable Federal, State and Local regulations, and
WHEREAS, the City of Yakima operates and maintains the Nelson Dam and the
irrigation delivery system in accord with applicable Federal, State and Local regulations;
and
WHEREAS, the City is interested in an environmentally beneficial project for improving
the efficiency of water use for irrigation and improve fish passage, and
WHEREAS, Washington State Recreation and Conservation Office provided the City of
Yakima a $4,134,000 grant to remove the Nelson dam and replace with a roughened channel
for improved fish passage and a more reliable water supply, a copy of the Agreement 20-1601 R
is attached hereto and incorporated herein by this reference; and
WHEREAS, the City Council finds and determines that approval of such Grant
Agreement is in the best interests of residents of the City of Yakima and will promote the
general health, safety and welfare; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Council approves the Agreement and authorizes the City Manager to execute
and administer such Agreement with Washington State Recreation and Conservation Office,
to execute and administer all applicable documents and agreements pursuant to such grant
from Washington State Recreation and Conservation Office.
ADOPTED BY THE CITY COUNCIL this 17th day of August, 2021.
ATTEST: Patricia Byers, Mayor
Sonya Claar Tee, City Clerk
WASHINC10,1}TATE RCO Grant Agreement
Recreation and
Conservation Office
Project Sponsor: City of Yakima Project Number:20-1601R
Number:IC2010
Project Title: Nelson Dam Removal Fish Passage Improvements Approval Date:05/27/2021
PARTIES OF THE AGREEMENT
This Recreation and Conservation Office Grant Agreement(Agreement)is entered into between the State of Washington by
and through the Department of Fish and Wildlife(WDFW or Funding Entity)acting through the Recreation and Conservation
Office(RCO), P.O. Box 40917, Olympia,Washington 98504-0917 and City of Yakima (Sponsor, and primary Sponsor), 129 N
Second St, Yakima,WA 98901, and shall be binding on the agents and all persons acting by or through the parties.
All Sponsors are equally and independently subject to all the conditions of this Agreement except those conditions that
expressly apply only to the primary Sponsor.
Prior to and during the Period of Performance, per the Applicant Resolution/Authorizations submitted by all Sponsors(and on
file with the RCO), the identified Authorized Representative(s)/Agent(s)have full authority to legally bind the Sponsor(s)
regarding all matters related to the project identified above, including but not limited to, full authority to: (1)sign a grant
application for grant assistance, (2)enter into this Agreement on behalf of the Sponsor(s), including indemnification,as
provided therein, (3)enter any amendments thereto on behalf of Sponsor(s),and(4)make any decisions and submissions
required with respect to the project.Agreements and amendments must be signed by the Authorized Representative/Agent(s)
of all Sponsors, unless otherwise allowed in the AMENDMENTS TO AGREEMENT Section.
A. During the Period of Performance, in order for a Sponsor to change its Authorized Representative/Agent as identified
on the original signed Applicant Resolution/Authorization the Sponsor must provide the RCO a new Applicant
Resolution/Authorization signed by its governing body or a written delegation of authority to sign in lieu of originally
authorized Representative/Agency(s). Unless a new Applicant Resolution/Authorization has been provided,the RCO
shall proceed on the basis that the person who is listed as the Authorized Representative in the last
Resolution/Authorization that RCO has received is the person with authority to bind the Sponsor to the Agreement
(including any amendments thereto)and decisions related to implementation of the Agreement.
B. Amendments After the Period of Performance. RCO reserves the right to request and Sponsor has the obligation to
provide, authorizations and documents that demonstrate any signatory to an amendment has the authority to legally
bind the Sponsor as described in the above Sections.
For the purposes of this Agreement, as well as for grant management purposes with RCO, only the primary Sponsor may act
as a fiscal agent to obtain reimbursements(See PROJECT REIMBURSEMENTS Section).
PURPOSE OF AGREEMENT
This Agreement sets out the terms and conditions by which a grant is made from the State Building Construction Account of
the State of Washington. The grant is administered by the Recreation and Conservation Office(RCO).
DESCRIPTION OF PROJECT
The City of Yakima(City)and Yakima County are working together to remove Nelson Dam and construct a new diversion that
a)provides unimpeded upstream and downstream fish passage past the site for all species and life stages, b)provides more
effective and easier to maintain fish screening at the site, c)allows for improved sediment transport and floodwater
conveyance up and downstream, and, d) improves water supply reliability for four water purveyors.The project benefits
steelhead, Bull Trout, resident populations and all anadromous fish species.The Brian Abbott Fish Barrier Removal Board
grant is leveraging more than$14M in other funding to complete this project. Final designs and permits are in-hand and
construction begins in 2021.
Once completed,this project will also allow the City to consolidate several smaller irrigation diversions that currently divert
surface water downstream of Nelson Dam.The existing infrastructure for the Old Union Diversion(FPDSI#950112)and
Fruitvale Diversion(FPDSI#950057)will be removed after the new consolidated diversion is completed. This work is a
separate and future phase and is partially funded with a Department of Ecology(DOE) Floodplain by Design grant.Although
neither of these diversions currently block fish passage into the Naches River,they do: 1)cause false attraction,2) have aging
fish screens that need to be upgraded to remain in compliance, requiring in-water work and subsequent temporary water
quality degradation, 3)create a seasonal partial barrier for fish moving into Cowiche Creek(lat.46 628N, long. 120.569W,
and,4)require levees and regular earthwork in the floodplain and channel. Removal of these two diversions and associated
infrastructure is dependent on removal of the Nelson Dam and will allow restoration of the Naches River floodplain in the 2
miles downstream of Nelson Dam and eliminate the seasonal partial barrier at the mouth of Cowiche Creek.
Project partners include:WDFW, DOE,Yakama Nation, North Yakima Conservation District, Naches Cowiche Canal
RCO: 20-1601 Revision Date: 6/1/2021 Page 1 of 22
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4
Association, Old Union Canal, Resources Legacy Fund,Transforming Business,Yakima Basin Integrated Plan,Yakima Basin
Fish and Wildlife Recovery Board, NOAA Fisheries, US Bureau of Reclamation, US Fish and Wildlife Service, US Army Corps
of Engineers, and American Rivers.The project is a key recovery action in the Yakima Basin Steelhead Recovery Plan
PERIOD OF PERFORMANCE
The period of performance begins on July 1,2021 (project start date)and ends on June 30, 2025(project end date) No
allowable cost incurred before or after this period is eligible for reimbursement unless specifically provided for by written
amendment or addendum to this Agreement, or specifically provided for by applicable RCWs,WACs, and any applicable RCO
manuals as of the effective date of this Agreement.
The RCO reserves the right to summarily dismiss any request to amend this Agreement if not made at least 60 days before
the project end date.
STANDARD TERMS AND CONDITIONS INCORPORATED
The Standard Terms and Conditions of the Recreation and Conservation Office attached hereto are incorporated by reference
as part of this Agreement
LONG-TERM OBLIGATIONS
For this restoration project,the sponsor's on-going obligations shall be for a minimum of ten (10)years,or more as specific in
the Landowner Agreement, after the final payment and shall survive the completion/termination of this Project Agreement
unless otherwise identified in the Agreement
PROJECT FUNDING
The total grant award provided for this project shall not exceed$4,134,000 00 The RCO shall not pay any amount beyond that
approved for grant funding of the project and within the percentage as identified below.The Sponsor shall be responsible for
all total project costs that exceed this amount. The minimum matching share provided by the Sponsor shall be as indicated
below:
Percentage Dollar Amount Source of Funding
Office-BA Fish Barrier Removal Board 85.00% $4,134,000 00 State
Project Sponsor 15.00% $729,530.00
Total Project Cost 100.00% $4,863,530.00
RIGHTS AND OBLIGATIONS INTERPRETED IN LIGHT OF RELATED DOCUMENTS
All rights and obligations of the parties under this Agreement are further specified in and shall be interpreted in light of the
Sponsor's application and the project summary and eligible scope activities under which the Agreement has been approved
and/or amended as well as documents produced in the course of administering the Agreement, including the eligible scope
activities,the milestones report, progress reports, and the final report. Provided,to the extent that information contained in
such documents is irreconcilably in conflict with the Agreement, such information shall not be used to vary the terms of the
Agreement, unless the terms in the Agreement are shown to be subject to an unintended error or omission "Agreement"as
used here and elsewhere in this document, unless otherwise specifically stated, has the meaning set forth in the definitions of
the Standard Terms and Conditions
AMENDMENTS TO AGREEMENT
Except as provided herein, no amendment(including without limitation,deletions)of this Agreement will be effective unless set
forth in writing signed by all parties. Exception: extensions of the Period of Performance and minor scope adjustments need
only be signed by RCO's director or designee and consented to in writing(including email)by the Sponsor's Authorized
Representative/Agent or Sponsor's designated point of contact for the implementation of the Agreement(who may be a
person other than the Authorized Agent/Representative), unless otherwise provided for in an amendment This exception does
not apply to a federal government Sponsor or a Sponsor that requests and enters into a formal amendment for extensions or
minor scope adjustments.
It is the responsibility of a Sponsor to ensure that any person who signs an amendment on its behalf is duly authorized to do
so.
Unless otherwise expressly stated in an amendment, any amendment to this Agreement shall be deemed to include all current
federal, state, and local government laws and rules, and policies applicable and active and published in the applicable RCO
manuals or on the RCO website in effect as of the effective date of the amendment,without limitation to the subject matter of
the amendment. Provided, any update in law, rule, policy or a manual that is incorporated as a result of an amendment shall
RCO: 20-1601 Revision Date: 6/1/2021 Page 2 of 22
IC2010
5
apply only prospectively and shall not require that an act previously done in compliance with existing requirements be redone.
However, any such amendment, unless expressly stated, shall not extend or reduce the long-term obligation term.
COMPLIANCE WITH APPLICABLE STATUTES,RULES,AND POLICIES
This Agreement is governed by, and the sponsor shall comply with, all applicable state and federal laws and regulations,
applicable RCO manuals as identified below, Exhibits, and any applicable federal program and accounting rules effective as of
the date of this Agreement or as of the effective date of an amendment, unless otherwise provided in the amendment.
Provided, any update in law, rule, policy or a manual that is incorporated as a result of an amendment shall apply only
prospectively and shall not require that an act previously done in compliance with existing requirements be redone unless
otherwise expressly stated in the amendment.
For the purpose of this Agreement,the following RCO manuals are deemed applicable and shall apply as terms of this
Agreement:
• Brian Abbott Fish Barrier Removal Board-Manual 22
• Long Term Obligations-Manual 7
• Reimbursements-Manual 8
• Restoration Projects-Manual 5
Provided,where a manual refers to a funding board's responsibility and/or authority but the funding board is not involved with
the grant or successor to an entity that was involved,the RCO director shall have that responsibility and/or authority if such
responsibilities and/or authority falls within the RCO's statutory responsibilities and/or authority or within a lawful delegation by
the board to the RCO.
SPECIAL CONDITIONS
A. Reducing Match and Reporting Leverage: In order to streamline the project billing process,the project match is reduced to
15%which is the minimum amount required by the Brian Abbott Fish Barrier Removal Board (BAFBRB)grant program.Rather
than document the$12,114,598 in match included in the application,the sponsor will provide a statement in the final report
project description that documents the total Nelson Dam Removal project cost and the percent share covered by BAFBRB.
B. Cultural Resources, Federal Nexus(Federal Permit):This project appears to be subject to the National Historic
Preservation Act, Section 106,and therefore exempt from Governor's Executive Order 21-02. In order for this project to be
exempt from EO 21-02, the Section 106 Area of Potential Effect(APE)must be inclusive of the entire RCO funded project area
and cover all funded actions. 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 actions subject to this project
agreement, promptly notify the RCO grant manager, as this will require RCO to initiate cultural resources consultation
following EO 21-02 for those activities not included in the federal APE. Before initiating any ground disturbing activities as
described in this agreement,the Sponsor must submit to RCO evidence of completion of the appropriate cultural resource
review process and receive from RCO a Notice to Proceed. RCO will withhold reimbursement of development or restoration
expenditures until this requirement is met. For acquisition projects,final payment will be withheld until evidence of cultural
resources review is provided. Construction started without a Notice to Proceed will be considered a breach of contract.All
cultural resources work must meet reporting guidelines outlined by the Department of Archaeology and Historic Preservation
and Section 106 of the National Historic Preservation Act.
AGREEMENT CONTACTS
The parties will provide all written communications and notices under this Agreement to either or both the mail address and/or
the email address listed below:
Sponsor Project Contact RCO Contact
David Brown Elizabeth Butler
Public Works Natural Resources Building
2301 Fruitvale Blvd PO Box 40917
Yakima,WA 98902 Olympia,WA 98504-0917
david.brown@yakimawa gov elizabeth,butler@rco.wa.gov
These addresses and contacts shall be effective until receipt by one party from the other of a written notice of any change.
Unless otherwise provided for in this Agreement,decisions relating to the Agreement must be made by the Authorized
Representative/Agent,who may or may not be the Project Contact for purposes of notices and communications.
RCO: 20-1601 Revision Date:6/1/2021 Page 3 of 22
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6
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.
EFFECTIVE DATE
Unless otherwise provided for in this Agreement,this Agreement, for Project 20-1601, shall become effective and binding on
the date signed by both the sponsor and the RCO's authorized representative,whichever is later(Effective Date).
Reimbursements for eligible and allowable costs incurred within the period of performance identified in the PERIOD OF
PERFORMANCE Section are allowed only when this Agreement is fully executed and an original is received by RCO
The Sponsor has read, fully understands, and agrees to be bound by all terms and conditions as set forth in this Agreement
and the STANDARD TERMS AND CONDITIONS OF THE RCO GRANT AGREEMENT.The signators listed below represent
and warrant their authority to bind the parties to this Agreement.
City of Yakima
By: Date:
Name(printed):
Title:
State of Washington Recreation and Conservation Office
By: Date:
Megan Duffy
Director
Recreation and Conservation Office
Pre-approved as to form
By: _ Date:_ 06/01/2021
Assistant Attorney General
RCO: 20-1601 Revision Date: 6/1/2021 Page 4 of 22
IC2010
1, WASHINGTON STATT RCO Grant Agreement
Recreation and
Conservation Office
Project Sponsor: City of Yakima Project Number:20-1601R
Number:IC2010
Project Title: Nelson Dam Removal Fish Passage Improvements Approval Date:05/27/2021
Eligible Scope Activities
ELIGIBLE SCOPE ACTIVITIES
Restoration Metrics
Worksite#1, Nelson Dam, lower Naches River,Yakima Basin
Targeted salmonid ESU/DPS(A.23): Steelhead-Middle Columbia River DPS
Targeted species(non-ESU species): Bull Trout, Lamprey, Rainbow
Project Identified In a Plan or Watershed Assessment(C.O.c): Conley,A,et al.2009. Yakima Steelhead
Recovery Plan.Yakima Basin Fish and Wildlife
Recovery Board,Yakima,WA.
Type Of Monitoring(C 0.d 1): Implementation Monitoring
Fish Passage Improvement
Miles Of Stream Made Accessible(FBRB): 40.00
Miles Of Stream Made Accessible(SRFB)(C.2 b.1): 40 00
223 miles of potential upstream habitat once
upstream barriers are corrected, because it opens
up the Naches to and including the American
River, and the Tieton River and the Little Naches
River
Type Of Barrier(C.2 b.3): Diversion Dam
Fish passage blockages removed or altered(C.2.c.1)
Number of Blockages/Impediments/Barriers Removed/Altered(C 2.c.2): 1
Fish Screening Project
Fish screens replaced or modified(C.1.d.1) - -
Instream Habitat Project
Total Miles Of Instream Habitat Treated (C.4.b): 0.42
Channel reconfiguration and connectivity(C.4.c.1)
Type of change to channel configuration and connectivity(C.4 c 2): Creation/Connection to Off-Channel Habitat,
Levee removal/Alteration
Outside the scope of this specific project, but is
related,and will be completed by 2023.The city
will be able to report these metrics
Miles of Stream Treated for channel reconfiguration and connectivity 0 15
(C 4.c.3):
Miles of Off-Channel Stream Created or Connected(C.4.c 4): 0.27
Instream Pools Created/Added(C.4.c.6): 0
Streambank stabilization(C.4.e.1)
Miles of Streambank Stabilized (C.4.e.3): 0.09
RCO:20-1601 Revision Date: 6/1/2021 Page 5 of 22
IC2010
,,N STATE RCO Grant Agreement
Recreation and
C ,rxprvation Office
Project Sponsor: City of Yakima Project Number:20-1601R
Number:IC2010
Project Title: Nelson Dam Removal Fish Passage Improvements Approval Date:05/27/2021
Project Milestones
PROJECT MILESTONE REPORT
Complete Milestone Target Date Comments/Description
X Cultural Resources Complete 12/17/2019 Section 106 letter from USACE in PRISM
X Applied for Permits 04/01/2020
X Final Design to RCO 05/28/2021 Attached in PRISM
X Permits Complete 06/30/2021 Attached in PRISM
X Project Start 07/01/2021
Bid Awarded/Contractor Hired 07/06/2021
Restoration Started 07/16/2021 In water work window Yr 1
X Landowner Agreement to RCO 07/30/2021 MOA between City and County Attached in
PRISM
Annual Project Billing Due 12/31/2021
Progress Report Due 12/31/2021
Progress Report Due 06/30/2022
Annual Project Billing Due 06/30/2022
Restoration Started 07/16/2022 In water work window Year 2
Progress Report Due 12/31/2022
Progress Report Due 06/30/2023
Annual Project Billing Due 06/30/2023
Progress Report Due 12/31/2023
Funding Acknowl Sign Posted 12/31/2023
Restoration Complete 12/31/2023
Final Design to RCO 03/30/2024 As-Builts
Final Report Due 03/31/2024 Drafted in PRISM,wait to submit until the final
billing is submitted.
Special Conditions Met 03/31/2024 Add a statement to the final project description (in
the final report)that summarizes the overall
project cost and the BAFBRB%share(to
document match exceeds 15%).
Stewardship Plan to RCO 03/31/2024 Operation&Maintenance Manual(if changes
from plan provided in June 2021)
RCO Final Inspection 05/01/2024
Progress Report Due 06/30/2024
Annual Project Billing Due 06/30/2024
Progress Report Due 12/31/2024
Agreement End Date 06/30/2025 PROJECT END DATE:All expenses must be
incurred by this date.
Final Billing Due 07/31/2025
RCO: 20-1601 Revision Date:6/1/2021 Page 6 of 22
IC2010
WASHINGTON SLATE RCO Grant Agreerflent
Recreation and
• Conservation Office
Project Sponsor: City of Yakima Project Number:20-1601R
Number:IC2010
Project Title: Nelson Dam Removal Fish Passage Improvements Approval Date:05/27/2021
Standard Terms and Conditions of the Recreation and
Conservation Office
Table of Contents
STANDARD TERMS AND CONDITIONS EFFECTIVE DATE 8
CITATIONS, HEADINGS AND DEFINITIONS 8
PERFORMANCE BY THE SPONSOR - 11
ASSIGNMENT 11
RESPONSIBILITY FOR PROJECT 11
INDEMNIFICATION 11
INDEPENDENT CAPACITY OF THE SPONSOR 12
CONFLICT OF INTEREST 12
COMPLIANCE WITH APPLICABLE LAW... 12
ARCHAEOLOGICAL AND CULTURAL RESOURCES 13
RECORDS 14
PROJECT FUNDING 14
PROJECT REIMBURSEMENTS 15
ADVANCE PAYMENTS 15
RECOVERY OF PAYMENTS 15
COVENANT AGAINST CONTINGENT FEES 16
INCOME(AND FEES)AND USE OF INCOME..._ 16
PROCUREMENT REQUIREMENTS 16
TREATMENT OF EQUIPMENT AND ASSETS 17
RIGHT OF INSPECTION ,. ..17
STEWARDSHIP AND MONITORING 17
ACKNOWLEDGMENT AND SIGNS 17
PROVISIONS APPLYING TO DEVELOPMENT, MAINTENANCE, RENOVATION,AND RESTORATION PROJECTS 17
LONG-TERM OBLIGATIONS OF THE PROJECTS AND SPONSORS 18
CONSTRUCTION, OPERATION, USE,AND MAINTENANCE OF ASSISTED PROJECTS 18
ORDER OF PRECEDENCE 19
LIMITATION OF AUTHORITY 19
WAIVER OF DEFAULT 19
APPLICATION REPRESENTATIONS—MISREPRESENTATIONS OR INACCURACY OR BREACH 19
SPECIFIC PERFORMANCE 20
TERMINATION AND SUSPENSION 20
DISPUTE HEARING 21
ATTORNEYS' FEES 21
GOVERNING LAWNENUE 21
SEVERABILITY 21
END OF STANDARD TERMS AND CONDITIONS 22
RCO: 20-1601 Revision Date:6/1/2021 Page 7 of 22
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STANDARD TERMS AND CONDITIONS EFFECTIVE DATE
This document sets forth the Standard Terms and Conditions of the Recreation and Conservation Office as of 06/09/2021.
CITATIONS,HEADINGS AND DEFINITIONS
A. Any citations referencing specific documents refer to the current version on the effective date of this Agreement or the
effective date of any amendment thereto.
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:
Agreement,terms of the Agreement,or project agreement—The document entitled"RCO GRANT AGREEMENT"
accepted by all parties to the present project and transaction, including without limitation the Standard Terms and
Conditions of the RCO Grant Agreement, all exhibits, attachments, addendums, amendments, and applicable
manuals, and any intergovernmental agreements, and/or other documents that are incorporated into the Agreement
subject to any limitations on their effect under this Agreement.
applicable manual(s),manual—A manual designated in this Agreement to apply as terms of this Agreement,
subject(if applicable)to substitution of the"RCO director"for the term"board"in those manuals where the project is
not approved by or funded by the referenced board, or a predecessor to the board.
applicable WAC(s)—Designated chapters or provisions of the Washington Administrative Code that apply by their
terms to the type of grant in question or are deemed under this Agreement to apply as terms of the Agreement,
subject to substitution of the"RCO director"for the term "board"or"agency" in those cases where the RCO has
contracted to or been delegated to administer the grant program in question.
applicant—Any party, prior to becoming a Sponsor,who meets the qualifying standards/eligibility requirements for
the grant application or request for funds in question.
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, maps, plans,evaluation presentations and scripts
Authorized Representative/Agent—A Sponsor's agent(employee, political appointee, elected person, etc.)
authorized to be the signatory_of this Agreement and any amendments requiring a Sponsor's signature.This person
has the signature authority to bind the Sponsor to this Agreement, grant, and project
C.F.R.—Code of Federal Regulations
completed project or project completion—The status of a project when all of the following have occurred:
• The grant funded project has been inspected by the RCO and the RCO has determined that all scopes of
work to implement the project have been completed satisfactorily.
• A final project report is submitted to and accepted by RCO.
• Any needed amendments to the Agreement have been entered by the Sponsor and RCO and have been
delivered to the RCO.
• A final reimbursement request has been delivered to and paid by RCO.
• Documents affecting property rights(including RCO's as may apply)and any applicable notice of grant, have
been recorded (as may apply).
contractor—An entity that receives a contract from a Sponsor related to performance of work or another obligation
under this Agreement.
conversion—A conversion occurs 1)when facilities acquired, developed, renovated or restored within the project
area are changed to a use other than that for which funds were approved,without obtaining prior written formal RCO
or board approval, 2)when property interests are conveyed to a third party not otherwise eligible to receive grants in
the program from which funding was approved without obtaining prior written formal RCO or board approval, or 3)
when obligations to operate and maintain the funded property are not complied with after reasonable opportunity to
cure.
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Cultural Resources—Archaeological or historic archaeological sites, historic buildings/structures, and cultural or
sacred places.
director—The chief executive officer of the Recreation and Conservation Office or that person's designee
effective date—The date when the signatures of all parties to this agreement are present in the agreement
equipment—Tangible personal property(including information technology systems) having a useful service life of
more than one year and a per-unit acquisition cost which equals or exceeds the lesser of the capitalization level
established by the Sponsor or$5,000(2 C.F.R §200.33(2013))
Funding Entity—the entity that approves the project that is the subject to this Agreement.
grant program—The source of the grant funds received. May be an account in the state treasury, or a grant category
within a larger grant program, or a federal source
long-term compliance period—The term of years, beginning on the end date of the agreement,when long-term
obligations exist for the Sponsor.The start date and end date of the compliance period may also be prescribed by
RCO per the Agreement
long-term obligations—Sponsor's obligations after the project end date, as specified in the Agreement and manuals
and other exhibits as may apply.
landowner agreement—An agreement that is required between a Sponsor and landowner for projects located on
land not owned, or otherwise controlled, by the Sponsor
match or matching share—The portion of the total project cost provided by the Sponsor
milestone—An important event with a defined date to track an activity related to implementation of a funded project
and monitor significant stages of project accomplishment
Office—Means the Recreation and Conservation Office or RCO
pass-through entity—A non-Federal entity that provides a subaward to a subrecipient to carry out part of a Federal
program (2 C F. R §200 74(2013)) If this Agreement is a federal subaward, RCO is the pass-through entity.
period of performance—The period beginning on the project start date and ending on the project end date
pre-agreement cost—A project cost incurred before the period of performance.
primary Sponsor—T-he Sponsor who is not a secondary Sponsor and who is specifically identified in the Agreement
as the entity to which RCO grants funds to and authorizes and requires to administer the grant.Administration
includes but is not limited to acting as the fiscal agent for the grant(e g requesting and accepting reimbursements,
submitting reports) Primary Sponsor includes its officers,employees, agents and successors.
project—The undertaking that is funded by this Agreement either in whole or in part with funds administered by
RCO
project area—The area consistent with the geographic limits of the scope of work of the project and subject to
project agreement requirements. For restoration projects,the project area must include the physical limits of the
project's final site plans or final design plans. For acquisition projects,the project area must include the area
described by the legal description of the properties acquired for or committed to the project.
project completion or completed project—The status of a project when all of the following have occurred:
• The grant funded project has been inspected by the RCO and the RCO has determined that all scopes of
work to implement the project have been completed satisfactorily.
• A final project report is submitted to and accepted by RCO
• Any needed amendments to the Agreement have been entered by the Sponsor and RCO and have been
delivered to the RCO
• A final reimbursement request has been delivered to and paid by RCO.
• Documents affecting property rights(including RCO's as may apply)and any applicable notice of grant, have
been recorded (as may apply).
project cost—The total allowable costs incurred under this Agreement and all required match share and voluntary
committed matching share, including third-party contributions(see also 2 C.F R. §200.83(2013)for federally funded
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projects).
project end date—The specific date identified in the Agreement on which the period of performance ends, as may
be changed by amendment.This date is not the end date for any long-term obligations.
project start date—The specific date identified in the Agreement on which the period of performance starts.
RCO—Recreation and Conservation Office—The state agency that administers the grant that is the subject of this
Agreement. RCO includes the director and staff.
RCW—Revised Code of Washington
reimbursement—RCO's payment of funds from eligible and allowable costs that have already been paid by the
Sponsor per the terms of the Agreement.
renovation project—A project intended to improve an existing site or structure in order to increase its useful service
life beyond current expectations or functions.This does not include maintenance activities to maintain the facility for
its originally expected useful service life.
restoration project—A project intended to bring a site back to its historic function as part of a natural ecosystem, or
one intended to improve the ecological or habitat functionality or capacity of(or part of)a site, landscape, marine
environment, or watershed.
restoration and/or enhancement project—A project that brings a site back to its historic function as part of a
natural ecosystem or that improves the ecological functionality of a site or a larger ecosystem which improvement
may include benefiting fish stocks.
secondary Sponsor—One of two or more Sponsors who is not a primary Sponsor. Only the primary Sponsor may
be the fiscal agent for the project.
Sponsor—A Sponsor is an organization that is listed in and has signed this Agreement.
Sponsor Authorized Representative/Agent—A Sponsor's agent(employee, political appointee,elected person,
etc.)authorized to be the signatory of this Agreement and any amendments requiring a Sponsor signature.This
person has the signature authority to bind the Sponsor to this Agreement, grant, and project
subaward—Funds allocated to the RCO from another organization,for which RCO makes available to or assigns to
another organization via this Agreement.Also, a subaward may be an award provided by a pass-through entity to a
subrecipient for the subrecipient to carry out part of any award received by the pass-through entity. It does not include
payments to a contractor or payments to an individual that is a beneficiary of a federal or other program.A subaward
may be provided through anyform of legal agreement, including an agreement that the pass-through entity considers
a contract.Also see 2 C.F.R.§200.92(2013). For federal subawards, a subaward is for the purpose of carrying out a
portion of a Federal award and creates a federal assistance relationship with the subrecipient(2 C.F.R.§200.330
(2013)). If this Agreement is a federal subaward,the subaward amount is the grant program amount in the Project
Funding Section.
subrecipient—Subrecipient means an entity that receives a subaward_ For non-federal entities receiving federal
funds, a subrecipient is an entity that receives a subaward from a pass-through entity to carry out part of a federal
program; but does not include an individual that is a beneficiary of such program.A subrecipient may also be a
recipient of other federal awards directly from a federal awarding agency(2 C.F.R. §200.93(2013)) If this
Agreement is a federal subaward,the Sponsor is the Subrecipient.
tribal consultation—Outreach, and consultation with one or more federally recognized tribes(or a partnership or
coalition or consortium of such tribes, or a private tribal enterprise)whose rights will or may be significantly affected
by the proposed project.This includes sharing with potentially-affected tribes the scope of work in the grant and
potential impacts to natural areas, natural resources,and the built environment by the project. It also includes
responding to any tribal request from such tribes and considering tribal recommendations for project implementation
which may include not proceeding with parts of the project, altering the project concept and design, or relocating the
project or not implementing the project, all of which RCO shall have the final approval of.
useful service life—Period during which a built asset, equipment, or fixture is expected to be useable for the
purpose it was acquired, installed, developed, and/or renovated, or restored per this Agreement.
WAC—Washington Administrative Code
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PERFORMANCE BY THE SPONSOR
The Sponsor shall undertake the project as described in this Agreement, and in accordance with the Sponsors proposed
goals and objectives described in the application or documents submitted with the application, all as finally approved by the
RCO(to include any RCO approved changes or amendments thereto).All submitted documents are incorporated by this
reference as if fully set forth herein.
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
ASSIGNMENT
Neither this Agreement, nor any claim arising under this Agreement, shall be transferred or assigned by the Sponsor without
prior written approval of the RCO.
RESPONSIBILITY FOR PROJECT
While RCO administers the grant that is the subject of this Agreement,the project itself remains the sole responsibility of the
Sponsor.The RCO and Funding Entity(if different from the RCO)undertakes no responsibilities to the 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 has more than one Sponsor, any and all
Sponsors are equally responsible for the project and all post-completion stewardship responsibilities and long-term obligations
unless otherwise stated in this Agreement.
The RCO, its employees, assigns,consultants and contractors, and members of any funding board or advisory committee or
other RCO grant review individual or body, have no responsibility for reviewing, approving, overseeing or supervising design,
construction, or safety of the project and leaves such review, approval,oversight and supervision exclusively to the Sponsor
and others with expertise or authority. In this respect,the RCO, its employees, assigns, consultants and contractors,and any
funding board or advisory committee or other RCO grant review individual or body will act only to confirm at a general, lay
person, and nontechnical level, solely for the purpose of project eligibility and payment and not for safety or suitability,that the
project apparently is proceeding or has been completed as per the Agreement.
INDEMNIFICATION
The Sponsor shall defend, indemnify, and hold the State and its officers and employees harmless from all claims,demands, or
suits at law or equity arising in whole or in part from the actual or alleged acts, errors, omissions or negligence in connection
with this Agreement(including without limitation all work or activities thereunder), or the breach of any obligation under this
Agreement by the Sponsor or the Sponsor's agents, employees, contractors, subcontractors, or vendors,of any tier, or any
other persons for whom the Sponsor may be legally liable.
Provided that nothing herein shall require a Sponsor to defend or indemnify the State against and hold harmless the State
from claims, demands or suits based solely upon the negligence of the State, its employees and/or agents for whom the State
is vicariously liable.
Provided further that if the claims or suits are caused by or result from the concurrent negligence of(a)the Sponsor or the
Sponsor's agents or employees, and (b)the State,or its employees or agents the indemnity obligation shall be valid and
enforceable only to the extent of the Sponsors negligence or its agents, or employees.
As part of its obligations provided above, the Sponsor specifically assumes potential liability for actions brought by the
Sponsor's own employees or its agents against the State and,solely for the purpose of this indemnification and defense,the
Sponsor specifically waives any immunity under the state industrial insurance law, RCW Title 51. Sponsor's waiver of
immunity under this provision extends only to claims against Sponsor by Indemnitee RCO, and does not include,or extend to,
any claims by Sponsor's employees directly against Sponsor.
Sponsor shall ensure that any agreement relating to this project involving any contractors, subcontractors and/or vendors of
any tier shall require that the contracting entity indemnify,defend, waive RCW 51 immunity, and otherwise protect the State as
provided herein as if it were the Sponsor. This shall not apply to a contractor or subcontractor is solely donating its services to
the project without compensation or other substantial consideration.
The Sponsor shall also defend, indemnify, and hold the State and its officers and employees harmless from all claims,
demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other
allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or
inventions by the Sponsor or the Sponsor's agents,employees, contractors,subcontractors or vendors, of any tier, or any
other persons for whom the Sponsor may be legally liable, in performance of the work under this Agreement or arising out of
any use in connection with the Agreement of methods, processes,designs, information or other items furnished or
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communicated to the State, its agents, officers and employees pursuant to the Agreement. Provided, this indemnity shall not
apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents,
proprietary information, know-how, copyright rights or inventions resulting from the State's, its agents',officers'and
employees'failure to comply with specific written instructions regarding use provided to the State, its agents, officers and
employees by the Sponsor, its agents, employees, contractors, subcontractors or vendors, of any tier, or any other persons for
whom the Sponsor may be legally liable.
The funding board and RCO are included within the term State, as are all other agencies,departments, boards, councils,
committees, divisions, bureaus, offices, societies, or other entities of state government.
INDEPENDENT CAPACITY OF THE SPONSOR
The Sponsor and its employees or agents performing under this Agreement are not officers, employees or agents of the RCO
or Funding Entity.The Sponsor will not hold itself out as nor claim to be an officer, employee or agent of the RCO or the
Funding Entity, 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 RCW 41.06.
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.
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, RCW 42.52;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 herein, 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 or this
Agreement.
COMPLIANCE WITH APPLICABLE LAW
In implementing the Agreement,the Sponsor shall comply with all applicable federal, state, and local laws(including without
limitation all applicable ordinances,codes, rules, and regulations). Such compliance includes,without any limitation as to other
applicable laws,the following laws:
A. 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 Employment Act(if applicable). 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 RCO or Funding Entity. The Sponsor is
responsible for any and all costs or liability arising from the Sponsor's failure to so comply with applicable law. 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."
B. Secular Use of Funds. No funds awarded under this grant may be used to pay for any religious activities,worship, or
instruction,or for lands and facilities for religious activities,worship, or instruction. Religious activities,worship, or
instruction may be a minor use of the grant supported recreation and conservation land or facility.
C 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 or other jurisdiction which affect wages and job safety.The Sponsor
agrees when state prevailing wage laws(RCW 39.12)are applicable,to comply with such laws,to pay the prevailing
rate of wage to all workers, laborers, or mechanics employed in the performance of any part of this contract, and to
file a statement of intent to pay prevailing wage with the Washington State Department of Labor and Industries as
required by RCW 39.12.40.The Sponsor also agrees to comply with the provisions of the rules and regulations of the
Washington State Department of Labor and Industries.
1) Pursuant to RCW 39.12.040(1)(a), all contractors and subcontractors shall submit to Sponsor a statement of
intent to pay prevailing wages if the need to pay prevailing wages is required by law. If a contractor or
subcontractor intends to pay other than prevailing wages, it must provide the Sponsor with an affirmative
statement of the contractor's or subcontractor's intent. Unless required by law,the Sponsor is not required to
investigate a statement regarding prevailing wage provided by a contractor or subcontractor.
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2) Exception, Service Organizations of Trail and Environmental Projects(RCW 79A.35.130). If allowed by state
and federal law and rules, participants in conservation corps programs offered by a nonprofit organization
affiliated with a national service organization established under the authority of the national and community
service trust act of 1993, P.L. 103-82, are exempt from provisions related to rates of compensation while
performing environmental and trail maintenance work provided: (1)The nonprofit organization must be
registered as a nonprofit corporation pursuant to RCW 24.03; (2)The nonprofit organization's management
and administrative headquarters must be located in Washington; (3) Participants in the program must spend
at least fifteen percent of their time in the program on education and training activities; and(4) Participants in
the program must receive a stipend or living allowance as authorized by federal or state law. Participants are
exempt from provisions related to rates of compensation only for environmental and trail maintenance work
conducted pursuant to the conservation corps program.
D. 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.
E. Debarment and Certification. 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 Washington State Department of Labor and Industries'"Debarred Contractor List."
ARCHAEOLOGICAL AND CULTURAL RESOURCES
A Project Review RCO facilitates the review of projects for potential impacts to archaeology and cultural resources,
except as those listed below The Sponsor shall follow RCO guidance and directives to assist it with such review as
may apply
1) Projects occurring on State/Federal Lands:Archaeological and cultural resources compliance for projects
occurring on State or Federal Agency owned or managed lands, will be the responsibility of the respective
agency, regardless of sponsoring entity type. Prior to ground disturbing work or alteration of a potentially
historic or culturally significant structure, or release of final payments on an acquisition,the Sponsor must
provide RCO all documentation acknowledging and demonstrating that the applicable archaeological and
cultural resources responsibilities of such state or federal landowner or manager has been conducted
B. Termination. RCO retains the right to terminate a project due to anticipated or actual impacts to archaeology and
cultural resources.
C. Notice To Proceed. No work shall commence in the project area until RCO has provided a notice of cultural resources
completion. RCO may require on-site monitoring for impacts to archaeology and cultural resources during any
demolition, construction, land clearing, restoration, or repair work, and may direct that work stop to minimize, mitigate,
or avoid impacts to archaeology and cultural resource impacts or concerns.All cultural resources requirements for
non ground disturbing projects(such as acquisition or planning projects)must be met prior to final reimbursement.
D. Compliance and Indemnification.At all times, the Sponsor shall take reasonable action to avoid, minimize, or mitigate
adverse effects to archaeological and historic resources in the project area, and comply with any RCO direction for
such minimization and mitigation.All federal or state cultural resources requirements under Governor's Executive
Order 21-02 and the National Historic Preservation Act, and the State Environmental Policy Act and the National
Environmental Policy Act, and any local laws that may apply, must be completed prior to the start of any work on the
project site.The Sponsor must agree to indemnify and hold harmless the State of Washington in relation to any claim
related to historical or cultural artifacts discovered, disturbed,or damaged due to the project funded under this
Agreement. Sponsor shall comply with RCW 27.53, RCW 27.44.055, and RCW 68.50.645, and all other applicable
local, state, and federal laws protecting cultural resources and human remains.
E. Costs associated with project review and evaluation of archeology and cultural resources are eligible for
reimbursement under this agreement. Costs that exceed the budget grant amount shall be the responsibility of the
Sponsor Inadvertent Discovery Plan.The Sponsor shall request, review, and be bound by the RCO Inadvertent
Discovery Plan, and:
1) Keep the IDP at the project site.
2) Make the IDP readily available to anyone working at the project site.
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3) Discuss the IDP with staff and contractors working at the project site
4) Implement the IDP when cultural resources or human remains are found at the project site.
F Discovery
1) If any archaeological or historic resources are found while conducting work under this Agreement, the
Sponsor shall immediately stop work and notify RCO,the Department of Archaeology and Historic
Preservation at(360)586-3064, and any affected Tribe, and stop any activity that may cause further
disturbance to the archeological or historic resources.
2) If any human remains are found while conducting work under this Agreement, Sponsor shall immediately
stop work and notify the local Law Enforcement Agency or Medical Examiner/Coroner's Office, and then
RCO, all in the most expeditious manner, and stop any activity that may cause disturbance to the remains.
Sponsor shall secure the area of the find will and protect the remains from further disturbance until the State
provides a new notice to proceed.
a) Any human remains discovered shall not be touched, moved, or further disturbed unless directed by
RCO or the Department of Archaeology and Historic Preservation(DAHP).
b) The county medical examiner/coroner will assume jurisdiction over the human skeletal remains and
make a determination of whether those remains are forensic or non-forensic. If the county medical
examiner/coroner determines the remains are non-forensic,then they will report that finding to the
Department of Archaeology and Historic Preservation (DAHP)who will then take jurisdiction over
the remains. The DAHP will notify any appropriate cemeteries and all affected tribes of the find.The
State Physical Anthropologist will make a determination of whether the remains are Indian or Non-
Indian and report that finding to any appropriate cemeteries and the affected tribes. The DAHP will
then handle all consultation with the affected parties as to the future preservation,excavation, and
disposition of the remains.
RECORDS
A. Digital Records. If requested by RCO,the Sponsor must provide a digital file(s)of the project property and funded
project site in a format specified by the RCO.
B. Maintenance and Retention.The Sponsor shall maintain books, records,documents,data and other records
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 nine years from the date RCO
deems the project complete, as defined in the PROJECT REIMBURSEMENTS Section. If any litigation, claim or audit
is started before the expiration of the nine(9)year period,the records shall be retained until all litigation, claims, or
audit findings involving the records have been resolved.
C. 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
D. Public Records.Sponsor acknowledges that the RCO is subject to RCW 42.56 and that this Agreement and any
records Sponsor submits or has submitted to the State shall be a public record as defined in RCW 42.56. RCO
administers public records requests per WAC 286-06 and 420-04(which ever applies).Additionally,the Sponsor
agrees to disclose any information in regards to the expenditure of that funding as if the project sponsor were subject
to the requirements of chapter 42.56 RCW.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.
PROJECT FUNDING
A. Authority This Agreement and funding is made available to Sponsor through the RCO.
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B. Additional Amounts.The RCO or Funding Entity 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 RCO director and
incorporated by written amendment into this Agreement.
C. 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 the RCO director,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.
D. 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 RCO or Funding Entity
may have under this Agreement, the grant amounts identified in this Agreement shall be reduced to exclude any such
expenditure from participation.
PROJECT REIMBURSEMENTS
A. Reimbursement Basis.This Agreement is administered on a reimbursement basis per WAC 286-13 and/or 420-12,
whichever has been designated to apply. Only the primary Sponsor may request reimbursement for eligible and
allowable costs incurred during the period of performance.The primary Sponsor may request reimbursement only
after(1)this Agreement has been fully executed and (2)the Sponsor has remitted payment to its vendors. RCO will
authorize disbursement of project funds only on a reimbursable basis at the percentage as defined in the PROJECT
FUNDING Section. Reimbursement shall not be approved for any expenditure not incurred by the Sponsor, or for a
donation used as part of its matching share. RCO does not reimburse for donations.All reimbursement requests must
include proper documentation of expenditures as required by RCO.
B. Reimbursement Request Frequency.The primary Sponsor is 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 or
as identified in the milestones.Sponsors must refer to the most recent applicable RCO manuals and this Agreement
regarding reimbursement requirements.
C. 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 and other agreements between RCO and the
Sponsor.
D. Conditions for Payment of Retainage. RCO reserves the right to withhold disbursement of the total amount of the
grant to the Sponsor until the following has occurred:
1) RCO has accepted the project as a completed project,which acceptance shall not be unreasonably withheld.
2) On-site signs are in place(if applicable);Any other required documents and media are complete and
submitted to RCO;Grant related fiscal transactions are complete, and
3) RCO has accepted a final boundary map of the project area for which the Agreement terms will apply in the
future.
ADVANCE PAYMENTS
Advance payments of or in anticipation of goods or services are not allowed unless approved by the RCO director and are
consistent with legal requirements and Manual 8: Reimbursements,
RECOVERY OF PAYMENTS
A. Recovery for Noncompliance.In the event that the Sponsor fails to expend funds under this Agreement in
accordance with state and federal laws, and/or the provisions of the Agreement, fails to meet its percentage of the
project total, and/or fails to comply with any of the terms and conditions of the Agreement, RCO reserves the right to
recover grant award funds in the amount equivalent to the extent of noncompliance in addition to any other remedies
available at law or in equity.
B. Return of Overpayments.The 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 the
Sponsor received such overpayment. Unless the overpayment is due to an error of RCO,the payment shall be due
and owing on the date that the Sponsor receives the overpayment from the RCO. If the payment is due to an error of
RCO, it shall be due and owing 30 days after demand by RCO for refund.
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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 and to be reimbursed by Sponsor for any grant
funds paid to Sponsor(even if such funds have been subsequently paid to an agent),without liability to RCO or, in RCO's
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
INCOME(AND FEES)AND USE OF INCOME
A 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 and any applicable manuals, RCWs, and WACs.
B. Use of Income.Subject to any limitations contained in applicable state or federal law and applicable rules and
policies, income or fees generated at a project work site(including entrance, utility corridor permit, cattle grazing,
timber harvesting, farming, rent, franchise fees,ecosystem services, carbon sequestration,etc.)during or after the
reimbursement period cited in the Agreement, must be used to offset:
1) The Sponsor's matching resources;
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 grant funding;
4) The expense of operation, maintenance,stewardship,monitoring, and/or repair of other similar units in the
Sponsor's system;
5) Capital expenses for similar acquisition and/or development and renovation;and/or
6) Other purposes explicitly approved by RCO or otherwise provided for in this agreement.
C. Fees. User and/or other fees may be charged in connection with land acquired or facilities developed, maintained,
renovated, or restored and shall be consistent with the:
1) Grant program laws, rules, and applicable manuals;
2) Value of any service(s)furnished;
3) Value of any opportunities furnished; and
4) Prevailing range of public fees in the state for the activity involved.
PROCUREMENT REQUIREMENTS
A. Procurement Requirements. If the Sponsor has, or is required to have, a procurement process that follows
applicable state and/or federal law or procurement rules and principles, it must be followed, documented, and
retained. If no such process exists,the 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) Sponsor must contract or hire from within its bid pool. If bids are unacceptable the process needs to be
repeated until a suitable bid is selected.
5) Comply with the same legal standards regarding unlawful discrimination based upon race, gender,ethnicity,
sex, or sex-orientation that are applicable to state agencies in selecting a bidder or proposer.
Alternatively, Sponsor may choose a bid from a bidding cooperative if authorized to do so.
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 entity other than the RCO Sponsors may be
required to certify to the RCO that they have followed any applicable state and/or federal procedures or the
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above minimum procedure where state or federal procedures do not apply
TREATMENT OF EQUIPMENT AND ASSETS
Equipment shall be used and managed only for the purpose of this Agreement, unless otherwise provided herein or in the
applicable manuals, or approved by RCO in writing.
A. Discontinued Use. Equipment obtained under this Agreement shall remain in the possession of the Sponsor for the
duration of the project, or RULES of applicable grant assisted program.When the Sponsor discontinues use of the
equipment for the purpose for which it was funded, RCO may require the Sponsor to deliver the equipment to RCO,
or to dispose of the equipment according to RCO published policies.
B. Loss or Damage.The Sponsor shall be responsible for any loss or damage to equipment.
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, long-term obligations, compliance,and/or quality assurance under this Agreement. If a landowner agreement or
other form of control and tenure limits access to the project area, it must include(or be amended to include)the RCO's right to
inspect and access lands acquired or developed with this funding assistance.
STEWARDSHIP AND MONITORING
Sponsor agrees to perform monitoring and stewardship functions as stated in the applicable WACs and manuals,this
Agreement, or as otherwise directed by RCO consistent with the existing laws and applicable manuals.Sponsor further agrees
to utilize,where applicable and financially feasible, any monitoring protocols recommended by the RCO; provided that RCO
does not represent that any monitoring it may recommend will be adequate to reasonably assure project performance or
safety. It is the sole responsibility of the Sponsor to perform such additional monitoring as may be adequate for such purposes.
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.
B. Signs.
1) During the period of performance through the period of long-term obligation,the Sponsor_shall post openly
visible signs or other appropriate media at entrances and other locations on the project area that
acknowledge the applicable grant program's funding contribution, unless waived by the director; and
2) During the period of long-term obligation, the Sponsor shall post openly visible signs or other appropriate
media at entrances and other locations to notify the public of the availability of the site for reasonable public
access.
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 and in all advertisements and mailings thereof, and any and all of its related digital media publications.
PROVISIONS APPLYING TO DEVELOPMENT,MAINTENANCE, RENOVATION,AND RESTORATION PROJECTS
The following provisions shall be in force:
A. Operations and Maintenance. Properties, structures, and facilities developed, maintained, or operated with the
assistance of money granted per this Agreement and within the project area shall be built, operated,and maintained
according to applicable regulations, laws, building codes, and health and public safety standards to assure a
reasonably safe condition and to prevent premature deterioration. It is the Sponsor's sole responsibility to ensure the
same are operated and maintained in a safe and operable condition.The RCO does not conduct safety inspections or
employ or train staff for that purpose.
B. Document Review and Approval. Prior to commencing construction or finalizing the design,the Sponsor agrees to
submit one copy of all construction and restoration plans and specifications to RCO for review solely for compliance
with the scope of work to be identified in the Agreement. RCO does not review for, and disclaims any responsibility to
review for safety, suitability,engineering, compliance with code, or any matters other than the scope so identified.
Although RCO staff may provide tentative guidance to a Sponsor on matters related to site accessibility by persons
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with a disability, it is the Sponsor's responsibility to confirm that all legal requirements for accessibility are met even if
the RCO guidance would not meet such requirements.
1) Change orders that impact the amount of funding or changes to the scope of the project as described to and
approved by the RCO must receive prior written approval of the RCO.
C. Control and Tenure.The Sponsor must provide documentation that shows appropriate tenure and term (such as
long-term lease, perpetual or long-term easement, or perpetual or long-term fee simple ownership,or landowner
agreement or interagency agreement for the land proposed for construction, renovation, or restoration.The
documentation must meet current RCO requirements identified in this Agreement as of the effective date of this
Agreement unless otherwise provided in any applicable manual, RCW,WAC, or as approved by the RCO.
D. Use of Best Management Practices.Sponsors are encouraged to use best management practices including those
developed as part of the Washington State Aquatic Habitat Guidelines(AHG)Program.AHG documents include
"Integrated Streambank Protection Guidelines", 2002; "Land Use Planning for Salmon, Steelhead and Trout:A land
use planner's guide to salmonid habitat protection and recovery", 2009", "Protecting Nearshore Habitat and Functions
in Puget Sound",2010; "Stream Habitat Restoration Guidelines", 2012; "Water Crossing Design Guidelines", 2013;
and "Marine Shoreline Design Guidelines", 2014.These documents, along with new and updated guidance
documents, and other information are available on the AHG Web site. Sponsors are also encouraged to use best
management practices developed by the Washington Invasive Species Council(WISC)described in"Reducing
Accidental Introductions of Invasive Species"which is available on the WISC Web site.
E. At no time shall the Sponsor design, construct, or operate this grant funded project in a way that unreasonably puts
the public, itself,or others at risk of injury or property damage_The Sponsor agrees and acknowledges that the
Sponsor is solely responsible for safety and risk associated with the project,that RCO does not have expertise,
capacity, or a mission to review, monitor, or inspect for safety and risk,that no expectation exists that RCO will do so,
and that RCO is in no way responsible for any risks associated with the project.
LONG-TERM OBLIGATIONS OF THE PROJECTS AND SPONSORS
A. Long-Term Obligations This section applies to completed projects only
B. Perpetuity. For acquisition and development projects, or a combination thereof, unless otherwise allowed by
applicable manual, policy, program rules, or this Agreement, or approved in writing by RCO.The RCO requires that
the project area continue to function for the purposes for which these grant funds were approved, in perpetuity.
C. Conversion.The Sponsor shall not at any time convert any real property(including any interest therein)or facility
acquired, developed,and/or renovated pursuant to this Agreement, unless provided for in applicable statutes, rules,
and policies. Conversion includes, but is not limited to, putting such property(or a portion of it)to uses other than
those purposes for which funds were approved or transferring such property to another entity without prior approval
via a written amendment to the Ag(eement.All real property or facilities acquired,developed, and/or renovated with
funding assistance shall remain in the same ownership and in public use/access status in perpetuity unless otherwise
expressly provided in the Agreement or applicable policies or unless a transfer or change in use is approved by the
RCO through an amendment. Failure to comply with these obligations is a conversion. Further, if the project is subject
to operation and or maintenance obligations,the failure to comply with such obligations,without cure after a
reasonable period as determined by the RCO, is a conversion. Determination of whether a conversion has occurred
shall be based upon all terms of the Agreement, and all applicable state of federal laws or regulation.
1) When a conversion has been determined to have occurred, the Sponsor shall remedy the conversion as set
forth in this Agreement(with incorporated documents)and as required by all applicable policies, manuals,
WACs and laws that exist at the time the remedy is implemented or the right to the remedy is established by
a court or other decision-making body, and the RCO may pursue all remedies as allowed by the Agreement
or law.
CONSTRUCTION,OPERATION,USE,AND MAINTENANCE OF ASSISTED PROJECTS
The following provisions shall be in force for this agreement:
A. Property and facility operation and maintenance.Sponsor must ensure that properties or facilities assisted with
the grant funds, including undeveloped sites, are built, operated, used, and maintained:
1) According to applicable federal, state, and local laws and regulations, including public health standards and
building codes;
2) In a reasonably safe condition for the project's intended use;
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3) Throughout its estimated useful service life so as to prevent undue deterioration;
4) In compliance with all federal and state nondiscrimination laws, regulations and policies
B Open to the public. Unless otherwise specifically provided for in the Agreement, and in compliance with applicable
statutes, rules, and applicable WACs and manuals,facilities must be open and accessible to the general public, and
must:
1) Be constructed, maintained, and operated to meet or exceed the minimum requirements of the most current
guidelines or rules, 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 amended and updated.
2) Appear attractive and inviting to the public except for brief installation, construction, or maintenance periods
3) Be available for appropriate use by the general public at reasonable hours and times of the year, according
to the type of area or facility, unless otherwise stated in RCO manuals or, by a decision of the RCO director
in writing. Sponsor shall notify the public of the availability for use by posting and updating that information
on its website and by maintaining at entrances and/or other locations openly visible signs with such
information
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 a direct and irreconcilable conflict
between the terms of this Agreement and any applicable statute, rule, or policy or procedure,the conflict shall be resolved by
giving precedence in the following order:
A Federal law and binding executive orders;
B. Code of federal regulations;
C Terms and conditions of a grant award to the state from the federal government;
D. Federal grant program policies and procedures adopted by a federal agency that are required to be applied by federal
law;
E. State Constitution, RCW, and WAC;
F Agreement Terms and Conditions and Applicable Manuals;
G. Applicable deed restrictions, and/or governing documents
LIMITATION OF AUTHORITY
Only RCO's Director or RCO's delegate authorized in writing(delegation to be made prior to action)shall have the authority to
alter, amend, modify, or waive any clause or condition of this Agreement; provided that any such alteration, amendment,
modification, or waiver of any clause or condition of this Agreement is not effective or binding unless made as a written
amendment to this Agreement and signed by the RCO Director or delegate.
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 as an amendment to the original Agreement.
APPLICATION REPRESENTATIONS—MISREPRESENTATIONS OR INACCURACY OR BREACH
The Funding Entity(if different from RCO)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.
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SPECIFIC PERFORMANCE
RCO may, at it's discretion,enforce this Agreement by the remedy of specific performance,which means Sponsors'
completion of the project and/or its completion of long-term obligations as described in this Agreement. However,the remedy
of specific performance shall not be the sole or exclusive remedy available to RCO. No remedy available to the RCO shall be
deemed exclusive.The RCO may elect to exercise any, a combination of, or all of the remedies available to it under this
Agreement, or under any provision of law, common law, or equity, including but not limited to seeking full or partial repayment
of the grant amount paid and damages.
TERMINATION AND SUSPENSION
The RCO requires 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 RCO policies, and with the representations of the Sponsor in its application
fora grant as finally approved by RCO. For federal awards, notification of termination will comply with 2 C.F.R.§200.340.
A. For Cause.
1) The RCO director may suspend or terminate the obligation to provide funding to the Sponsor under this
Agreement:
a) If the Sponsor breaches any of the Sponsor's obligations under this Agreement;
b) If the Sponsor fails to make progress satisfactory to the RCO 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; or
c) If the primary and secondary Sponsor(s)cannot mutually agree on the process and actions needed
to implement the project;
2) Prior to termination,the RCO shall notify the Sponsor in writing of the opportunity to cure. If corrective action
is not taken within 30 days or such other time period that the director approves in writing,the Agreement may
be terminated. In the event of termination, the Sponsor shall be liable for damages or other relief as
authorized by law and/or this Agreement.
3) RCO reserves the right to suspend all or part of the Agreement,withhold further payments, or prohibit the
Sponsor from incurring additional obligations of funds during the investigation of any alleged breach and
pending corrective action by the Sponsor, or a decision by the RCO to terminate the Contract.
B. 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 when it is in the best
interest of the state. If this Agreement is so terminated, RCO shall be liable only for payment required under the terms
of this Agreement prior to the effective date of termination.A claimed termination for cause shall be deemed to be a
"Termination for Convenience"if it is determined that:
1) The Sponsor was not in default; or
2) Failure to perform was outside Sponsor's control,fault or negligence
C. Rights and Remedies of the RCO.
1) The rights and remedies of RCO provided in this Agreement are not exclusive and are in addition to any
other rights and remedies provided by law.
2) In the event this Agreement is terminated by the director, after any portion of the grant amount has been paid
to the Sponsor under this Agreement due to Sponsor's breach of the Agreement or other violation of law,the
director may require that any amount paid be repaid to RCO for redeposit into the account from which the
funds were derived. However, any repayment shall be limited to the extent repayment would be inequitable
and represent a manifest injustice in circumstances where the project will fulfill its fundamental purpose for
substantially the entire period of performance and of long-term obligation.
D. 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
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1) Suspension:The obligation of the RCO to manage contract terms and make payments is contingent upon
the state appropriating state and federal funding each biennium. In the event the state is unable to
appropriate such funds by the first day of each new biennium RCO reserves the right to suspend the
Agreement,with ten(10)days written notice, until such time funds are appropriated. Suspension will mean
all work related to the contract must cease until such time funds are obligated to RCO and the RCO provides
notice to continue work.
2) No Waiver.The failure or neglect of RCO to require strict compliance with any term of this Agreement or to
pursue a remedy provided by this Agreement or by law shall not act as or be construed as a waiver of any
right to fully enforce all rights and obligations set forth in this Agreement and in applicable state or federal law
and regulations.
DISPUTE HEARING
Except as may otherwise be provided in this Agreement,when a dispute arises between the Sponsor and the RCO,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 persons chosen by the Sponsor and director shall be
dismissed and an alternate person chosen by the Sponsor, and one by the director shall be appointed and they shall agree on
a third person.This process shall be repeated until a three person panel is established.
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 majority decision of the dispute panelists, unless the remedy directed by that panel is
beyond 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.
ATTORNEYS'FEES
In the event of litigation or other action brought to enforce contract terms, each party agrees to bear its own costs and
attorneys'fees.
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 the Superior Court of a county where the project is situated, if venue there is legally proper, and if not, in a county where
venue is legally proper. The Sponsor, by execution of this Agreement acknowledges the jurisdiction of the courts of the State
of Washington and agrees to venue as set forth above.
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.
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END OF STANDARD TERMS AND CONDITIONS
This is the end of the Standard Terms and Conditions of the Agreement.
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