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09/07/2021 06.E. Resolution authorizing an agreement with Washington State Department of Commerce for a grant for Nelson Dam Removal: Water Supply, Riverine Process and Fish Passage Improvements 1 • /-4ria&I-A i rr 11 i � "i enc u nrry 1 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 6.E. For Meeting of: September 7, 2021 ITEM TITLE: Resolution authorizing an agreement with Washington State Department of Commerce for a grant 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: Agreement 22-96634-118 is a grant from the Washington State Department of Commerce Local Government Division Community Capital Facilities Unit. The grant will fund $1,298,500 towards the City of Yakima's 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 22-96634-118 is attached for City Council review. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Economic Development APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt Resolution ATTACHMENTS: Description Upload Date Type 0 Resolution 8/9/2021 Resolution ❑ Agreement 8/9/2021 Contract 2 RESOLUTION NO. R-2021- A RESOLUTION authorizing execution of an Agreement with Washington State Department of Commerce for a grant of$1,298,500 for Nelson Dam Removal: Water Supply, Riverine Process and Fish Passage Improvements, Project IC2010 WHEREAS, funding has been provided under the Washington Department of Commerce Local Government Division Community Capital Faculties Unit 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 Department of Commerce provided the City of Yakima a $1,298,500 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 22-96634- 118 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 Department of Commerce, to execute and administer all applicable documents and agreements pursuant to such grant from Washington State Department of Commerce. ADOPTED BY THE CITY COUNCIL this 7th day of September, 2021. ATTEST: Patricia Byers, Mayor Sonya Claar Tee, City Clerk 3 ir I% Washington State Department of ,40 Commerce Grant to City of Yakima through The 2022 Local & Community Projects Program For Nelson Dam Removal Project (Naches) - Start date: 7/1/2021 Washington State Department of Commerce vwwv.com merce.wa.gov 4 TABLE OF CONTENTS 5 Face Sheet 1 Special Terms and Conditions 2 1 . Grant Management 2 2. Compensation 2 3. Certification of Funds Performance Measures 2 4. Prevailing Wage Law 3 5. Documentation and Security 3 6. Basis for Establishing Real Property Values for Acquisitions of Real Property 4 7. Expenditures Eligible for Reimbursement 4 8. Billing Procedures and Payment 4 9. Subcontractor Data Collection 5 10. Insurance 5 11 . Order of Precedence 7 12. Reduction in Funds 7 13. Ownership of Project/Capital Facilities 7 14. Change of Ownership or Use for GRANTEE-Owned Property 7 15. Change of Use for Leased Property Performance Measure 8 16. Modification to the Project Budget 8 17. Signage, Markers and Publications 8 18. Historical and Cultural Artifacts 8 19. Reappropriation 9 20. Termination for Fraud or Misrepresentation 9 General Terms and Conditions 1 1 . Definitions 1 2. Access to Data 1 3. Advance Payments Prohibited 1 4. All Writings Contained Herein 1 5. Amendments 1 6. Americans with Disabilities Act (ADA) 2 7. Assignment 2 8. Attorney's Fees 2 9. Audit 2 10. Breaches of Other State Contracts 3 11 . Confidentiality/Safeguarding of Information 3 12. Conflict of Interest 3 13. Copyright Provision 4 14. Disputes 4 15. Duplicate Payment 5 16. Governing Law and Venue 5 17. Indemnification 5 18. Independent Capacity of the Grantee 5 19. Industrial Insurance Coverage 6 20. Laws 6 21 . Licensing, Accreditation and Registration 6 22. Limitation of Authority 6 23. Noncompliance with Nondiscrimination Laws 6 24. Pay Equity 6 25. Political Activities 7 26. Publicity 7 27. Recapture 7 28. Records Maintenance 7 6 29. Registration with Department of Revenue 7 30. Right of Inspection 8 31 . Savings 8 32. Severability 8 33. Site Security 8 34. Subgranting/Subcontracting 8 35. Survival 8 36. Taxes 8 37. Termination for Cause 8 38. Termination for Convenience 9 39. Termination Procedures 9 40. Treatment of Assets 10 41 . Waiver 10 Attachment A, Scope of Work; Attachment B, Budget;Attachment C,Availability of Funds; Attachment D Certification of Prevailing Wages;Attachment E, Certification of LEED FACE SHEET Grant Number:22-96634-118 Washington State Department of Commerce Local Government Division Community Capital Facilities Unit 1. GRANTEE 2.GRANTEE Doing Bus inessAs(optional) City of Yakima 2301 Fruitvale Blvd Yakima, Washington 98092 3. Grantee Repres entative 4.COMMERCE Representatiw David Brown ChuckHunter Assistant Director of Pub lie Works Project Manager P.O.Box 42525 (509)575-6204 (360) 764-3312 1011 Plum Street SE Fax 360-586-5880 Olympia,WA 98504-2525 david.brown@yakimawa.gov chuck.hunter@commerce.wa.gov 5. Grant Amount 6.Funding Source 7. StartDate 8.End Date $1,298,500.00 Federal: ❑ State:® Other:❑ N/A:❑ 7/1/2021 6/30/2025,contingent on reappropriation 6/30/2023,if funds are not reappropriated 9. Federal Funds (as applicable) Federal Agency CFDA Number N/A N/A N/A 10.Tax ID# 11.SWV# 12.UBI# 13.DUNS # 91-6001293 SWV0007122-02 397-005-272 N/A 14.Grant Purpose The outcome of this performance-based contract is the completion of the NelsonDamRemovalProject as referencedin Attachment A—Scope ofWork. COMMERCE, defined as theDepartment of Commerce,and the GZANTF,F,,as defined above,acknowledge and accept the terms of this Grant and attachments and have executed this Grant on the date below to start as of the date andyearreferenced above. The rights and obligations ofbothpartiesto this Grant are governed by this Grant and thefo lowing other documents incorporated by reference: Grant Terms and Conditions including Attachment"A"—Scope ofWork,Attachment"B"—Budget,Attachment"C"— Certification ofAvailability ofFunds to Complete the Project,Attachment"D"—Certification of the Payment and Reporting of Prevailing Wages,Attachment"E"—Certification of Intent to Easter LEED process. FOR GRANTEE FOR COMMERCE Bob Harrison,City Manager MarkK.Barkley,Ass istant Director Date Date APPROVED AS TO FORM Steve Scheele,Assistant Attorney General 7/30/2021 Date 8 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS THIS CONTRACT, entered into by and between City of Yakima(a Unit of Local Government hereinafter referred to as the GRANTEE), and the Washington State Department of Commerce(hereinafter referred to as COMMERCE), WITNESSES THAT: WHEREAS, COMMERCE has the statutory authority under RCW 43.330.050(5)to cooperate with and provide assistance to local governments, businesses,and community-based organizations; and WHEREAS, COMMERCE is also given the responsibility to administer state funds and programs which are assigned to COMMERCE by the Governor or the Washington State Legislature;and WHEREAS, the Washington State Legislature has, in Laws of2021, Chapter332, Section 1075, made an appropriation to support the 2022 Local& Community Projects Program, and directed COMMERCE to administer those funds; and WHEREAS, the enabling legislatbn also stipulates that the GRANTEE is eligible to receive funding for acquisition,construction,or rehabilitatbn (a venture hereinafter referred to as the "Project'). NOW, THEREFORE, in consideration of covenants, conditions, performances, and promises hereinafter contained,the parties hereto agree as follows: 1. GRANT MANAGEMENT The Representative for each of the parties shall be responsible for and shall be the contact person for all communications and billings regarding the performance of this Grant. The Representative for COMMERCE and their contact information are identified on the Face Sheet of this Grant. The Representative for the GRANTEE and their contact information are identified on the Face Sheet of this Grant. 2. COMPENSATION COMMERCE shall pay an amount not to exceed $1,298,500.00 for the capital costs necessary for or incidental to the performance of work as set forth in the Scope of Work. 3. CERTIFICATION OF FUNDS PERFORMANCE MEASURES A. The release of state funds under this contract is contingent upon the GRANTEE certifying that it has expended or has access to funds from non-state sources as set forth in ATTACHMENTC (CERTIFICATION OF THE AVAILABILITY OF FUNDS TO COMPLETE THE PROJECT), hereof. Such non-state sources may consist of a combination of any of the following: i) Eligible Project expenditures prior to the execution of this contract. ii) Cash dedicated to the Project. iii) Funds available through a letter of credit or other binding loan commitment(s). iv) Pledges from foundations or corporations. v) Pledges from individual donors. 2 9 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS vi) The value of real property when acquired solely for the purposes of this Project,as established and evidenced by a current market value appraisal performed by a licensed, professional real estate appraiser,ora current property tax statement. COMMERCE will not consider appraisals for prospective values of such property for the purposes of calculating the amount of non-state matching fund credit. vii) In-kind contributions,subject to COMMERCE'S approval. B. The GRANTEE shall maintain records sufficient to evidence that it has access to or has expended funds from such non-state sources, and shall make such records available for COMMERCE'S review upon reasonable request. 4. PREVAILING WAGE LAW The Project funded under this Grant may be subject to state prevailing wage law(Chapter 39.12 RCW). The GRANTEE is advised to consult the Industrial Statistician at the Washington Department of Labor and Industries to determine whether prevailing wages must be paid. COMMERCE is not responsible for determining whether prevailing wage applies to this Project or for any prevailing wage payments that may be required by law. 5. DOCUMENTATION AND SECURITY The provisions of this sectbn shall apply to capital projects performed by nonprofit organizatbns and public benefit corporations that involve the expenditure of over$500,000 in state funds. Projects for which the grant award or legislative intent documents specify that the state funding is to be used for design only are exempt from this section. A. Deed of Trust. This Grant shall be evidenced by a promissory note and secured by a deed of trust or other appropriate security instrument in favor of COMMERCE (the"Deed of Trust'). The Deed of Trust shall be recorded in the County where the Project is located, and the original returned to COMMERCE after recordation within ninety(90)days of contract execution. The Deed of Trust must be recorded before COMMERCE will reimburse the GRANTEE for any Project costs. The amount secured by the Deed of Trust shall be the amount of the grant as set forth in Section 2, hereof. B. Term of Deed of Trust. The Deed of Trust shall remain in full force and effect for a period of ten (10) years following the final payment of state funds tothe GRANTEE under this grant. Upon satisfaction of the ten-year term requirement and all other grant terms and conditions, COMMERCE shall, upon written request of the GRANTEE,take appropriate action to reconvey the Deed of Trust. C. Title Insurance. The GRANTEE shall purchase an extended coverage lender's policy of title insurance insuring the lien position of the Deed of Trust in an amount not less than the amount of the grant. D. Covenant. If the project will be partially funded by a loan and the term of said loan is less than the commitment period under this grant contract,COMMERCE may require that GRANTEE record or cause to be recorded a covenant in a superior lien position ahead of the lender's security instrument that restricts use of the facility or property for the purpose(s)stated elsewhere in this contract for at least the term of the commitment period 3 10 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS E. Subordination. COMMERCE may agree to subordinate its deed of trust upon request from a private or public lender. Any such request shall be submitted to COMMERCE in writing, and COMMERCE shall respond to the request in writing within thirty(30)days of receiving the request. 6. BASIS FOR ESTABLISHING REAL PROPERTY VALUES FOR ACQUISITIONS OF REAL PROPERTY PERFORMANCE MEASURES When the grant is used to fund the acquisition of real property, thevalue of the real property eligible for reimbursement under this grant shall be established as follows: a. GRANTEE purchases of real property from an independent third-party seller shall be evidenced by a current appraisal prepared by a licensed Washington State commercial real estate appraiser, or a current property tax statement. b. GRANTEE purchases of real property from a subsidiary organizatbn, such as an affiliated LLC, shall be evidenced by a current appraisal prepared by a licensed Washington State commercial real estate appraiser or the prior purchase price of the property plus holding costs,whichever is less. 7. EXPENDITURES ELIGIBLE FOR REIMBURSEMENT The GRANTEE may be reimbursed,at the rate set forth elsewhere in this contract, for Project expenditures in the following cost categories: A. Real property, and costs directly associated with such purchase,when purchased or acquired solely for the purposes of the Project; B. Design, engineering, architectural, and planning; C. Construction management and observation (from external sources only); D. Construction costs including, but not limited to, the following: Site preparation and improvements; Permits and fees; Labor and materials; Taxes on Project goods and services; Capitalized equipment; Information technology infrastructure;and Landscaping. 8. BILLING PROCEDURES AND PAYMENT COMMERCE shall reimburse the GRANTEE for one-hundred percent (100%)of eligible Project expenditures, up to the maximum payable under this contract. When requesting reimbursement for expenditures made, the GRANTEE shall submit to COMMERCE a signed and completed Invoice Voucher(Form A-19), that documents capitalized Project activity performed—by budget line item— for the billing period. The GRANTEE shall evidence the costs claimed on each voucher by including copies of each invoice received from vendors providing Project goods or services covered by the contract. The GRANTEE shall also provide COMMERCE with a copy of the cancelled check or electronic funds transfer, as applicable, that confirms that they have paid each expenditure being claimed. The cancelled checks or electronic funds transfers may be submitted to COMMERCE at the time the voucher is initially submitted, or within thirty (30)days thereafter. 4 11 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS The voucher must be certified (signed) by an official of the GRANTEE with authority to bind the GRANTEE. The final voucher shall be submitted to COMMERCE within sixty (60)days following the completion of work or other termination of this contract,or within fifteen (15)days following the end of the state biennium unless contract funds are reappropriated by the Legislature in accordance with Section 19, hereof. If GRANTEE has or will be submitting any of the invoices attached to a request for payment for partial reimbursement under another grant contract,GRANTEE must clearly identify such grant contracts in the transmittal letter and request for payment. Each request for payment must be accompanied by a Project Status Report, which describes, in narrative form, the progress made on the Project since the last invoice was submitted, as well as a report of Project status to date. COMMERCE will not release payment for any reimbursement request received unless and until the Project Status Report is received. After approving the Invoice Voucher and Project Status Report, COMMERCE shall promptly remit a warrant to the GRANTEE. COMMERCE will pay GRANTEE upon acceptance of services provided and receipt of properly completed invoices, which shall be submitted to the Representative for COMMERCE not more often than monthly. Payment shall be considered timely if made by COMMERCE within thirty (30)calendar days after receipt of properly completed invoices. Payment shall be sent to the address designated by the GRANTEE. COMMERCE may, in its sole discretion, terminate the Grant or withhold payments claimed by the GRANTEE for services rendered if the GRANTEE fails to satisfactorily comply with any term or condition of this Grant. No payments in advance or in anticipation of services or supplies to be provided under this Agreement shall be made by COMMERCE. Duplication of Billed Costs The GRANTEE shall not bill COMMERCE for services performed under this Agreement,and COMMERCE shall not pay the GRANTEE,if the GRANTEE is entitled to payment or has been or will be paid by any other source, including grants,for that service. Disallowed Costs The GRANTEE is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its subgrantees. 9. SUBCONTRACTOR DATA COLLECTION GRANTEE will submit reports, in a form and format to be provided by Commerce and at intervals as agreed by the parties, regarding work under this Grant performed by subcontractors and the portion of Grant funds expended for work performed by subcontractors, including but not necessarily limited to minority-owned, woman-owned,and veteran-owned business subcontractors. "Subcontractors" shall mean subcontractors of any tier. 10. INSURANCE The GRANTEE shall provide insurance coverage as set out in this section.The intent of the required insurance is to protect the state of Washington shoukl there be any claims, suits,actbns, costs, damages or expenses arising from any loss, or negligent or intentional act or omission of the GRANTEE, or Subgrantee, or agents of either, while performing under the terms of this Grant. The insurance required shall be issued by an insurance company authorized to do business within the state of Washington. The insurance shall name the state of Washington, its agents,officers,and employees as additbnal insureds under the insurance policy. 5 12 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS All policies shall be primary to any other valid and collectable insurance.The GRANTEE shall instruct the insurers to give COMMERCE thirty(30)calendar days advance notice of any insurance cancellation or modification. The GRANTEE shall submit to COMMERCE within fifteen (15)calendar days of the Grant start date, a certificate of insurance which outlines the coverage and limits defined in this insurance section. During the term of the Grant, the GRANTEE shall submit renewal certificates not less than thirty (30) calendar days prior to expiration of each policy required under this section. The GRANTEE shall provide insurance coverage that shall be maintained in full force and effect during the term of this Grant, as follows: Commercial General Liability Insurance Policy. Provide a Commercial General Liability Insurance Policy, including contractual liability,written on an occurrence basis, in adequate quantity to protect against legal liability arising out of Grant activity but no less than$1,000,000 per occurrence. Additionally,the GRANTEE is responsible for ensuring that any Subgrantees provide adequate insurance coverage for the activities arising out of subgrants. Fidelity Insurance. Every officer, director,employee,or agent who is authorized to act on behalf of the GRANTEE for the purpose of receiving or depositing funds into program accounts or issuing financial documents,checks,or other instruments of payment for program costs shall be insured to provide protection against loss: A. The amount of fidelity coverage secured pursuant to this Grant shall be$2,000,000 or the highest of planned reimbursement for the Grant period, whichever is lowest. Fidelity insurance secured pursuant to this paragraph shall name COMMERCE as beneficiary. B. Subgrantees that receive$10,000 or more per year in funding through this Grant shall secure fidelity insurance as noted above. Fidelity insurance secured by Subgrantees pursuant to this paragraph shall name the GRANTEE and the GRANTEE's fiscal agent as beneficiary. C. The GRANTEE shall provide, at COMMERCE's request, copies of insurance instruments or certifications from the insurance issuing agency. The copies or certifications shall show the insurance coverage,the designated beneficiary,who is covered,the amounts, the period of coverage, and that COMMERCE will be provided thirty (30)days advance written notice of cancellation. GRANTEES and Local Governments that Participate in a Self-Insurance Program. Self-Insured/Liability Pool or Self-Insured Risk Management Program—With prior approval from COMMERCE, the GRANTEE may provide the coverage above under a self-insured/liability pool or self-insured risk management program. In order to obtain permission from COMMERCE,the GRANTEE shall provide: (1)a description of its self-insurance program,and (2)a certificate and/or letter of coverage that outlines coverage limits and deductibles. All self-insured risk management programs or self-insured/liability pool financial reports must comply with Generally Accepted Accounting Principles(GAAP)and adhere to accounting standards promulgated by: 1) Governmental Accounting Standards Board (GASB), 2) Financial Accounting Standards Board (FASB), and 3)the Washington State Auditor's annual instructions forfinancial reporting. GRANTEE's participating in joint risk pools shall maintain sufficient documentatbn to support the aggregate claim liability information reported on the balance sheet. The state of Washington,its agents, and employees need not be named as additional insured under a self-insured property/liability pool,if the pool is prohibited from naming third parties as additional insured. GRANTEE shall provide annually to COMMERCE a summary of coverages and a letter of self insurance, evidencing continued coverage under GRANTEE's self-insured/liability pool or self- insured risk management program. Such annual summary of coverage and letter of self insurance will be provided on the anniversary of the start date of this Agreement. 6 13 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 11. ORDER OF PRECEDENCE In the event of an inconsistency in this Grant,the inconsistency shall be resolved by giving precedence in the following order: • Applicable federal and state of Washington statutes and regulations • Special Terms and Conditions • General Terms and Conditions • Attachment A—Scope of Work • Attachment B—Budget • Attachment C—Certification of the Availability of Funds to Complete the Project • Attachment D—Certification of the Payment and Reporting of Prevailing Wages • Attachment E —Certification of Intent to Enter the Leadership in Energy and Environmental Design (LEED)Certification Process 12. REDUCTION IN FUNDS In the event state funds appropriated for the work contemplated under this contract are withdrawn, reduced, or limited in any way by the Governor or the Washington State Legislature during the contract period, the parties hereto shall be bound by any such revised funding limitations as implemented at the discretbn of COMMERCE,and shall meet and renegotiate the contract accordingly. 13. OWNERSHIP OF PROJECT/CAPITAL FACILITIES COMMERCE makes no claim to any real property improved or constructed with funds awarded under this contract and does not assert and will not acquire any ownership interest in or title to the capital facilities and/or equipment constructed or purchased with state funds under this contract; provided, however, that COMMERCE may be granted a security interest in real property,to secure funds awarded under this contract. This provision does not extend to claims that COMMERCE may bring against the GRANTEE in recapturing funds expended in violation of this contract. 14. CHANGE OF OWNERSHIP OR USE FOR GRANTEE-OWNED PROPERTY A. The GRANTEE understands and agrees that any and all real property or facilities owned by the GRANTEE that are acquired, constructed, or otherwise improved by the GRANTEE using state funds under this contract,shall be held and used by the GRANTEE for the purpose or purposes stated elsewhere in this contract for a period of at least ten (10)years from the date the final payment is made hereunder. B. This provision shall not be construed to prohibit the GRANTEE from selling any property or properties described in this section; Provided,that any such sale shall be subject to prior review and approval by COMMERCE,and that all proceeds from such sale shall be applied to the purchase price of a different facility or facilities of equal or greater value than the original facility and that any such new facility or facilities will be used for the purpose or purposes stated elsewhere in this contract. C. In the event the GRANTEE is found to be out of compliance with this section,the GRANTEE shall repay to the state general fund the principal amount of the grant, plus interest calculated at the rate of interest on state of Washington general obligatbn bonds issued most closely to the effective date of the legislation in which the subject facility was authorized. Repayment shall be made pursuant to Section 26(Recapture provision)of the General Terms and Conditions. 7 14 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 15. CHANGE OF USE FOR LEASED PROPERTY PERFORMANCE MEASURE A. The GRANTEE understands and agrees that any facility leased by the GRANTEE that is constructed, renovated, or otherwise improved using state funds under this contract shall be used by the GRANTEE for the purpose or purposes stated elsewhere in this contract for a period of at least ten (10)years from the date the final payment is made hereunder. B. In the event the GRANTEE is found to be out of compliance with this section,the GRANTEE shall repay to the state general fund the principal amount of the grant, plus interest calculated at the rate of interest on state of Washington general obligation bonds issued most cbsely to the effective date of the legislation in which the subject facility was authorized. Repayment shall be made pursuant to Section 26(Recapture provision)of the General Terms and Conditions. 16. MODIFICATION TO THE PROJECT BUDGET A. Notwithstanding any other provision of this contract,the GRANTEE may, at its discretion, make modifications to line items in the Project Budget (Attachment B), hereof, that will not increase the line item by more than fifteen percent (15%). B. The GRANTEE shall notify COMMERCE in writing (by email or regular mail)when proposing any budget modification or modifications to a line item in the Project Budget(Attachment B,)hereof, that would increase the line item by more than fifteen percent (15%). Conversely,COMMERCE may initiate the budget modification approval process if presented with a request for payment under this contract that would cause one or more budget line items to exceed the 15 percent (15%)threshold increase described above. C. Any such budget modification or modifications as described above shall require the written approval of COMMERCE (by email or regular mail), and such written approval shall amend the Project Budget.Each party to this contract will retain and make any and all documents related to such budget modificatbns a part of their respective contract file. D. Nothing in this section shall be construed to permit an increase in the amount of funds available for the Project, as set forth in Section 2 of this contract. 17. SIGNAGE, MARKERS AND PUBLICATIONS If, during the period covered by this contract,the GRANTEE displays or circulates any communication, publication,or donor recognition identifying the financial participants in the Project, any such communication or publicaton must identify "The Taxpayers of Washington State"as a participant. 18. HISTORICAL AND CULTURAL ARTIFACTS Prior to approval and disbursement of any funds awarded under this Contract, GRANTEE shall cooperate with COMMERCE to complete the requirements of Governor's Executive Order 05-05 or Executive Order 21-02,where applicable, or GRANTEE shall complete a review under Section 106 of the National Historic Preservation Act, if applicable.GRANTEE agrees that the GRANTEE is legally and financially responsible for compliance with all laws, regulations,and agreements related to the preservation of historical or cultural resources and agrees to hold harmless COMMERCE and the state of Washington in relation to any claim related to such historical or cultural resources discovered, disturbed, or damaged as a result of the project funded by this Contract. 8 15 SPECIAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS In addition to the requirements set forth in this Contract, GRANTEE shall, in accordance with Governor's Executive Order 05-05 or Executive Order 21-02 as applicable, coordinate with Commerce and the Washington State Department of Archaeology and Historic Preservation ("DAHP"), including any recommended consultation with any affected tribe(s), during Project design and prior to construction to determine the existence of any tribal cultural resources affected by Project. GRANTEE agrees to avoid, minimize,or mitigate impacts to the cultural resource as a continuing prerequisite to receipt of funds under this Contract. The GRANTEE agrees that, unless the GRANTEE is proceeding under an approved historical and cultural monitoring plan or other memorandum of agreement, if historical or cultural artifacts are discovered during construction,the GRANTEE shall immediately stop construction and notify the local historical preservation officer and the state's historical preservation officer at DAHP, and the Commerce Representative identified on the Face Sheet. If human remains are uncovered, the GRANTEE shall report the presence and locatbn of the remains to the coroner and local enforcement immediately,then contact DAHP and the concerned tribe's cultural staff or committee. The GRANTEE shall require this provision to be contained in all subcontracts for work or services related to the Scope of Work attached hereto. In addition to the requirements set forth in this Contract, GRANTEE agrees to comply with RCW 27.44 regarding Indian Graves and Records; RCW 27.53 regarding Archaeological Sites and Resources; RCW 68.60 regarding Abandoned and Historic Cemeteries and Historic Graves; and WAC 25-48 regarding Archaeological Excavation and Removal Permits. Completion of the requirements of Section 106 of the National Historic Preservation Act shall substitute for completion of Governor's Executive Order 05-05 and Executive Order 21-02. In the event that the GRANTEE finds it necessary to amend the Scope of Work the GRANTEE may be required to re-comply with Governor's Executive Order 05-05, Executive Order 21-02, or Section 106 of the National Historic Preservation Act. 19. REAPPROPRIATION A. The parties hereto understand and agree that any state funds not expended by June 30, 2023 will lapse on that date unless specifically reappropriated by the Washington State Legislature. If funds are so reappropriated,the states obligation under the terms of this contract shall be contingent upon the terms of such reappropriation. B. In the event any funds awarded under this contract are reappropriated for use in a future biennium, COMMERCE reserves the right to assign a reasonable share of any such reappropriation for administrative costs. 20. TERMINATION FOR FRAUD OR MISREPRESENTATION In the event the GRANTEE commits fraud or makes any misrepresentation in connection with the Grant application or during the performance of this contract,COMMERCE reserves the right to terminate or amend this contract accordingly,including the right to recapture all funds disbursed to the GRANTEE under the Grant. 9 16 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 1. DEFINITIONS As used throughout this Grant,the following terms shall have the meaning set forth below: A. "Authorized Representative"shall mean the Director and/or the designee authorized in writing to act on the Director's behalf. B. "COMMERCE"shall mean the Department of Commerce. C. "GRANTEE" shall mean the entity identified on the face sheet performing service(s)under this Grant, and shall include all employees and agents of the GRANTEE. D. "Personal Information"shall mean information identifiable to any person, including,but not limited to, information that relates to a person's name, health, finances,education, business, use or receipt of governmental services or other activities, addresses,telephone numbers, social security numbers, driver license numbers,other identifying numbers, and any financial identifiers. E. "State"shall mean the state of Washington. F. "Subgrantee/subcontractor shall mean one not in the empbyment of the GRANTEE, who is performing all or part of those services under this Grant under a separate Grant with the GRANTEE. The terms"subgrantee/subcontractor refers to any tier. G. "Subrecipient"shall mean a non-federal entity that expends federal awards received from a pass- through entity to carry out a federal program, but does not include an individual that is a beneficiary of such a program. It also excludes vendors that receive federal funds in exchange for goods and/or services in the course of normal trade or commerce. H. 'Vendor" is an entity that agrees to provide the amount and kind of services requested by COMMERCE; provides services under the grant only to those beneficiaries individually determined to be eligible by COMMERCE and, provides services on a fee-for-service or per-unit basis with contractual penalties if the entity fails to meet program performance standards. 2. ACCESS TO DATA In compliance with RCW 39.26.180,the GRANTEE shall provide access to data generated under this Grant to COMMERCE,the Joint Legislative Audit and Review Committee, and the Office of the State Auditor at no additional cost. This includes access to all information that supports the findings, conclusions, and recommendations of the GRANTEE's reports,including computer models and the methodology for those models. 3. ADVANCE PAYMENTS PROHIBITED No payments in advance of or in anticipation of goods or services to be provided under this Grant shall be made by COMMERCE. 4. ALL WRITINGS CONTAINED HEREIN This Grant contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise,regarding the subject matter of this Grant shall be deemed to exist or to bind any of the parties hereto. 5. AMENDMENTS This Grant may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. 1 17 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 6. AMERICANS WITH DISABILITIES ACT(ADA)OF 1990. PUBLIC LAW 101-336. also referred to as the "ADA" 28 CFR Part 35 The GRANTEE must comply with the ADA,which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. 7. ASSIGNMENT Neither this Grant, nor any claim arising under this Grant,shall be transferred or assigned by the GRANTEE without prior written consent of COMMERCE. 8. ATTORNEYS' FEES Unless expressly permitted under another provision of the Grant, in the event of litigation or other action brought to enforce Grant terms,each party agrees to bear its own attorneys fees and costs. 9. AUDIT A. General Requirements COMMERCE reserves the right to require an audit. If required, GRANTEEs are to procure audit services based on the following guidelines. The GRANTEE shall maintain its records and accounts so as to facilitate audits and shall ensure that subgrantees also maintain auditable records. The GRANTEE is responsible for any audit exceptions incurred by its own organization or that of its subgrantees. COMMERCE reserves the right to recover from the GRANTEE all disallowed costs resulting from the audit. Responses to any unresolved management findings and disallowed or questioned costs shall be included with the audit report. The GRANTEE must respond to COMMERCE requests for information or corrective action concerning audit issues within thirty(30)days of the date of request. B. State Funds Requirements In the event an audit is required, if the GRANTEE is a state or local government entity,the Office of the State Auditor shall conduct the audit. Audits of non-profit organizations are to be conducted by a certified public accountant selected by the GRANTEE. The GRANTEE shall include the above audit requirements in any subcontracts. In any case,the GRANTEE's records must be available for review by COMMERCE. C. Documentation Reauirements The GRANTEE must send a copy of the audit report described above no later than nine(9) months after the end of the GRANTEE's fiscal year(s)by sending a scanned copy to auditreview@commerce.wa.govora hard copy to: Department of Commerce ATTN: Audit Review and Resolution Office 1011 Plum Street SE PO Box 42525 Olympia WA 98504-2525 In addition to sending a copy of the audit, when applicable,the GRANTEE must include: 2 18 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS • Corrective action plan for audit findings within three(3) months of the audit being received by COMMERCE. • Copy of the Management Letter. If the GRANTEE is required to obtain a Single Audit consistent with CircularA-133 requirements, a copy must be provided to COMMERCE; no other report is required. 10. BREACHES OF OTHER STATE CONTRACTS GRANTEE is expected to comply with all other contracts executed between GRANTEE and the State of Washington.A breach of any other agreement entered into between GRANTEE and the State of Washington may, in COMMERCE's discretion, be deemed a breach of this Agreement. 11. CONFIDENTIALITY/SAFEGUARDING OF INFORMATION A. "Confidential Information"as used in this sectbn includes: 1. All material provided to the GRANTEE by COMMERCE that is designated as"confidential" by COMMERCE; 2. All material produced by the GRANTEE that is designated as"confidential"by COMMERCE; and 3. All personal information in the possession of the GRANTEE that may not be discbsed under state or federal law. "Personal information"includes but is not limited to information related to a person's name, health, finances,education, business, use of government services, addresses,telephone numbers,social security number,driver's license number and other identifying numbers, and"Protected Health Information"under the federal Health Insurance Portability and Accountability Act of 1996(HIPAA). B. The GRANTEE shall comply with all state and federal laws related to the use,sharing, transfer, sale, or disclosure of Confidential Information. The GRANTEE shall use Confidential Information solely for the purposes of this Grant and shall not use, share, transfer, sell or disclose any Confidential Information to any third party except with the prior written consent of COMMERCE or as may be required by law. The GRANTEE shall take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing,transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto. Upon request, the GRANTEE shall provide COMMERCE with its policies and procedures on confidentiality. COMMERCE may require changes to such policies and procedures as they apply to this Grant whenever COMMERCE reasonably determines that changes are necessary to prevent unauthorized disclosures. The GRANTEE shall make the changes within the time period specified by COMMERCE. Upon request, the GRANTEE shall immediately return to COMMERCE any Confidential Information that COMMERCE reasonably determines has not been adequately protected by the GRANTEE against unauthorized disclosure. C. Unauthorized Use or Disclosure. The GRANTEE shall notify COMMERCE within five(5)working days of any unauthorized use or discbsure of any confidential information, and shall take necessary steps to mitigate the harmful effects of such use or disclosure. 12. CONFLICT OF INTEREST Notwithstanding any determination by the Executive Ethics Board or other tribunal, COMMERCE may, in its sole discretion,by written notice to the GRANTEE terminate this contract if it is found after due notice and examination by COMMERCE that there is a violation of the Ethics in Public Service Act, Chapters 42.52 RCW and 42.23 RCW; or any similar statute involving the GRANTEE in the procurement of, or performance under this contract. Specific restrictions apply to contracting with current or former state employees pursuant to chapter 42.52 of the Revised Code of Washington. 3 19 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS The GRANTEE and their subcontractor(s)must identify any person employed in any capacity by the state of Washington that worked on this Grant,or any matter related to the project funded under this Grant or any other state funded project, including but not limited to formulating or drafting legislatbn, participating in grant procurement, planning and execution,awarding grants,or monitoring grants, during the 24 month period preceding the start date of this Grant.Any person identified by the GRANTEE and their subcontractors(s) must be identified individually by name,the agency previously or currently employed by,job title or position held,and separatbn date. If it is determined by COMMERCE that a conflict of interest exists, the GRANTEE may be disqualified from further consideration for the award of a Grant. In the event this contract is terminated as provided above, COMMERCE shall be entitled to pursue the same remedies against the GRANTEE as it could pursue in the event of a breach of the contract by the GRANTEE. The rights and remedies of COMMERCE provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which COMMERCE makes any determination under this clause shall be an issue and may be reviewed as provided in the"Disputes"clause of this contract. 13. COPYRIGHT PROVISIONS Unless otherwise provided, all Materials produced under this Grant shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by COMMERCE. COMMERCE shall be considered the author of such Materials. In the event the Materials are not considered'Works for hire"under the U.S. Copyright laws,the GRANTEE hereby irrevocably assigns all right,title, and interest in all Materials, including all intellectual property rights,moral rights,and rights of publicity to COMMERCE effective from the moment of creation of such Materials. "Materials"means all items in any format and includes, but is not limited to,data, reports,documents, pamphlets, advertisements, books,magazines, surveys, studies,computer programs,films,tapes, and/or sound reproductions. "Ownership"includes the right to copyright,patent, register and the ability to transfer these rights. For Materials that are delivered under the Grant, but that incorporate pre-existing materials not produced under the Grant, the GRANTEE hereby grants to COMMERCE a nonexclusive, royalty-free, irrevocable license(with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The GRANTEE warrants and represents that the GRANTEE has all rights and permissbns,including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to COMMERCE. The GRANTEE shall exert all reasonable effort to advise COMMERCE, at the time of delivery of Materials furnished under this Grant,of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Grant. The GRANTEE shall provide COMMERCE with prompt written notice of each notice or claim of infringement received by the GRANTEE with respect to any Materials delivered under this Grant. COMMERCE shall have the right to modify or remove any restrictive markings placed upon the Materials by the GRANTEE. 14. DISPUTES Except as otherwise provided in this Grant,when a dispute arises between the parties and it cannot be resolved by direct negotiation,either party may request a dispute hearing with the Director of COMMERCE, who may designate a neutral person to decide the dispute. The request for a dispute hearing must: • be in writing; • state the disputed issues; • state the relative positions of the parties; • state the GRANTEE's name, address,and Contract number;and 4 20 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS • be mailed to the Director and the other party's (respondent's)Grant Representative within three (3) working days after the parties agree that they cannot resolve the dispute. The respondent shall send a written answer to the requestor's statement to both the Director or the Director's designee and the requestor within five(5)working days. The Director or designee shall review the written statements and reply in writing to both parties within ten (10) working days. The Director or designee may extend this period if necessary by notifying the parties. The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal. Nothing in this Grant shall be construed to limit the parties'choice of a mutually acceptable alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined above. 15. DUPLICATE PAYMENT COMMERCE shall not pay the GRANTEE,if the GRANTEE has charged or will charge the State of Washington or any other party under any other Grant, subgrant/subcontract,or agreement, for the same services or expenses. 16. GOVERNING LAW AND VENUE This Grant shall be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. 17. INDEMNIFICATION To the fullest extent permitted by law,the GRANTEE shall indemnify,defend, and hold harmless the state of Washington, COMMERCE,agencies of the state and all officials, agents and employees of the state, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. "Claim"as used in this contract, means any financial loss,claim, suit, action, damage, or expense, including but not limited to attorneys fees,attributable for bodily injury, sickness,disease,or death, or injury to or the destruction of tangible property including loss of use resulting therefrom. The GRANTEE's obligation to indemnify, defend, and hold harmless includes any claim by GRANTEE's agents, empbyees,representatives, or any subgrantee/subcontractor or its empbyees. GRANTEE expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to GRANTEE'S or any subgrantee's/subcontractor's performance or fai lure to perform the Grant. GRANTEE'S obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agents, agencies, employees and officials. The GRANTEE waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the state and its agencies, officers, agents or employees. 18. INDEPENDENT CAPACITY OF THE GRANTEE The parties intend that an independent contractor relationship will be created by this Grant. The GRANTEE and its employees or agents performing under this Contract are not employees or agents of the state of Washington or COMMERCE. The GRANTEE will not hold itself out as or claim to be an officer or employee of COMMERCE or of the state of Washington by reason hereof, nor will the GRANTEE make any claim of right, privilege or benefit which would accrue to such officer or employee under law. Conduct and control of the work will be solely with the GRANTEE. 5 21 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 19. INDUSTRIAL INSURANCE COVERAGE The GRANTEE shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the GRANTEE fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, COMMERCE may collect from the GRANTEE the full amount payable to the Industrial Insurance Accident Fund. COMMERCE may deduct the amount owed by the GRANTEE to the accident fund from the amount payable to the GRANTEE by COMMERCE under this Contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to collect from the GRANTEE. 20. LAWS The GRANTEE shall comply with all applicable laws,ordinances,codes, regulations and policies of local and state and federal governments, as now or hereafter amended. 21. LICENSING.ACCREDITATION AND REGISTRATION The GRANTEE shall comply with all applicable local, state, and federal licensing,accreditation and registration requirements or standards necessary for the performance of this Contract. 22. LIMITATION OF AUTHORITY Only the Authorized Representative or Authorized Representative'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 Contract. Furthermore, any alteration, amendment, modification, or waiver or any clause or condition of this contract is not effective or binding unless made in writing and signed by the Authorized Representative. 23. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS During the performance of this Grant,the GRANTEE shall comply with all federal, state,and local nondiscriminatbn laws,regulations and policies. In the event of the GRANTEE's non-compliance or refusal to comply with any nondiscrimination law,regulation or policy,this Grant may be rescinded, canceled or terminated in whole or in part, and the GRANTEE may be declared ineligible for further Grants with COMMERCE. The GRANTEE shall, however, be given a reasonable time in which to cure this noncompliance.Any dispute may be resolved in accordance with the"Disputes"procedure set forth herein. The funds provided under this contract may not be used to fund religious worship, exercise, or instruction. No person shall be required to participate in any religious worship,exercise, or instruction in order to have access to the facilities funded by this grant. 24. PAY EQUITY The GRANTEE agrees to ensure that"similarly employed"individuals in its workforce are compensated as equals, consistent with the following: a. Employees are"similarly employed"if the individuals work for the same employer,the performance of the job requires comparable skill, effort, and responsibility,and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed; b. GRANTEE may allow differentials in compensatbn for its workers if the differentials are based in good faith and on any of the following: (i) A seniority system;a merit system; a system that measures earnings by quantity or quality of production; a bona fide job-related factor or factors; or a bona fide regional difference in compensation levels. 6 22 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS (ii)A bona fide job-related factor or factors may include,but not be limited to,education, training, or experience that is:Consistent with business necessity;not based on or derived from a gender-based differential; and accounts for the entire differential. (iii)A bona fide regional difference in compensation level must be: Consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential. This Contract may be terminated by COMMERCE,if COMMERCE or the Department of Enterprise services determines that the GRANTEE is not in compliance with this provision. 25. POLITICAL ACTIVITIES Political activity of GRANTEE employees and officers are limited by the State Campaign Finances and Lobbying provisions of Chapter 42.17a RCW and the Federal Hatch Act, 5 USC 1501 - 1508. No funds may be used for working for or against ballot measures or for or against the candidacy of any person for public office. 26. PUBLICITY The GRANTEE agrees not to publish or use any advertising or publicity materials in which the state of Washington or COMMERCE's name is mentioned, or language used from which the connection with the state of Washington's or COMMERCE's name may reasonably be inferred or implied, without the prior written consent of COMMERCE. 27. RECAPTURE In the event that the GRANTEE fails to perform this Grant in accordancewith state laws,federal laves, and/or the provisions of this Grant, COMMERCE reserves the right to recapture funds in an amount to compensate COMMERCE for the noncompliance in addition to any other remedies available at law or in equity. Repayment by the GRANTEE of funds under this recapture provision shall occur within the time period specified by COMMERCE.In the alternative, COMMERCE may recapture such funds from payments due under this Grant. 28. RECORDS MAINTENANCE The GRANTEE shall maintain books, records,documents,data and other evidence relating to this Grant and performance of the services described herein, including but not limited to accounting procedures and practices that sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Grant. GRANTEE shall retain such records fora period of six years following the date of final payment. At no additional cost, these records,including materials generated under the Grant, shall be subject at all reasonable times to inspection,review or audit by COMMERCE,personnel duly authorized by COMMERCE,the Office of the State Auditor, and federal and state officials so authorized by law, regulation or agreement. 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. 29. REGISTRATION WITH DEPARTMENT OF REVENUE If required by law,the GRANTEE shall complete registration with the Washington State Department of Revenue. 7 23 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 30. RIGHT OF INSPECTION The GRANTEE shall provide right of access to its facilities to COMMERCE,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 Grant. 31. SAVINGS In the event funding from state, federal, or other sources is withdrawn, reduced,or limited in any way after the effective date of this Grant and prior to normal completion,COMMERCE may terminatethe Grant under the"Termination for Convenience" clause, without the ten calendar day notice requirement. In lieu of termination,the Grant may be amended to reflect the new funding limitations and conditions. 32. SEVERABILITY The provisions of this Grant 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 Grant. 33. SITE SECURITY While on COMMERCE premises,GRANTEE, its agents, empbyees,or subcontractors shall conform in all respects with physical,fire or other security policies or regulations. 34. SUBGRANTING/SUBCONTRACTING Neither the GRANTEE nor any subgrantee/subcontractor shall enter into subgrants/subcontracts for any of the work contemplated under this contract without obtaining prior written approval of COMMERCE. In no event shall the existence of the subgrant/subcontract operate to release or reduce the liability of the GRANTEE to COMMERCE for any breach in the performance of the GRANTEE's duties. This clause does not include Grants of employment between the GRANTEE and personnel assigned to work under this Grant. Additionally, the GRANTEE is responsible for ensuring that all terms, conditions, assurances and certifications set forth in this agreement are carried forward to any subgrants/subcontracts. GRANTEE and its subgrantees/subcontractors agree not to release, divulge, publish, transfer, sell or otherwise make known to unauthorized persons personal information without the express written consent of COMMERCE or as provided by law. 35. SURVIVAL The terms, conditions, and warranties contained in this Grant that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Grant shall so survive. 36. TAXES All payments accrued on account of payroll taxes,unemployment contributions,the GRANTEE's income or gross receipts, any other taxes,insurance or expenses for the GRANTEE or its staff shall be the sole responsibility of the GRANTEE. 37. TERMINATION FOR CAUSE In the event COMMERCE determines the GRANTEE has failed to comply with the conditions of this Grant in a timely manner, COMMERCE has the right to suspend or terminate this Grant. 8 24 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS Before suspending or terminating the Grant,COMMERCE shall notify the GRANTEE in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days,the Grant may be terminated or suspended. In the event of termination or suspension,the GRANTEE shall be liable for damages as authorized by law including, but not limited to, any cost difference between the original Grant and the replacement or cover Grant and all administrative costs directly related to the replacement Grant,e.g.,cost of the competitive bidding, mailing,advertising and staff time. COMMERCE reserves the right to suspend all or part of the Grant, withhold further payments, or prohibit the GRANTEE from incurring additional obligations of funds during investigation of the alleged compliance breach and pending corrective action by the GRANTEE ora decision by COMMERCE to terminate the Grant. A termination shall be deemed a"Termination for Convenience' if it is determined that the GRANTEE:(1)was not in default; or(2)failure to perform was outside of his or her control, fault or negligence. The rights and remedies of COMMERCE provided in this Grant are not exclusive and are, in addition to any other rights and remedies, provided by law. 38. TERMINATION FOR CONVENIENCE Except as otherwise provided in this Grant, COMMERCE may, by ten(10)business days written notice, beginning on the second day after the mailing,terminate this Grant, in whole or in part. If this Grant is so terminated,COMMERCE shall be liable only for payment required under the terms of this Grant for services rendered or goods delivered prior to the effective date of termination. 39. TERMINATION PROCEDURES Upon termination of this Grant, COMMERCE,in addition to any other rights provided in this Grant, may require the GRANTEE to deliver to COMMERCE any property specifically produced or acquired for the performance of such part of this Grant as has been terminated. The provisions of the "Treatment of Assets"clause shall apply in such property transfer. COMMERCE shall pay to the GRANTEE the agreed upon price,if separately stated,for completed work and services accepted by COMMERCE,and the amount agreed upon by the GRANTEE and COMMERCE for(i)completed work and services for which no separate price is stated, (ii)partially completed work and services, (iii)other property or services that are accepted by COMMERCE, and (iv) the protection and preservation of property, unless the termination is for default, in which case the AUTHORIZED REPRESENTATIVE shall determine the extent of the liability of COMMERCE. Failure to agree with such determination shall be a dispute within the meaning of the"Disputes" clause of this Grant. COMMERCE may withhold from any amounts due the GRANTEE such sum as the AUTHORIZED REPRESENTATIVE determines to be necessary to protect COMMERCE against potential loss or liability. The rights and remedies of COMMERCE provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. After receipt of a notice of termination, and except as otherwise directed by the AUTHORIZED REPRESENTA11VE,the GRANTEE shall: 1. Stop work under the Grant on the date, and to the extent specified, in the notice; 2. Place no further orders or subgrants/subcontracts for materials,services, or facilities except as may be necessary for completion of such portion of the work under the Grant that is not terminated; 9 25 GENERAL TERMS AND CONDITIONS GENERAL GRANT STATE FUNDS 3. Assign to COMMERCE, in the manner, at the times, and to the extent directed by the AUTHORIZED REPRESENTATIVE, all of the rights,title,and interest of the GRANTEE under the orders and subgrants/subcontracts so terminated,in which case COMMERCE has the right,at its discretion, to settle or pay any or all claims arising out of the termination of such orders and s u bg ra nts/subcontracts; 4. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the AUTHORIZED REPRESENTATIVE to the extent AUTHORIZED REPRESENTATIVE may require, which approval or ratification shall be final for all the purposes of this clause; 5. Transfer title to COMMERCE and deliver in the manner, at the times, and to the extent directed by the AU1HORIZED REPRESENTATIVE any property which, if the Grant had been completed, would have been required to be furnished to COMMERCE; 6. Complete performance of such part of the work as shall not have been terminated by the AUTHORIZED REPRESENTATIVE; and 7. Take such action as may be necessary, or as the AUTHORIZED REPRESENTATIVE may direct, for the protection and preservation of the property related to this Grant,which is in the possession of the GRANTEE and in which COMMERCE has or may acquire an interest. 40. TREATMENT OF ASSETS Title to all property furnished by COMMERCE shall remain in COMMERCE. Title to all property furnished by the GRANTEE, for the cost of which the GRANTEE is entitled to be reimbursed as a direct item of cost under this Grant, shall pass to and vest in COMMERCE upon delivery of such property by the GRANTEE. Title to other property, the cost of which is reimbursable to the GRANTEE under this Grant, shall pass to and vest in COMMERCE upon (i)issuance for use of such property in the performance of this Grant, or (ii) commencement of use of such property in the performance of this Grant, or(iii) reimbursement of the cost thereof by COMMERCE in whole or in part, whichever first occurs. A. Any property of COMMERCE furnished to the GRANTEE shall, unless otherwise provided herein or approved by COMMERCE, be used only for the performance of this Grant. B. The GRANTEE shall be responsible for any loss or damage to property of COMMERCE that results from the negligence of the GRANTEE or which results from the failure on the part of the GRANTEE to maintain and administer that property in accordance with sound management practices. C. If any COMMERCE property is lost, destroyed or damaged, the GRANTEE shall immediately notify COMMERCE and shall take all reasonable steps to protect the property from further damage. D. The GRANTEE shall surrender to COMMERCE all property of COMMERCE priorto settlement upon completion, termination or cancellation of this Grant All reference to the GRANTEE under this clause shall also include GRANTEE'S employees, agents or subgrantees/subcontractors. 41. WAIVER Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Any waiver shall not be construed to be a modification of the terms of this Grant unless stated to be such in writing and signed by Authorized Representative of COMMERCE. 10 26 Attachment A Scope of Work Funds for this grant will be used for the Nelson Dam Removal Project located at W Powerhouse and South Naches Road, Yakima,WA. Work will include, but not be limited to the removal of fill, concrete dam,fish ladder and fish screens,and installation of roughened channel with fish ways and pilot channels and concrete channel and new fish screens. This project will replace concrete ogee dam with roughened channel,consolidate four irrigation diversions into one, replace aging fish screens that meet current criteria,widen channel for flood reduction, and add pipe lines to accommodate consolidation and improve water supply reliability for irrigation. The project is scheduled to be complete in December 2023. All project work completed with prior legislative approval. The "Copyright Provisions", Section 12 of the General Terms and Conditions, are not intended to apply to any architectural and engineering design work funded by this grant. CERIIFICA11ON PERFORMANCE MEASURE The GRANTEE, by its signature, certifies that the declaratbn set forth above has been reviewed and approved by the GRANTEE's governing body as of the date and year written below. GRANTEE TITLE DATE 27 Attachment B Budget Line Item Amount Construction $19,972,253.00 Construction Management $1,650,000.00 Total Contracted Amount: $21,622,253.00 CERl1FICAl1ON PERFORMANCE MEASURE The GRANTEE, by its signature, certifies that the Project Budget set forth above has been reviewed and approved by the GRANTEE's governing body or board of directors, as applicable,as of the date and year written below. GRANTEE 11TLE DATE 28 Attachment C Certification of the Availability of Fundsto Complete the Project Non-State Funds Amount Total Rivers Legacy Fund $500,000.00 Bureau of Reclamation $350,000.00 City of Yakima $10,863,753.00 Total Non-State Funds $11,713,753.00 State Funds 2021-23 State Capital Budget 22-96634-118 $1,298,500.00 Department of Ecology- Floodplain by Design $4,476,000.00 Department of Fish and Wildlife Brian Abbott Fish Barrier $4,134,000.00 Removal Board $9,908,500.00 Total Non-State and State Sources $21,622,253.00 CERTIFICATION PERFORMANCE MEASURE The GRANTEE, by its signature, certifies that project funding from sources other than those provided by this contract and identified above has been reviewed and approved by the GRANTEE's governing body or board of directors, as applicable,and has either been expended for eligible Project expenses, or is committed in writing and available and will remain committed and available solely and specifically for carrying out the purposes of this Project as described in elsewhere in this contract, as of the date and year written below. The GRANTEE shall maintain records sufficient to evidence that it has expended or has access to the funds needed to complete the Project,and shall make such records available for COMMERCE'S review upon reasonable request. GRANTEE 11TLE DATE 29 Attachment D Certification of the Payment and Reporting of Prevailing Wages CERIIFICA11ON PERFORMANCE MEASURE The GRANTEE, by its signature, certifies that all contractors and subcontractors performing work on the Project shall comply with prevailing wage laws set forth in Chapter 39.12 RCW,as of May 18, 2021 (for the 21-23 biennium), including but not limited to the filing of the"Statement of Intent to Pay Prevailing Wages"and"Affidavit of Wages Paid"as required by RCW 39.12.040. The GRANTEE shall maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and shall make such records available for COMMERCE'S review upon request. If any state funds are used by the GRANTEE for the purpose of construction, applicable State Prevailing Wages must be paid. The GRANTEE, by its signature, certifies that the declaratbn set forth above has been reviewed and approved by the GRANTEE's governing body as of the date and year written below. GRANTEE 11TLE DATE 30 Attachment E Certification of Intent to Enterthe Leadership in Energy and Environmental Design(LEED)Ce rtifi cati on Process CERIIFICA11ON PERFORMANCE MEASURE The GRANTEE, by its signature, certifies that it will enter into the Leadership in Energy and Environmental Design certification process, as stipulated in RCW 39.35D,as applicable tothe Project funded by this contract. The GRANTEE shall, upon receipt of LEED certificatbn by the United States Green Building Council, provide documentatbn of such certification to COMMERCE. The GRANTEE, by its signature, certifies that the declaratbn set forth above has been reviewed and approved by the GRANTEE's governing body or board of directors, as applicable,as of the date and year written below. GRANTEE 11TLE DATE