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HomeMy WebLinkAboutR-1992-D6194 Railroad Area / Department of Ecology1) 6194 RESOLUTION NO. A RESOLUTION: authorizing execution of the Yakima Water System Remedial Action Agreement with the Washington Department of Ecology. WHEREAS, the Yakima Railroad Area is an area designated by the Washington Department of Ecology which contains ground water contaminated with tetrachloroethylene or PCE; and WHEREAS, the Washington Department of Ecology has offered to the City of Yakima a grant of Four Million, Four Hundred Ninety -Nine Thousand, Nine Hundred Twelve Dollars for the purpose of constructing a domestic water system in that portion of the Yakima Railroad Area within the City of Yakima and immediately adjacent thereto; and WHEREAS, the construction of such domestic water system would be immediately beneficial to the citizens of Yakima living within such railroad contamination area as well as those living outside of the City's boundaries; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to enter into the hereinafter referenced agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are hereby authorized and directed to execute the attached and incorporated agreement with the Washington Department of Ecology entitled, "Yakima Water System Remedial Action Agreement with the City of Yakima." 0 c,-7 ADOPTED BY THE CITY COUNCIL this day of , 1992. ATTEST: City Clerk resJaprvl agrpt.jv A Mayor Grant No. WI3 00 11 -7 Yakima Water System Remedial Action Agreement with the City of Yakima STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND CITY OF YAKIMA This is a binding agreement entered into by and between the state of Washington Department of Ecology, hereinafter referred to as the DEPARTMENT, and the City of Yakima, hereinafter referred to as the RECIPIENT, to carry out the activities described herein. RECIPIENT ADDRESS 129 North Second Street Yakima, WA 98901 RECIPIENT REPRESENTATIVE RECIPIENT TELEPHONE NUMBER RECIPIENT PROJECT OFFICER DEPARTMENT PROJECT OFFICER DEPARTMENT FAX REGIONAL DEPARTMENT REPRESENTATIVE 558) Dennis Covell (509) 575-6161 Dennis Covell Maggie Bell -McKinnon (206) 493.9472 (SCAN 585) (206) 459-6445 Tony Valero, CRO, (509) 454-7833 (SCAN DEPARTMENT OF HEALTH ENGINEER Craig Riley, (509) 456-2466 FUNDING SOURCE Local Toxics Control Account MAXIMUM ELIGIBLE COST $4,499,912 STATE GRANT SHARE $4,499,912 LOCAL SHARE $-0- STATE MAXIMUM GRANT PERCENT 100% FEDERAL TAX IDENTIFICATION NO. 91-6001293 The effective date of this grant shall be September 1, 1992. Any work performed prior to the effective date of this agreement without prior written authorization and specified in the Scope of Work will be at the sole expense and risk of the RECIPIENT. This agreement shall expire no later than December 31, 1995. 1 of 10 Grant No. Gq3 by I I7 Yakima Water System Remedial Action Agreement with the City of Yakima SCOPE OF WORK A. PROJECT TITLE Yakima Railroad Area Public Water System Design and Construction B. PROJECT DESCRIPTION The Yakima Railroad Area is a contaminated site of approximately 18 square miles in size, contained within the jurisdictions of the City of Yakima, the City of Union Gap, and Yakima County. The site contains groundwater contaminated with tetrachloroethylene or PCE (commonly called perc). PCE was detected in the groundwater by the EPA in 1987. Well sampling was done in conjunction with the site investigation. The DEPARTMENT records show that eight out of forty private wells sampled showed levels of PCE contamination ranging from 4-31 parts per billion (ppb). The federal drinking water level (maximum contaminant level) for PCE is five (5) ppb; the Washington Department of Health State Advisory level is four (4) ppb. The following have been named as Potentially Liable Parties (PLPs): U -Haul Company, Paxton Sales Corporation, Frank Wear Cleaners, Nu -Way Dry Cleaners, Cameron -Yakima Inc., CMX Corporation, Yakima County, Briar Development Company, Hahn Motor Company, and Burlington Northern. Further PLPs may be named in the future. The primary Remedial Action at the Yakima Railroad Area will consist of the construction of an extension to the existing City of Yakima public water supply system into the contaminated area and provide voluntary hookups by residents and businesses of the area. The intent of this project is to deliver city water to 775 properties which are currently served by contaminated or potentially contaminated well water. This agreement provides funding for all eligible major project tasks. C. MAJOR PROJECT TASKS TASK 1 PROJECT DESIGN ENGINEERING The RECIPIENT will: Contract out for consultant services to prepare a Preliminary Project Report which will describe the general project plan including a hydraulic analysis, confirmation of line sizes, and an analysis, confirmation of line sizes, and an analysis of fire flow needs. Contract out for consultant services to prepare a Project Report for the design of the water distribution system extension and develop plans and specifications for each construction phase. • Solicit construction bids and review the contractor's bid for accuracy and completeness; 2 of 10 Grant No. G9 30D Yakima Water System Remedial Action Agreement with the City of Yakima • Recommend award of the construction contract(s) to the lowest, responsive responsible bidder. The project design will be prepared and executed in phases as described in the Project Report. Construction details and specifications shall be consistent with the standard specifications that were approved with the local comprehensive water plan and the Project Report. A formal review of the documents of each phase will be conducted by the DEPARTMENT and the Washington Department of Health (hereinafter referred to as HEALTH) and, as required by Chapter 246-290-110 and 120 WAC, approval of the construction documents shall be obtained from HEALTH prior to any construction phase of the water distribution system extension. TASK 2 IMMEDIATE HOOKUPS The RECIPIENT shall provide for the immediate hookup, and for water meter sets as required, to the existing municipal water system of those properties where there is an existing service line in the adjoining street. Priority will be given to residential property owners. After all the residential property owners have been given the hookup opportunity, business property owners will be offered the opportunity for the immediate hookup. The RECIPIENT will present to the DEPARTMENT a list of those aforementioned properties capable of immediate hookup and the estimated cost. The RECIPIENT shall provide administration and oversight for the immediate hookup program. Administration and oversight shall consist of the RECIPIENT providing a staff person who will visit each residential property owner and/or business owner and provide all information necessary for that residence/business to complete the immediate hookup process. The necessary information shall consist of: 1) A form letter outlining why the water hookup service is being provided, that the hookup service will be provided to the resident or property owner at no charge, and, once the water hookup is completed, the resident or property owner will be responsible for all subsequent costs related to providing water to that residence/business, 2) A list of eligible contractors and their phone numbers, 3) A step-by-step explanation on how to obtain the free water hookup. Informational materials developed for distribution under this task shall also be available in Spanish upon request. During the immediate hookup activity, the RECIPIENT will insure that all existing well disconnects are completed by sending a copy of the City Inspector's inspection report of the well disconnect to the property owner and the DEPARTMENT Project Officer. TASK 3 PROJECT MANAGEMENT Project management shall be performed by, or under the direct supervision of, a professional engineer. The RECIPIENT shall conduct a preconstruction and subsequent construction meetings. The RECIPIENT shall provide timely notification to HEALTH and the DEPARTMENT regarding all design, pre - construction, and any construction update meetings, as well as final inspection activities. 3 of 10 Grant No. GG' 3 O O I+ 7 Yakima Water System Remedial Action Agreement with the City of Yakima The RECIPIENT shall monitor the construction activities to: Ensure conformance to the design plans and specifications. Maintain records of activities as required by applicable regulations. • Maintain records of activities as required by applicable regulations. • Request review and approval from HEALTH and the DEPARTMENT for any construction change orders in the amount over $10,000. For any amount under $10,000, approval for a construction change order shall be obtained from HEALTH and the DEPARTMENT prior to approval of the voucher payment for that construction change order. • Review and authorize requests to deviate from the design plans and specifications. • Document as -built changes. • Ensure compliance with construction quality assurance activities (CQA), as identified in the plans and specifications or an approved CQA plan. The RECIPIENT shall ensure public participation and provide opportunity for public review and comment on the project. The first public informational meeting shall be conducted at the completion of the first design phase as identified in the Project Report. Thereafter, public meeting shall occur at six (6) month intervals or upon such later date as agreed by the DEPARTMENT, HEALTH, and the RECIPIENT. TASK 4 CONSTRUCTION Authorization to proceed with each construction phase shall be contingent on the review and approval by HEALTH and the DEPARTMENT of the design phase. The budget for Task 4 will be amended after completion of the bidding process for each construction phase of the water distribution system extension. In accordance with the approved Comprehensive Water Plan and the Project Plan, the RECIPIENT shall construct an extension of the existing public water supply system into the site known as the Yakima Railroad Area. The water service shall be extended along the streets identified in the map entitled "Yakima Railroad Area" (created by the City of Yakima on June 4, 1992) or as modified by the engineering design. The construction of this extension shall comply with the plans and specifications as required in Task 1 and follow all applicable HEALTH rules and regulations. The construction shall include, but not be limited to the following elements: Mobilization - Excavation - Shoring and Cribbing - 4 of 10 Grant No. v i 3 bb i -7 Yakima Water System Remedial Action Agreement with the City of Yakima Pipe Bedding - Pipe Laying - Backfill and Compaction - Fire Hydrants - Roadway Repair - Traffic Control - Final Inspection/Project Closeout - TASK 5 METER SETS The RECIPIENT shall purchase and install water meter sets for the developed properties within their service areas. The "meter sets" shall include all materials and labor required to install the individual corporation stop, service line, curb stop, water meter and meter pit located at the property line. TASK 6 WATER HOOKUPS FOR RESIDENTS AND BUSINESSES The RECIPIENT shall provide extensions of the municipal water service within the Yakima Railroad Area which would encourage immediate voluntary hookups by the residential and business property owners. The RECIPIENT will insure that all existing well disconnects are completed by sending a copy of the City Inspector's inspection report of the well disconnect to the property owner and the DEPARTMENT Project Officer. TASK 7 PROJECT COMPLETION The DEPARTMENT shall require the RECIPIENT to submit a final project report which contains the following information: • s A summary of the actual work performed and a certified statement for the actual dollar amount spent, from all fund sources, in completing the project as described. Certification that all costs associated with the project have been incurred. Costs are incurred when goods and services are received and/or contract work is performed. Copies of all approved closure reports form the Department of Revenue and the Department of Labor and Industries, certifying that all sales taxes have been paid and appropriate industrial and prevailing wages have been paid. Certification from HEALTH that the system is approved according to the final inspection/punch list, is functional, and is supplying city water to properties in the contaminated area. 5 of 10 Grant No. Ca 3 Db 1 I `1 Yakima Water System Remedial Action Agreement with the City of Yakima Record drawings of the completed work bearing the professional engineer that records all deviations and specifications. D. stamp of a from approved plans Construction certification form and record drawings submitted to HEALTH. TASK 8 CONTINGENCY Contingency monies shall be used only in the event of unanticipated costs directly related to Tasks 1 through 7 and is at the discretion of the DEPARTMENT Project Officer. The RECIPIENT shall send a letter to the DEPARTMENT Project Officer stating the justification to access these funds and under which task these monies will be spent. BUDGET Project Task 1. Project Design Engineering 2. Immediate Hookups 3. Project Management 4. Construction 5. Meter Sets 6. Water Hookups 7. Project Completion 8. Contingency (10%) SUBTOTAL Sales Tax (7.8%) TOTAL 6 of 10 Maximum Eligible Cost $352,712 54,250 235,141 2,155,408 697,500 488,250 116,176 232,353 $4,331,790 168,122 $4,499,912 Estimated Completion Date April 1993 April 1993 May May May May May May 1993 1995 1995 1995 1995 1995 Grant No. &9300111 Yakima Water System Remedial Action Agreement with the City of Yakima FUND SOURCE Total Eligible Project Cost $4,499,912 Fund aka #4d aunt:........ Local Toxics Control Account 100% $4,499,912 c: Cash Match or Interlocal Costs 0% $0 ADDITIONAL BUDGET CONDITIONS 1. Overhead is eligible, not to exceed 15 percent of the RECIPIENT salaries and benefits applied directly to the project. 2. The fiscal office will monitor expenditures at the task level. A letter amendment is required to redistribute costs among tasks. A formal amendment is required to increase state funding. 3. The maximum allowable amount from LTCA is $4,499,912. SPECIAL TERMS AND CONDITIONS A. MINORITY AND WOMEN'S BUSINESS PARTICIPATION The RECIPIENT agrees to utilize to the maximum extent possible, minority owned and women owned businesses in purchases and contracts initiated after the effective date of this agreement. In the absence of more stringent goals established by the RECIPIENT's jurisdiction, the RECIPIENT agrees to utilize the DEPARTMENT's goals for minority- and women -owned business participation in all bid packages, request for proposals, and purchase orders. These goals are expressed as a percentage of the total dollars available for the purchase or contract and are as follows: Minority-owned business participation - 10% Women -owned business participation - 6% The RECIPIENT and ALL prospective bidders or persons submitting qualifications shall take the following steps in any procurement initiated after the effective date of this agreement: 1. Include qualified minority and women's businesses on solicitation lists. 2. Ensure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. 7 of 10 Grant No. 3M11-1 Yakima Water System Remedial Action Agreement with the City of Yakima 3. Divide the total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by qualified minority and women's businesses. 4. Establish delivery schedules, where requirements permit, which will encourage participation of qualified minority and women's businesses. 5. Use the services and assistance of the State Office of Minority and Women's Business Enterprises and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. The RECIPIENT shall provide written certification, on a form provided by the DEPARTMENT that the above steps were/will be followed. The RECIPIENT shall report to the DEPARTMENT at the time of submitting each invoice, on forms provided by the DEPARTMENT, payments made to qualified firms. The report will address: 1. Name and Federal Tax Identification number of qualified firm receiving funds under the voucher, including any sub and/or sub -subcontractors. 2. The total dollar amount paid to qualified firms under this invoice. B. INTERLOCAL AGREEMENTS If parties other than the RECIPIENT are contributing to the local share of project costs, memoranda of understanding or other written agreements confirming the contribution must be negotiated. These agreements must specify exact work to be accomplished and be signed by all parties contributing to the local match of this project. Copies of these agreements shall be submitted to the DEPARTMENT. C. PROCUREMENT AND CONTRACTS 1. The RECIPIENT shall provide written certification that they will follow their standard procurement procedures and/or applicable state law in awarding contracts; RECIPIENTS with no formal procurement procedures will be required to certify that they have complied with the "Standards for Competitive Solicitation", found in the Administrative Requirements for Ecology Grants and Loans, WDOE 91-18 (March 1991). 2. The RECIPIENT shall submit all requests for qualifications (RFQ's), requests for proposals (RFP's), and bid documents relating to this grant agreement to the DEPARTMENT and the Department of Health (HEALTH). 3. The RECIPIENT shall submit a summary of proposals received, the recommended selection, and evidence of proper advertising or solicitation. 4. The RECIPIENT shall submit a copy of the contract to the DEPARTMENT. 8 of 10 Grant No. C-3001)7 Yakima Water System Remedial Action Agreement with the City of Yakima D. USE OF EXISTING CONTRACTS The RECIPIENT shall notify the DEPARTMENT if it is going to use contracts entered into prior to the execution of the grant agreement for performance of grant funded activities. The notice shall include a description of the procurement process used, certification by the RECIPIENT's signatory and legal counsel that all procurement requirements have been met, and a copy of the executed contract. E. ENGINEERING PLANS AND SPECIFICATIONS All engineering plans and specifications submitted for review shall be completed and stamped by an appropriate licensed professional engineer. The RECIPIENT shall certify that these design documents will provide for facilities conforming to requirements of all applicable federal, state, and local requirements, including evidence of SEPA compliance. Before construction may begin, final design of the project must be reviewed by the DEPARTMENT and HEALTH, and approved by HEALTH and all appropriate permits for the facilities obtained. F. SEPA COMPLIANCE To ensure that environmental values are considered by the state and local government officials when making decisions the RECIPIENT shall comply with the provisions of the State Environmental Policy Act (SEPA), Chapter 41.23C RCW, and the SEPA Rules, Chapter 197-11 WAC. Copies of the SEPA documents shall be sent to the DEPARTMENT's Environmental Review Section, the appropriate regional office, and the Waste Management Grants Section. G. WETLANDS PROTECTION To comply with the directive of Executive Order 90-04, Protection of Wetlands, all local governments are requested and encouraged to make all of their actions consistent with the intent of this executive order; specifically, (1) to avoid, to the extent possible, adverse impacts associated with the destruction or modification of wetlands, and (2) to avoid direct or indirect support of new construction in wetlands wherever there is a practical alternative. H. FAILURE TO COMMENCE WORK In the event the RECIPIENT fails to commence work on the project funded herein within six (6) months after the effective date of this grant, the DEPARTMENT reserves that right to terminate this grant. I. DOCUMENT SUBMITTALS Unless otherwise specified, at least two (2) copies of all documents prepared under this grant agreement shall be submitted by the RECIPIENT to the DEPARTMENT Project Officer. The DEPARTMENT Project Officer will forward one (1) copy to the appropriate regional office of the DEPARTMENT. 9 of 10 Grant No. (77 (1 J 0c1 r7 Yakima Water System Remedial Action Agreement with the City of Yakima J. GRANT PROJECT REPORTING Monthly progress reports shall be prepared by the RECIPIENT and submitted to the Project Officer of the DEPARTMENT. These reports shall include, but not be limited to the following information: 1) Information at the subtask level as appropriate. 2) Accomplishments for the reporting period. 3) Planned activities and schedule for the upcoming two months. L. ALL WRITINGS CONTAINED HEREIN This agreement, the appended "General Terms and Conditions", and the DEPARTMENT's "Administrative Requirements for Ecology Grants and Loans", WDOE 91-18 (March 1991), contains the entire understanding between the parties, and there are no other understandings or representatives except as those set forth or incorporated by reference herein. No subsequent modification(s) or amendment(s) of this grant agreement shall be of any force or effect unless in writing, signed by authorized representatives of the RECIPIENT and DEPARTMENT and made part of this agreement; EXCEPT a letter of amendment will suffice to redistribute the budget without increasing the total eligible project cost or change to the DEPARTMENT's Project Officer or the RECIPIENT's Project Coordinator or to extend the period of performance as set forth in the Grant Agreement. IN WITNESS WHEREOF, the parties hereby execute this Grant: STATE OF WASHINGTON DEPARTMENT OF ECOLOGY Narda Pierce Assistant Director Waste Management CITY OF YAKIMA Approved as to form only by Assistant Attorney General. Date Authorized ignature Date R. A. Zais,Jr. Print Name of Authorized Official City Manager Title ATTEST ,K6-4./LA.„„ Karen Roberts, City Clerk 10 of 10 CITY CONTRACT NO. 1>C r11r111t11 11111 E1C'O'L1O GrY Sworn Statement of Compliance with Minority- and Woman -owned Business Utilization Requirements Grantee CITY OF YAKIMA Grant Number G9300117 The undersigned, being first duly sworn, on oath, states on behalf of the GRANTEE as follows: The following affirmative steps in awarding contracts and subcontracts will be taken: 1. Include qualified minority, and women's business on solicitation lists; 2. Insure that qualified minority, and women's businesses are solicited whenever they are potential sources of services or supplies; 3. Divide the total requirements, when economically feasible into smaller tasks or quanti- ties to permit maximum participation by qualified minority, and women's business; 4. Establish delivery schedules, where requirements of the work permit, which will en- courage participation of qualified minonty and women's business; and 5. Use the services and assistance of the state Office of Minority and Woman Owned - Business, and the Office of Minority Business Enterprises of the U.S. Department of Commerce as appropriate. State of a% /i1/' County of Vpraig ,,(,, Subscribed andA swom to before me this ago t day of r� hr ,19 }SS ;b 10/20/92 Authorized Signature Date City Manager Title NOTARY PUBLIC in and for the State of Nl' P007'1 residing in d My commission expires . ,, /9'/J Signature of rotary GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements of the Department of Ecology A. RECIPIENT PERFORMANCE All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and RECIPIENT'S employees. The RECIPIENT shall not assign or subcontract performance to others unless specifically authorized in writing by the DEPARTMENT. B. SUBGRANTEE/CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement. C. THIRD PARTY BENEFICIARY The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of Washington is named as an express third -party beneficiary of such subcontracts with full rights as such. D. CONTRACTING FOR SERVICES (BIDDING) Contracts for construction, purchase of equipment and professional architectural and engineering services shall be awarded through a competitive process, if required by State law. The RECIPIENT shall not advertise for bids for construction until receipt of written approval from the DEPARTMENT. No contract shall be awarded or rejected until approved in writing by the DEPARTMENT. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the DEPARTMENT. E. ASSIGNMENTS No right or claim of the RECIPIENT arising under this agreement shall be transferred or assigned by the RECIPIENT. F. COMPLIANCE WITH ALL LAWS 1. The RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders, regulations and permits. Prior to commencement of any construction, the RECIPIENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that all approvals and permits have been secured, and make copies available to the DEPARTMENT upon request. 2. Discrimination. The DEPARTMENT and the RECIPIENT agree to be bound by all Federal and State laws, regulations, and policies against discrimination. The RECIPIENT further agrees to affirmatively support the program of the Office of Minority and Women's Business Enterprises to the maximum extent possible. The RECIPIENT shall report to the DEPARTMENT the percent of grant/loan funds available to women or minority owned businesses. 3. Wages And Job Safety. The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety. 4. Industrial Insurance. The RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the DEPARTMENT shall have the right to immediately terminate this agreement for cause as provided in Section K.1, herein. G. KICKBACKS The RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this project to give up any part of the compensation to which he/she is otherwise entitled or, receive any fee, commission or gift in return for award of a subcontract hereunder. H. AUDITS AND INSPECTIONS 1. The RECIPIENT shall maintain complete program and financial records relating to this agreement. Such records shall clearly indicate total receipts and expenditures by fund source and task or object. All grant/loan records shall be kept in a manner which provides an audit trail for all expenditures. All records shall be kept in a common file to facilitate audits and inspections. Engineering documentation and field inspection reports of all construction work accomplished under this agreement shall be maintained by the RECIPIENT. 2. All grant/loan records shall be open for audit or inspection by the DEPARTMENT or by any duly authorized audit representative of the State of Washington for a period of at least three years after the final grant payment/loan repayment or any dispute resolution hereunder. If any such audits identify discrepancies in the financial records, the RECIPIENT shall provide clarification and/or make adjustments accordingly. 3. All work performed under this agreement and any equipment purchased, shall be made available to the DEPARTMENT and to any authorized state, federal or local representative for inspection at any time during the course of this agreement and for at least three years following grant/loan termination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A-128 (Audit of State and Local Governments) or OMB Circular A-110 (Uniform Requirements for Grants to Universities, Hospitals and Other Non -Profit Organizations) if the RECIPIENT receives federal funds in excess of $25,000. The RECIPIENT must forward a copy of the state auditor's audit along with the RECIPIENT response and the final corrective action plan as approved by the SAO to the ]DEPARTMENT within ninety (90) days of the date of the audit report. I. PERFORMANCE REPORTING The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set forth in the Special Conditions. The RECIPIENT shall also report in writing to the DEPARTMENT any problems, delays or adverse conditions which will materially affect their ability to meet project objectives or time schedules. This disclosure shall be accompanied by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT to resolve the situation. Payments may be withheld if required progress reports are not submitted. Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be due within twenty (20) days following the end of the quarter being reported. J. COMPENSATION 1. Method of compensation. Payment shall be made on a reimbursable basis at least quarterly ,and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by the DEPARTMENT along with documentation of the expenses. Payments shall be made for each task/phase of the project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and certified as satisfactory by the Project Officer. The payment request form and supportivedocuments must itemize all allowable costs by major elements as described in the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for Ecology Grants and Loans", part IV, published by the DEPARTMENT. A copy of this document shall be furnished to the RECIPIENT. When payment requests are approved by the DEPARTMENT, payments will be made to the mutually agreed upon designee. Payment requests shall be submitted to the DEPARTMENT and directed to the Project Officer assigned to administer this agreement. 2. Budget deviation. Deviations in budget amounts are not allowed without written amendment(s) to this agreement. Payment requests will be disallowed when the RECIPIENT's request for reimbursement exceeds the State maximum share amount for that element, as described in the Scope of Work. 3. Period of Compensation. Payments shall only be made for action of the RECIPIENT pursuant to the grant/loan agreement and performed after the effective date and prior to the expiration date of this agreement, unless those dates are specifically modified in writing as provided herein. 4. Final Requests) for Payment„ The RECIPIENT must submit final requests for compensation within forty-five(45) days after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply may result in delayed reimbursement. 5. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten percent (10%) of each reimbursement payment as security for the RECIPIENT's performance and a financial bond. Monies withheld by the DEPARTMEENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been completed if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this agreement and, as appropriate, upon completion of an audit as specified under section 3.6.,, herein. 6. Unauthorized Expenditures. All payments to the RECIPIENT shall be subject to final audit by the DEPARTMENT and any unauthorized expenditure(s) charged to this grant/loan shall be refunded to the DEPARTMENT by the RECIPIENT. 7. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities, it shall not exceed the amount allowed under state law. 8. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work hereunder. K. TERMINATION 1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to perform any obligation required of it by this agreement, the DEPARTMENT may refuse to pay any further funds thereunder and/or terminate this agreement by giving written notice of termination. A written notice of termination shall be given at Least five working days prior to the effective date of termination. In that event, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, and reports or other materials prepared by the RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become Department property and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Despite the above, the RECIPIENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by the DEPARTMENT and/or the State of Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT may withhold payments for the purpose of setoff until such time as the exact amount of damages due the DEPARTMENT from the RECIPIENT is determined. 2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and federal funds through legislative appropriation and state allotment. When this agreement crosses over state fi Al years the obligation of the DEPARTMENT is contingent upon the appropriation of funds during the next fiscal year. The failure to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above. When this agreement crosses the RECIPIENT's fiscal year, the obligation of the RECIPIENT to continue or complete the project described herein shall be contingent upon appropriation of funds by the RECIPIENT's governing body; Provided, however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of ALL funds paid to the RECIPIENT in accordance with Section N herein. 3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project funded herein within four months after the effective date of this agreement, or by any date mutually agreed upon in writing for commencement of work, the DEPARTMENT reserves the right to terminate this agreement. L. WAIVER M. `s Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of any provision of this agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement unless stated as such in writing by the authorized representative of the DEPARTMENT. PROPERTY RIGHTS 1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property, the RECIPIENT may copyright or patent the same but the DEPARTMENT retains a royalty -free, nonexclusive and irrevocable license to reproduce, publish, recover or otherwise use the material(s) or property and to authorize others to use the same for federal, state or local government purposes. Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any inventions that developed by the RECIPIENT as provided in 35 U.S.C. 200-212. 2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of the DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3. Tangible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Ecology Grants and Loans", Part W, shall control the use and disposition of all real and personal property purchased wholly or in part with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the contrary or upon specific instructions with respect thereto in the Scope of Work. 4. Personal Property Furnished by the DEPARTMENT. When the DEPARTMENT provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to final payment by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. 5. Acquisition Protects. The following provisions shall apply if the project covered by this agreement includes funds for the acquisition of land or facilities: a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of land/or facilities is fair and reasonable. b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this agreement. Such evidence may include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions establishing that the land is free from any impediment, lien, or claim which would impair the uses contemplated by this agreement. 6. Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time convert any equipment, property or facility acquired or developed pursuant to this agreement to uses other than those for which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other conversion or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction costs of such property. N. RECOVERY OF PAYMENTS TO RECIPIENT The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance of this agreement including the satisfactory completion of the project described in the Scope of Work. In the event the RECIPIENT fails, for any reason, to perform obligations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the RECIPIENT for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform. Interest shall accrue at the rate of twelve percent (12%) per annum from the time the DEPARTMENT demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of such property. O. PROJECT APPROVAL 'The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project Officer or other designated official to whom the RECIPIENT shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Officer or other designated official as to the extent and character of the work to be done shall govern. The RECIPIENT shall have the right to appeal decisions as provided for below. P. DISPUTES Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is not disposed of in writing shall be decided by the Project Officer or other designated official who shall provide a written statement of decision to the RECIPIENT. The decision of the Project Officer or other designated official shall be final and conclusive unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director of the DEPARTMENT a written appeal. In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such appeals shall be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the performance of this agreement and in accordance with the decision rendered. Q. CONFLICT OF INTEREST No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the review, approval, or carrying out of this agreement, shall participate in any decision which affects his/her personal interest or the interest of any corporation, partnership or association in which he/she is, directly or indirectly interested; nor shall he/she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. R. INDEMNIFICATION 1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the Scope of Work. 2. To the extent that the Constitution and laws of the State of Washington permit, each party shall indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this agreement. S. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington. T. SEVERABILITY If any provision of this agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this agreement which can be given effect without the invalid provision, and to this end the provisions of this agreement are declared to be severable. U. PRECEDENCE In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) applicable Federal and State statutes and regulations; (b) Scope of Work; (c) Special Terms and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for Ecology Grants and Loans"; and (e) the General Terms and Conditions. SS -010 Rev. 3/91