Loading...
HomeMy WebLinkAbout000851 Original Contract City of Port Angeles Agreement No: WQC-2015-PorAngPW-00175 Record # 000851 Page I of37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES DEPARTMENT OF E C 0 LL"w")G Y State of Washington Agreement WQC-2015-PorAngPW-00175 Water Quality Combined Financial Assistance AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND CITY OF PORT ANGELES This is a binding Agreement entered into by and between the State of Washington,Department of Ecology, hereinafter referred to as"ECOLOGY„and CITY OF PORT ANGELES,hereinafter referred to as the"RECIPIENT" to carry out with the provided funds activities described herein. GENERAL INFORMATION Project Title: Port Angeles CSO Phase 2 Total Cost: $19,024,050.00 Total Eligible Cost: $12,000,000.00 Ecology Share: $12,000,000.00 Recipient Share: $0.00 The Effective Date of this Agreement is: 07/01/2014 The Expiration Date of this Agreement is no later than 12/31/2016 Project Type: Wastewater Facility Project Short Description: The Port Angeles Combined Sewer Overflow(CSO)Phase 2 project includes replacement of the City's existing Pump Station 4,construction of a gravity diversion sewer(Front Street Diversion Sewer,completion of the new HDPE force mains partially constructed in the CSO Phase 1 project,and a new influent sewer to divert flows from the existing Pump Station 4 to the replacement pump station located directly across Marine Drive. Project Long Description: The Combined Sewer Overflow(CSO)Phase 2 project is the second and final phase of the City of Port Angeles' CSO reduction plan(CSO Plan). The goal of the CSO Plan and all of the projects identified in it is to reduce combined sewer overflows in Port Angeles,in compliance with Agreed Order 3853 issued by Washington State Department of Ecology(Ecology)on October 19,2006. The CSO reduction program, as described in the Ecology-approved 2006 CSO Reduction Facilities Plan as amended in 2007,2010 and 2012,reduces overflows by increasing conveyance capacities, increasing plant capacities,adding W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 2 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES storage for peak flow control,and providing facilities that transfer peak flows to storage and return them to the plant. CSO Phase I project is currently under construction,on time and on budget.Phase 1 design and construction costs total about$24.4 M, and were funded in part by a$1 OM SRF loan and 4 PWTF loans totaling$23.35M. The CSO Phase 2 project is scheduled to begin construction when funding is secured.Design and construction is expected to cost about$19M,and the City is seeking$12M in SRF loans in order to put the project out to bid.Remaining costs will be paid from Wastewater Utility rates. The Phase 2 project includes replacement of the City's existing Pump Station 4 with a new station with a capacity of 28 million gallons per day(mgd),construction of a gravity diversion sewer(Front Street Diversion Sewer)to convey flow directly from the location of CSO outfall#008 to the new pump station,completion of the new HDPE force mains partially constructed in the CSO Phase 1 project,and a new influent sewer to divert flows from the existing Pump Station 4 to the replacement pump station located directly across Marine Drive. Also included are various pump station site improvements, including new Green Stormwater Infrastructure(raingardens and pervious sidewalk) and roadway restoration. See attached Figure I for project location and site map. The existing pump station has experienced power failures resulting in sewage spills. The new pump station will incorporate redundant systems and storage to reduce the risk of an overflow.The new pump station will include installation of stand-by diesel-powered emergency generator contained in a sound enclosure„an odor control system(including a 10-foot tall carbon vessel)located behind screen walls,sewage pumps,electrical and mechanical equipment,and discharge piping and valve system.The back-up power generator will provide power to the pump station in the event that the facility's primary power source fails.The odor control system will reduce wastewater related odors in the vicinity of the pump station.The new pump station building will include equipment and motors on the ground floor with pumps and other equipment located below-grade.The pump station plan layout and an architectural rendering are shown on Figure 2. The new sewer lines will be constructed using conventional open-cut construction methods with temporary shoring. The new gravity diversion sewer pipeline will include the installation of approximately 2,470 feet of 30-inch-diameter pipe along North Lincoln Street(from West 1 st Street intersection)and West Front Street, approximately 30-feet of 30-inch-diameter pipe from the existing sanitary sewer to the new diversion sewer,and approximately 30 feet of 42-inch-diameter pipe from the existing to the new pump station at Marine Drive and South Valley Street.The final segments of the Phase 1 force mains(including two 14-inch-diameter and one 30-inch-diameter pipelines)will be laid in approximately 900 feet of trench along the north side of West Front Street between Oak Street and the new pump station. After construction of the CSO projects is complete(Phase 1 and Phase 2)and performance of the CSO reduction system is verified,the City anticipates eliminating two outfall locations,CSO 08 and CSO 07. Overall Goal: The project will bring Port Angeles into compliance with Agreed Order 3853.Of the four uncontrolled CSO outfalls,three discharge into Port Angeles Harbor,and one discharges into a creek that flows into the Harbor. The average annual CSO discharge is 27.3 MG,which occurs over an average of 76 separate events per year(2003-2012 data). Completion of the CSO control program will reduce annual discharges to less than 5-MG and annual events to about 1.2 per year.The Phase 1 and Phase 2 improvements reduce deposition of inorganic and organic compounds into the harbor and improve water quality for both people and wildlife by reducing the frequency of CSO discharges. Phase 2 reduces CSOs to the downtown waterfront to once per 5 years at most, discharges most overflows to the refurbished deep-water outfall nearly once per year,and eliminates two existing outfalls(CSO 08 to Peabody Creek and CSO 07 direct to marine shoreline). WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 3 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES RECIPIENT INFORMATION Organization Name: CITY OF PORT ANGELES Federal Tax ID: 91-6001266 DUNS Number: 148344047 Mailing Address: 321 East Fifth Street-PO Box 1150 Port Angeles, WA, 98362-0217 Physical Address: 321 East 5th Street Port Angeles, Washington, 98362-0217 Organization Email: kneal @cityofpa.us Contacts Project Manager Kathryn Neal Engineering Manager PO Box 1150 321 East Fifth St Port Angeles,Washington, 98362-0217 Email: kneal @cityofpa.us Phone: (360)417-4821 Billing Contact Therese Agesson Sr.Accountant 321 East Fifth Street PO Box 1150 Port Angeles, Washington, 9 83 62 Email: tagesson @cityofpa.us Phone: (360)417-4615 Authorized Daniel K McKeen Signatory City Manager 321 East 5th Street Port Angeles, Washington, 98362 Email: dmckeen @cityofpa.us Phone: (360)417-4501 W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 4 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES ECOLOGY INFORMATION Mailing Address: Department of Ecology Water Quality PO BOX 47600 Olympia, WA 98504-7600 Physical Address: Water Quality 300 Desmond Drive Lacey, WA 98503 Contacts Project Dave Dougherty Manager P.O Box 47775 Olympia, Washington, 98504-7775 Email: ddou461@ecy.wa.gov Phone: (360)407-6278 Financial Bill Hashim Manager P.O.Box 47600 Olympia,Washington,98504-7600 Email: bhas461 @ecy.wa.gov Phone: (360)407-6549 W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 5 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES RECIPIENT agrees to furnish the necessary personnel, equipment, materials, services, and otherwise do all things necessary for or incidental to the performance of work as set forth in the Scope of Work. RECIPIENT agrees to read, understand, and accept all information contained within this entire Agreement. Furthermore, RECIPIENT acknowledges that they have reviewed the terms and conditions of this Agreement, Scope of Work, attachments, all incorporated or referenced documents, as well as all applicable laws, statutes, rules, regulations, and guidelines mentioned in this Agreement. This Agreement contains the entire understanding between the parties, and there are no other understandings or representations other than as set forth,or incorporated by reference,herein. This Agreement shall be subject to the written approval of Ecology's authorized representative and shall not be binding until so approved. The signatories to this Agreement represent that they have the authority to execute this Agreement. IN WITNESS WHEREOF,the parties hereby sign this Agreement Washington State CITY OF PORT ANGELES Department of Ecology A�, (P ILI Program nager Date Daniel K McKeen Date Heather Bartlett City Manager Water Quality Date W QC-2015-PorAngPW-0017 5 Agreement No: WQC-2015-PorAngPW-00175 Page 6 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES SCOPE OF WORK Task Number: 1 Task Cost: $0.00 Task Title: Project Administration/Management Task Description: A. The RECIPIENT will administer the project. Responsibilities will include,but not be limited to: maintenance of project records;submittal of requests for reimbursement and corresponding backup documentation, progress reports and recipient closeout report(including photos); compliance with applicable procurement,contracting,and interlocal agreement requirements;application for,receipt of,and compliance with all required permits, licenses, easements,or property rights necessary for the project;and submittal of required performance items. B.The RECIPIENT must manage the project. Efforts will include: conducting,coordinating,and scheduling project activities and assuring quality control. Every effort will be made to maintain effective communication with the RECIPIENT's designees;ECOLOGY;all affected local,state,or federal jurisdictions;and any interested individuals or groups. The RECIPIENT must carry out this project in accordance with any completion dates outlined in this agreement. Task Goal Statement: Properly managed project that meets agreement and Ecology administrative requirements. Task Expected Outcome: * Timely and complete submittal of requests for reimbursement,quarterly progress reports and recipient closeout report. * Properly maintained project documentation Recipient Task Coordinator: Therese Agesson Project Administration/Management Deliverables Number Description Due Date 1.1 Progress Reports 1.2 Recipient Closeout Report 1.3 Project Outcome Summary Report WQC-2015-PorAngP W-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 7 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES SCOPE OF WORK Task Number: 2 Task Cost: $11,000,000.00 Task Title: Construction(low bid) Task Description: A. The RECIPIENT will include ECOLOGY's specification insert in the bid documents.The RECIPIENT will execute a contract with the low responsive responsible bidder to construct the PROJECT. The RECIPIENT must submit Bid Tabs,the Notice of Award,and a copy of the executed contract before ECOLOGY will provide reimbursement for work performed under this task. B. The RECIPIENT will complete the construction in accordance with the approved Plans and Specifications. The construction project will include: 1. 28 MGD pump station. 2. Three parallel HDPE force mains to connect with pipelines constructed in CSO Phase 1. 3. Front Street Diversion Sewer to eliminate CSO 8. 4. Gravity sewer connecting existing Pump Station 4 influent pipes to the new pump station. 5. Various pump station site improvements,including new green stormwater infrastructure. C. The RECIPIENT will conduct a pre-construction conference and invite ECOLOGY staff. D. The RECIPIENT will obtain an investment grade efficiency audit(IGEA)for projects involving repair, replacement,or improvement of a wastewater treatment facility or other public works facility. The IGEA must include an analysis of potential energy and water efficiency measures and identify cost-effective measures for the RECIPIENT' s facility. E. The RECIPIENT will negotiate all change orders to the construction contract necessary for successful completion of the PROJECT. The RECIPIENT will submit the change orders to ECOLOGY for approval. Change orders that are a significant deviation from the approved plans/specifications must be submitted for approval,prior to execution. All other change orders must be submitted within 30 days after execution. Task Goal Statement: Task Expected Outcome: WQC-2015-PorAngPW-00175 i Agreement No: WQC-2015-PorAngPW-00175 Page 8 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Construction(low bid) Deliverables Number Description Due Date 2.1 Minutes of pre-construction meeting. 2.2 Copy of advertisement for bids and the affidavit of publication. 2.3 Bid tabs,the notice of award,and a copy of the executed construction contract. 2.4 Copy of the notice to proceed. 2.5 Investment Grade Efficiency Audit documentation. WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 9 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES SCOPE OF WORK Task Number: 3 Task Cost: $1,000,000.00 Task Title: Construction Management and Engineering Task Description: A. The RECIPIENT will provide adequate and competent construction management and inspection for the PROJECT. This may involve the procuring of professional services.If professional services are procured, the RECIPIENT will procure them in accordance with state law. The RECIPIENT must submit all contracts for construction management services before ECOLOGY will provide reimbursement for work performed under this task. B. The RECIPIENT will develop a detailed Construction Quality Assurance Plan(WAC 173-240-075)and submit it to ECOLOGY for approval.This plan must describe the activities which the RECIPIENT will undertake to achieve adequate and competent oversight of all construction work. C. The RECIPIENT will ensure construction progresses according to a timely schedule developed to meet completion dates indicated in the construction contract. The RECIPIENT will revise or update the schedule whenever major changes occur and resubmit to ECOLOGY. In the absence of any major changes, the RECIPIENT will describe progress of the construction in the quarterly progress reports. D. Upon completion of construction,the RECIPIENT will provide ECOLOGY's Project Manager with a set of "as-built"plans(i.e.,record construction drawings which reflect changes,modifications, or other significant revisions made to the project during construction). E. Upon project completion,the RECIPIENT will submit the Declaration of Construction Completion form to ECOLOGY in accordance with WAC 173-240-090. The form,when signed by a professional engineer, indicates that the project was completed in accordance with the plans and specifications and major change orders approved by the ECOLOGY,and is accurately shown on the as-built plans. Task Goal Statement: Task Expected Outcome: Recipient Task Coordinator: James Burke W Q C-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 10 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Construction Management and Engineering Deliverables Number Description Due Date 3.1 Executed contract for construction management services. 3.2 Documentation of the RECIPIENT'S process for procuring engineering services. 3.3 Construction Quality Assurance Plan. 3.4 Record Drawings(as-builts). 3.5 Declaration of Construction Completion. WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page I 1 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES BUDGET Funding Distribution EL150038 Funding Title: SRF Loan Funding Type: loan Funding Expiration Date: 12/31/2016 Funding Effective Date: 07/01/2014 Funding Source: Title: CWSRF- SFY15 Type: Federal CFDA: 66.458 Assistance Agreement: Description: The Clean Water Act(CWA)(33 U.S.C. §1251-1387)established the State Revolving Fund(SRF)low interest loan program(40.C.F.R.Part 31,35 Sub Part K). Funds come from a combination of Federal Capitalization Grant provided through the Environmental Protection Agency(EPA),state match,and revolved funds from repayments and interest on previous loans. Recipient Match%: 0 InKind Interlocal Allowed: No InKind Other Allowed: No Is this Funding Distribution used to match a federal grant? No Effective Interest Rate: 2.7% Interest Rate: 1.7% Admin Charge: 1% Terms: 20 years Project Start Date: 07/01/2014 Project Completion Date: 12/31/2016 Estimated Initiation of Operation date: 10/31/2016 Loan Security: Revenue Secure Lien Obligation of the Recipient Final Accrued Interest: $ Final Loan Amount: $ Repayment Schedule Number: 2068 SRF Loan Task Total Project Administration/Management $ 0.00 Construction(low bid) $ 11,000,000.0 Construction Management and Engineering $ 1,000,000.00 Total: $ 12,000,000.0 W QC-2015-PorAngPW-0017 5 Agreement No: WQC-2015-PorAngPW-00175 Page 12 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Funding Distribution Summary Recipient/Ecology Share Funding Distribution Name Recipient Match % Recipient Share Ecology Share Total SRF Loan 0.00 % $ 0.00 $ 12,000,000.00 $ 12,000,000.0 Total $ 0.00 $ 12,000,000.00 $ 12.000.000.0 AGREEMENT SPECIFIC TERMS AND CONDITIONS N/A SPECIAL TERMS AND CONDITIONS SECTION 1: DEFINITIONS Unless otherwise provided,the following terms will have the respective meanings for all purposes of this agreement: "Administration Charge„means a charge established in accordance with Chapter 90.50A RCW and Chapter 173-98 WAC,to be used to pay Ecology's cost to administer the State Revolving Fund by placing a percentage of the interest earned in an Administrative Charge Account. "Administrative Requirements„means the effective edition of ECOLOGY's ADMINISTRATIVE REQUIREMENTS FOR RECIPIENTS OF ECOLOGY GRANTS AND LOANS at the signing of this agreement. "Annual Debt Service„for any calendar year means for any applicable bonds or loans including the loan,all interest plus all principal due on such bonds or loans in such year. "Average Annual Debt Service„means,at the time of calculation,the sum of the Annual Debt Service for the remaining years of the loan to the last scheduled maturity of the loan divided by the number of those years. "Centennial Clean Water Program„means the state program funded from various state sources. "Contract Documents„means the contract between the RECIPIENT and the construction contractor for construction of the project. "Cost Effective Analysis„means a comparison of the relative cost-efficiencies of two or more potential ways of solving a water quality problem as described in Chapter 173-98-730 WAC. "Defease„or"Defeasance„means the setting aside in escrow or other special fund or account of sufficient investments and money dedicated to pay all principal of and interest on all or a portion of an obligation as it comes due. "Effective Date„means the earliest date on which eligible costs may be incurred. "Effective Interest Rate„means the total interest rate established by Ecology that includes the Administrative Charge. "Estimated Loan Amount„means the initial amount of funds loaned to the RECIPIENT. W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 13 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES "Estimated Loan Repayment Schedule„means the schedule of loan repayments over the term of the loan based on the Estimated Loan Amount. "Final Accrued Interest„means the interest accrued beginning with the first disbursement of funds to the RECIPIENT through such time as the loan is officially closed out and a final loan repayment schedule is issued. "Final Loan Amount„means all principal of and interest on the loan from the Project Start Date through the Project Completion Date. "Final Loan Repayment Schedule„means the schedule of loan repayments over the term of the loan based on the Final Loan Amount. "Forgivable Principal„means the portion of a loan that is not required to be paid back by the borrower. "General Obligation Debt„means an obligation of the RECIPIENT secured by annual ad valorem taxes levied by the RECIPIENT and by the full faith,credit,and resources of the RECIPIENT. "General Obligation Payable from Special Assessments Debt„means an obligation of the RECIPIENT secured by a valid general obligation of the Recipient payable from special assessments to be imposed within the constitutional and statutory tax limitations provided by law without a vote of the electors of the RECIPIENT on all of the taxable property within the boundaries of the RECIPIENT. "Gross Revenue„means all of the earnings and revenues received by the RECIPIENT from the maintenance and operation of the Utility and all earnings from the investment of money on deposit in the Loan Fund,except(i)Utility Local Improvement Districts(ULID)Assessments,(ii)government grants,(iii)RECIPIENT taxes,(iv)principal proceeds of bonds and other obligations,or(v)earnings or proceeds(A) from any investments in a trust,Defeasance,or escrow fund created to Defease or refund Utility obligations or(B)in an obligation redemption fund or account other than the Loan Fund until commingled with other earnings and revenues of the Utility or(C)held in a special account for the purpose of paying a rebate to the United States Government under the Internal Revenue Code. "Guidelines„means the ECOLOGY's Funding Guidelines that that correlate to the State Fiscal Year in which the project is funded. "Initiation of Operation Date„means the actual date the Water Pollution Control Facility financed with proceeds of the loan begins to operate for its intended purpose. "Loan„means the Washington State Water Pollution Control Revolving Fund Loan or Centennial Clean Water Fund (Centennial)Loan made pursuant to this loan agreement. "Loan Amount„means either an Estimated Loan Amount or a Final Loan Amount,as applicable. "Loan Fund„means the special fund of that name created by ordinance or resolution of the RECIPIENT for the repayment of the principal of and interest on the loan. "Loan Security„means the mechanism by which the RECIPIENT pledges to repay the loan. "Loan Term„means the repayment period of the loan. "Maintenance and Operation Expense„means all reasonable expenses incurred by the RECIPIENT in causing the WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 14 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Utility to be operated and maintained in good repair,working order, and condition including payments to other parties, but will not include any depreciation or RECIPIENT levied taxes or payments to the RECIPIENT in lieu of taxes. "Net Revenue„means the Gross Revenue less the Maintenance and Operation Expense. "Principal and Interest Account„means,for a loan that constitutes Revenue-Secured Debt,the account of that name created in the loan fund to be first used to repay the principal of and interest on the loan. "Project„means the project described in this agreement. "Project Completion Date„means the date specified in the agreement on which the Scope of Work will be fully completed. "Project Schedule„means that schedule for the project specified in the agreement. "Reserve Account„means,for a loan that constitutes Revenue-Secured Debt,the account of that name created in the loan fund to secure the payment of the principal of and interest on the loan. "Revenue-Secured Debt„means an obligation of the RECIPIENT secured by a pledge of the revenue of a utility and one not a general obligation of the RECIPIENT. "Risk-Based Determination„means an approach to sub-recipient monitoring and oversight based on risk factors associated to a RECIPIENT or project. "Scope of Work„means the tasks and activities constituting the project. "Section 319„means the section of the Clean Water Act that provides funding to address nonpoint sources of water pollution. "Senior Lien Obligations„means all revenue bonds and other obligations of the RECIPIENT outstanding on the date of execution of this loan agreement(or subsequently issued on a parity therewith, including refunding obligations)or issued after the date of execution of this loan agreement having a claim or lien on the Gross Revenue of the Utility prior and superior to the claim or lien of the loan,subject only to Maintenance and Operation Expense. "State Water Pollution Control Revolving Fund(Revolving Fund)„means the water pollution control revolving fund established by Chapter 90.50A.020 RCW. "Termination Date„means the effective date of ECOLOGY's termination of the agreement. "Termination Payment Date„means the date on which the RECIPIENT is required to repay to ECOLOGY any outstanding balance of the loan and all accrued interest. "Total Eligible Project Cost„means the sum of all costs associated with a water quality project that have been determined to be eligible for ECOLOGY grant or loan funding. "Total Project Cost„means the sum of all costs associated with a water quality project,including costs that are not eligible for ECOLOGY grant or loan funding. "ULID„means any utility local improvement district of the RECIPIENT created for the acquisition or construction of WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 15 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES additions to and extensions and betterments of the Utility. "ULID Assessments„means all assessments levied and collected in any ULID. Such assessments are pledged to be paid into the Loan Fund(less any prepaid assessments permitted by law to be paid into a construction fund or account). ULID Assessments will include principal installments and any interest or penalties which may be due. "Utility„means the sewer system, stormwater system, or the combined water and sewer system of the RECIPIENT,the Net Revenue of which is pledged to pay and secure the loan. SECTION 2: THE FOLLOWING CONDITIONS APPLY TO ALL RECIPIENTS OF WATER QUALITY COMBINED FINANCIAL ASSISTANCE FUNDING. A. Architectural and Engineering Services: The RECIPIENT certifies by signing this agreement that the requirements of Chapter 39.80 RCW, "Contracts for Architectural and Engineering Services,,,have been, or shall be,met in procuring qualified architectural/engineering services. The RECIPIENT shall identify and separate eligible and ineligible costs in the final negotiated agreement and submit a copy of the agreement to ECOLOGY. B. Cultural and Historic Resources Protection: The RECIPIENT must comply with all requirements listed in Section 106 of the National Historic Preservation Act(for federally funded projects)or Executive Order 05-05 (for state funded projects)prior to implementing any project that involves soil disturbing activities. A soil disturbing activity includes but is not limited to planting vegetation,installing fence posts, sloping stream banks,channel modifications, geotechnical test borings, and other construction projects. For more details regarding these requirements,please reference the Water Quality Financial Assistance Funding Guidelines available on ECOLOGY's Water Quality Program funding website. C. Equipment Purchase: Equipment not included in the scope of work or a construction plan and specification approval must be pre-approved by ECOLOGY's project manager before purchase. D.Funding Recognition: The RECIPIENT must inform the public about ECOLOGY or EPA funding participation in this project through the use of project signs,acknowledgement in published materials,reports,the news media, websites,or other public announcements. Projects addressing site-specific locations must utilize appropriately sized and weather-resistant signs. Sign logos are available from ECOLOGY's financial manager upon request. E. Growth Management Planning: The RECIPIENT certifies by signing this agreement that it is in compliance with the requirements of Chapter 36.70A RCW, "Growth Management Planning by Selected Counties and Cities.,, If the status of compliance changes, either through RECIPIENT or legislative action,the RECIPIENT shall notify ECOLOGY in writing of this change within 30 days. F.Interlocal: The RECIPIENT certifies by signing this agreement that all negotiated interlocal agreements necessary for the project are,or shall be,consistent with the terms of this agreement and Chapter 39.34 RCW,"Interlocal Cooperation Act.,, The RECIPIENT shall submit a copy of each interlocal agreement necessary for the project to ECOLOGY. G.Post Project Assessment Survey:The RECIPIENT agrees to participate in a brief survey regarding the key project results or water quality project outcomes and the status of long-term environmental results or goals from the project approximately three years after project completion. A representative from ECOLOGY's Water Quality Program may contact the RECIPIENT to request this data. ECOLOGY may also conduct site interviews and inspections,and may otherwise evaluate the project,as part of this assessment. W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 16 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES SECTION 3: THE FOLLOWING CONDITIONS APPLY TO NONPOINT ACTIVITY PROJECTS ONLY A. Technical Assistance:Technical assistance for agriculture activities provided under the terms of this agreement will be consistent with the current U.S.Natural Resource Conservation Service("NRCS„)Field Office Technical Guide for Washington State. However,ECOLOGY may accept as eligible technical assistance,proposed practices,or project designs that do not meet these standards if approved in writing by the NRCS and ECOLOGY. B. Project Status Evaluation: ECOLOGY will evaluate the status of this project 18 months from the effective date of this agreement. ECOLOGY's Project Manager and Financial Manager will meet with the RECIPIENT to review spending trends,completion of outcome measures,and overall project administration and performance. If the RECIPIENT fails to make satisfactory progress toward achieving project outcomes,ECOLOGY may change the scope of work,reduce grant funds,or increase oversight measures. C.Best Management Practices(BMP)Implementation: If the RECIPIENT installs BMPs that are not approved by ECOLOGY prior to installation,the RECIPIENT assumes the risk that part or all of the reimbursement for that activity may be delayed or ineligible. For more details regarding BMP Implementation,please reference the Water Quality Financial Assistance Funding Guidelines available on ECOLOGY's Water Quality Program funding website. SECTION 4: THE FOLLOWING CONDITIONS APPLY TO CENTENNIAL CLEAN WATER FUNDED PROJECTS BEING USED TO MATCH SECTION 319 FUNDS ONLY. A.Centennial-Funded Projects Used to Match Section 319-Funded Projects: Projects used by ECOLOGY to meet a matching requirement for the Section 319 program require the RECIPIENT to comply with Federal Section 319 reporting requirements. Required reporting includes providing project data on BMP implementation and annual pollutant load reduction. B. Section 319 Reporting Requirements: The RECIPIENT must complete ECOLOGY's"Clean Water Act Section 319 Initial Data Reporting Sheet.,, The RECIPIENT must submit this form to ECOLOGY's Financial Manager with the signed agreement. The form is available on ECOLOGY's Water Quality Program funding website. C.The RECIPIENT must complete ECOLOGY's"Federal Clean Water Act Section 319 Grant Load Reductions Reporting Form„annually. This form is used to gather information on pollutant load reduction for each best management practice(BMP)installed for the project. The RECIPIENT must submit this form to ECOLOGY's Financial Manager by January 15 of each year, and at project close-out. ECOLOGY may hold reimbursements until the RECIPIENT has completed and submitted the form to the financial manager. This form is available on our website. SECTION 5: THE FOLLOWING CONDITIONS APPLY TO SECTION 319 FUNDED PROJECTS ONLY. The RECIPIENT must submit the following documents to ECOLOGY before this agreement is signed by ECOLOGY: 1.Federal Funding Accountability and Transparency Act (FFATA)Form 2. Clean Water Act Section 319 Initial Data Reporting Sheet Contact your ECOLOGY financial manager for the forms. A.Disadvantaged Business Enterprise(DBE): GENERAL COMPLIANCE,40 CFR,Part 33 -The RECIPIENT agrees to comply with the requirements of EPA's W QC-2015-PorAngP W-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 17 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Program for Utilization of Small,Minority and Women's Business Enterprises(MBE/WBE)in procurement under assistance agreements,contained in 40 CFR,Part 33. FAIR SHARE OBJECTIVES,40 CFR,Part 33, Subpart D-A RECIPIENT must negotiate with the appropriate EPA award official or his/her designee, fair share objectives for MBE and WBE participation in procurement under the financial assistance agreements. Current Fair Share Objective/Goal-The dollar amount of this assistance agreement is over$250,000;or the total dollar amount of all of the RECIPIENT's non-TAG assistance agreements from EPA in the current fiscal year is over $250,000. The Washington State Department of Ecology has negotiated the following,applicable MBE/WBE fair share objectives/goals with EPA as follows: MBE: SUPPLIES 8.00%;SERVICES 10.00%;EQUIPMENT 8.00%;CONSTRUCTION 10.00% WBE: SUPPLIES 4.00%; SERVICES 4.00%;EQUIPMENT 4.00%;CONSTRUCTION 6.00% Negotiating Fair Share Objectives/Goals,40 CFR, Section 33.404-If the RECIPIENT has not yet negotiated its MBE/WBE fair share objectives/goals,the RECIPIENT agrees to submit proposed MBE/WBE objectives/goals based on an availability analysis,or disparity study, of qualified MBEs and WBEs in their relevant geographic buying market for construction, services,supplies and equipment. The RECIPIENT agrees to submit proposed fair share objectives/goals,together with the supporting availability analysis or disparity study,to the Regional MBE/WBE Coordinator within 120 days of its acceptance of the financial assistance award. EPA shall respond to the proposed fair share objective/goals within 30 days of receiving the submission. If proposed fair share objective/goals are not received within the 120 day time frame,the recipient may not expend its EPA funds for procurements until the proposed fair share objective/goals are submitted. SIX GOOD FAITH EFFORTS,40 CFR,Part 33, Subpart C-Pursuant to 40 CFR, Section 33.301,the RECIPIENT agrees to make the following good faith efforts whenever procuring construction,equipment,services and supplies under an EPA financial assistance agreement,and to ensure that sub-recipients,loan recipients,and prime contractors also comply. Records documenting compliance with the six good faith efforts shall be retained: (a)Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State,Local and Government recipients,this shall include placing DBEs on solicitation lists and soliciting them whenever they are potential sources. (b)Make information on forthcoming opportunities available to DBEs and arrange time frames for contracts and establish delivery schedules,where the requirements permit,in a way that encourages and facilitates participation by DBEs in the competitive process.This includes,whenever possible,posting solicitations for bids or proposals for a minimum of 30 calendar days before the bid or proposal closing date. (c)Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs.For Indian Tribal, State and Local Government recipients,this shall include dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum participation by DBEs in the competitive process. (d)Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually. (e)Use the services and assistance of the SBA and the Minority Business Development Agency of the Department of Commerce. WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 18 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES (f)If the prime contractor awards subcontracts,require the prime contractor to take the steps in paragraphs(a)through (e)of this section. B.Funding Recognition: The RECIPIENT must use the following paragraph in all reports,documents,and signage developed under this agreement: This project has been funded wholly or in part by the United States Environmental Protection Agency under an assistance agreement to the Washington State Department of Ecology. The contents of this document do not necessarily reflect the views and policies of the Environmental Protection Agency,nor does the mention of trade names or commercial products constitute endorsement or recommendation for use. C.Time Extension: The RECIPIENT may request a one-time extension for up to 12 months. However,the time extension cannot exceed the time limitation established in EPA's assistance agreement. In the event a time extension is requested and approved by ECOLOGY, the RECIPIENT must complete all eligible work performed under this agreement by the expiration date. SECTION 6: THE FOLLOWING CONDITIONS APPLY TO STATE REVOLVING FUND(SRF)LOAN FUNDED PROJECTS ONLY. The RECIPIENT must submit the following documents to ECOLOGY before this agreement is signed by ECOLOGY: 1.Opinion of RECIPIENT's Legal Council 2. Authorizing Ordinance or Resolution 3. Pre-Award Compliance Review Report for All Applicants Requesting Federal Assistance 4.Federal Funding Accountability and Transparency Act(FFATA)Form 5. Clean Water State Revolving Fund Initial Data Reporting Sheet A.Alteration and Eligibility of Project:During the term of this agreement,the RECIPIENT(1)shall not materially alter the design or structural character of the project without the prior written approval of ECOLOGY and (2)shall take no action which would adversely affect the eligibility of the project as defined by applicable funding program rules and state statutes,or which would cause a violation of any covenant,condition, or provision herein. B.American Iron and Steel(Buy American): This loan provision applies to projects for the construction,alteration, maintenance,or repair of a"treatment works„as defined in the Federal Water Pollution Control Act(33 USC 1381 et seq.) The RECIPIENT shall ensure that all iron and steel products used in the project are produced in the United States. Iron and Steel products means the following products made primarily of iron or steel: lined or unlined pipes and fittings,manhole covers and other municipal castings,hydrants,tanks, flanges,pipe clamps and restraints,valves, structural steel,reinforced precast concrete,and construction materials. The RECIPIENT may request waiver from this requirement from the Administrator of the Environmental Protection Agency.The RECIPIENT must coordinate all waiver requests through ECOLOGY. This provision does not apply if the engineering plans and specifications for the project were approved by ECOLOGY prior to January 17,2014. ECOLOGY reserves the right to request documentation of RECIPIENT'S compliance with this provision. C.Authority of RECIPIENT: This agreement is authorized by the Constitution and laws of the state of Washington, including the RECIPIENT's authority,and by the RECIPIENT pursuant to the authorizing ordinance or resolution. The RECIPIENT shall submit a copy of the authorizing ordinance or resolution to the ECOLOGY Financial Manager before this agreement shall be signed by ECOLOGY. WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 19 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES D. Clean Water State Revolving Fund Data Reporting Sheet(Data Reporting Sheet):The RECIPIENT shall submit the completed Data Reporting Sheet before this agreement is signed by ECOLOGY. ECOLOGY shall provide the Data Reporting Sheet form to the RECIPIENT. E.Disadvantaged Business Enterprise(DBE): General Compliance,40 CFR,Part 33. The RECIPIENT agrees to comply with the requirements of the Environmental Protection Agency's Program for Utilization of Small,Minority, and Women's Business Enterprises(MBE/WBE)40CFR,Part 33 in procurement under this agreement. Non-discrimination Provision. The RECIPIENT shall not discriminate on the basis of race, color,national origin or sex in the performance of this agreement. The RECIPIENT shall carry out applicable requirements of 40 CFR Part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the RECIPIENT to carry out these requirements is a material breach of this agreement which may result in the termination of this contract or other legally available remedies. The RECIPIENT shall comply with all federal and state nondiscrimination laws,including,but not limited to Title VI and VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973,Title IX of the Education Amendments of 1972,the Age Discrimination Act of 1975,and Chapter 49.60 RCW, Washington's Law Against Discrimination, and 42 U.S.C. 12101 et seq,the Americans with Disabilities Act(ADA). In the event of the RECIPIENT's noncompliance or refusal to comply with any applicable nondiscrimination law, regulation,or policy,this agreement may be rescinded,canceled,or terminated in whole or in part, and the RECIPIENT may be declared ineligible for further funding from ECOLOGY. The RECIPIENT shall,however,be given a reasonable time in which to cure this noncompliance. Fair Share Objective/Goals,40 CFR,Part 33, Subpart D. If the dollar amount of this agreement or the total dollar amount of all of the RECIPIENT's financial assistance agreements in the current federal fiscal year from the Revolving Fund is over$250,000, the RECIPIENT accepts the applicable MBE/WBE fair share objectives/goals negotiated with EPA by the Office of Minority Women Business Enterprises as follows: Construction 10.00%MBE 6.00%WBE Supplies 8.00%MBE 4.00%WBE Services 10.00%MBE 4.00% WBE Equipment 8.00%MBE 8.00%WBE By signing this agreement the RECIPIENT is accepting the fair share objectives/goals stated above and attests to the fact that it is purchasing the same or similar construction,supplies,services and equipment, in the same or similar relevant geographic buying market as Office of Minority Women Business Enterprises. Six Good Faith Efforts,40 CFR,Part 33, Subpart C. The RECIPIENT agrees to make the following good faith efforts whenever procuring construction, equipment,services and supplies under this agreement. Records documenting compliance with the following six good faith efforts shall be retained: 1)Ensuring Disadvantaged Business Enterprises are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State and Local and Government RECIPIENTS,this shall include placing Disadvantaged Business Enterprises on solicitation lists and soliciting them whenever they are potential sources. Qualified Women and Minority business enterprises may be found on the Internet at www.omwbe.wa.gov or by contacting the Washington State Office of Minority and Women's Enterprises at 866-208-1064. W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 20 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES 2)Making information on forthcoming opportunities available to Disadvantaged Business Enterprises and arrange time frames for contracts and establish delivery schedules,where the requirements permit, in a way that encourages and facilitates participation by Disadvantaged Business Enterprises in the competitive process. This includes,whenever possible,posting solicitations for bids or proposals for a minimum of thirty(30)calendar days before the bid or proposal closing date. 3)Considering in the contracting process whether firms competing for large contracts could subcontract with Disadvantaged Business Enterprises. For Indian Tribal, State and Local Government RECIPIENTs,this shall include dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum participation by Disadvantaged Business Enterprises in the competitive process. 4)Encourage contracting with a consortium of Disadvantaged Business Enterprises when a contract is too large for one of these firms to handle individually. 5)Using services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce. 6)If the prime contractor awards subcontracts, requiring the subcontractors to take the five good faith efforts in paragraphs 1 through 5 above. MBE/WBE Reporting,40 CFR,Part 33, Sections 33.302,33.502 and 33.503. The RECIPIENT agrees to provide forms: EPA Form 6100-2 DBE Subcontractor Participation Form and EPA Form 6100-3 DBE Subcontractor Performance Form to all its DBE subcontractors, and EPA Form 6100-4 DBE Subcontractor Utilization Form to all its prime contractors. These forms are available on ECOLOGY'S Water Quality Program funding website. EPA Form 6100-2—The RECIPIENT must document that this form was received by DBE subcontractor. DBE subcontractors may submit the completed form to the EPA Region 10 DBE coordinator in order to document issues or concerns with their usage or payment for a subcontract. EPA Form 6100-3 —This form must be completed by DBE subcontractor(s), submitted with bid,and kept with the contract. EPA Form 6100-4—This form must be completed by the prime contractor,submitted with bid,and kept with the contract. The RECIPIENT also agrees to submit ECOLOGY'S MBE/WBE participation report Form D with each payment request. Contract Administration Provisions,40 CFR, Section 33.302. The RECIPIENT agrees to comply with the contract administration provisions of 40 CFR, Section 33.302. The RECIPIENT also agrees to ensure that RECIPIENTS of identified loans also comply with provisions of 40CFR,Section 33.302. The RECIPIENT shall include the following terms and conditions in contracts with all contractors, subcontractors, engineers,vendors,and any other entity for work or services pertaining to this agreement. "The Contractor will not discriminate on the basis of race,color,national origin or sex in the performance of this Contract. The Contractor will carry out applicable requirements of 40 CFR Part 33 in the award and administration of contracts awarded under Environmental Protection Agency financial agreements.Failure by the Contractor to carry out these requirements is a material breach of this Contract which may result in termination of this Contract or other legally WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 21 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES available remedies.,, Bidder List,40 CFR, Section 33.501(b)and(c). The RECIPIENT agrees to create and maintain a bidders list. The bidders list shall include the following information for all firms that bid or quote on prime contracts,or bid or quote subcontracts,including both MBE/WBEs and non-MBE/WBEs. 1.Entity's name with point of contact 2.Entity's mailing address,telephone number,and e-mail address 3. The procurement on which the entity bid or quoted,and when 4.Entity's status as an MBE/WBE or non-MBE/WBE F.Electronic and Information Technology(EIT)Accessibility: RECIPIENTS shall ensure that loan funds provided under this agreement for costs incurred in the development or purchase of EIT systems or products provide individuals with disabilities reasonable accommodations and an equal and effective opportunity to benefit from or participate in a program, including those offered through electronic and information technology as per Section 504 of the Rehabilitation Act,codified in 40 CFR Part 7. Systems or products funded under this agreement must be designed to meet the diverse needs of users without barriers or diminished function or quality. Systems shall include usability features or functions that accommodate the needs of persons with disabilities,including those who use assistive technology. G.Free Service: The RECIPIENT shall not furnish utility service to any customer free of charge if providing that free service affects the RECIPIENT's ability to meet the obligations of this agreement. H.Insurance: The RECIPIENT shall at all times carry fire and extended coverage,public liability and property damage, and such other forms of insurance with responsible insurers and with policies payable to the RECIPIENT on such of the buildings, equipment,works,plants, facilities, and properties of the Utility as are ordinarily carried by municipal or privately-owned utilities engaged in the operation of like systems,and against such claims for damages as are ordinarily carried by municipal or privately-owned utilities engaged in the operation of like systems,or it shall self-insure or participate in an insurance pool or pools with reserves adequate, in the reasonable judgment of the RECIPIENT,to protect it against loss. I.Loan Interest Rate and Terms: This loan agreement shall remain in effect until the date of final repayment of the loan, unless terminated earlier according to the provisions herein. When the Project Completion Date has occurred, ECOLOGY and the RECIPIENT shall execute an amendment to this loan agreement which details the final loan amount(Final Loan Amount),and ECOLOGY shall prepare a final loan repayment schedule. The Final Loan Amount shall be the combined total of actual disbursements made on the loan and all accrued interest to the computation date. The Estimated Loan Amount and the Final Loan Amount(in either case,as applicable,a"Loan Amount„)shall bear interest based on the interest rate identified in this agreement as the"Effective Interest Rate,,,per annum,calculated on the basis of a 365 day year. Interest on the Estimated Loan Amount shall accrue from and be compounded monthly based on the date that each payment is mailed to the RECIPIENT. The Final Loan Amount shall be repaid in equal installments semiannually over the term of this loan"Loan Term„as outlined in this agreement. J.Loan Repayment: Sources of Loan Repayment 1.Nature of RECIPIENT's Obligation. The obligation of the RECIPIENT to repay the loan from the sources identified below and to perform and observe all of the other agreements and obligations on its part contained herein shall be absolute and unconditional, and shall not be subject to diminution by setoff,counterclaim, or abatement of any kind. To secure the repayment of the loan from ECOLOGY, the RECIPIENT agrees to comply with all of the covenants, WQC-2015-PorAngP W-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 22 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES agreements,and attachments contained herein. 2.For General Obligation. This loan is a General Obligation Debt of the RECIPIENT. 3. For General Obligation Payable from Special Assessments. This loan is a General Obligation Debt of the RECIPIENT payable from special assessments to be imposed within the constitutional and statutory tax limitations provided by law without a vote of the electors of the RECIPIENT on all of the taxable property within the boundaries of the RECIPIENT. 4. For Revenue-Secured:Lien Position. This loan is a Revenue-Secured Debt of the RECIPIENT's Utility. This loan shall constitute a lien and charge upon the Net Revenue junior and subordinate to the lien and charge upon such Net Revenue of any Senior Lien Obligations. In addition,if this loan is also secured by Utility Local Improvement Districts(ULID)Assessments,this loan shall constitute a lien upon ULID Assessments in the ULID prior and superior to any other charges whatsoever. 5. Other Sources of Repayment. The RECIPIENT may repay any portion of the loan from any funds legally available to it. 6.Defeasance of the Loan. So long as ECOLOGY shall hold this loan,the RECIPIENT shall not be entitled to, and shall not affect,an economic Defeasance of the loan. The RECIPIENT shall not advance refund the loan. If the RECIPIENT defeases or advance refunds the loan,it shall be required to use the proceeds thereof immediately upon their receipt,together with other available RECIPIENT funds,to repay both of the following: (i)The Loan Amount with interest (ii)Any other obligations of the RECIPIENT to ECOLOGY under this agreement,unless in its sole discretion ECOLOGY finds that repayment from those additional sources would not be in the public interest. Failure to repay the Loan Amount plus interest within the time specified in ECOLOGY's notice to make such repayment shall incur Late Charges and shall be treated as a Loan Default. 7.Refinancing or Early Repayment of the Project. So long as ECOLOGY shall hold this loan,the RECIPIENT shall give ECOLOGY thirty days written notice if the RECIPIENT intends to refinance or make early repayment of the loan. Method and Conditions on Repayments 1. Semiannual Payments. Notwithstanding any other provision of this agreement,the first semiannual payment of principal and interest on this loan shall be due and payable no later than one year after the project completion date or initiation of operation date,whichever comes first. Thereafter,equal payments shall be due every six months. If the due date for any semiannual payment falls on a Saturday, Sunday, or designated holiday for Washington State agencies,the payment shall be due on the next business day for Washington State agencies. Payments shall be mailed to: Department of Ecology WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 23 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Cashiering Unit P.O.Box 47611 Olympia WA 98504-7611 In lieu of mailing payments,electronic fund transfers can be arranged by working with ECOLOGY's Financial Manager. No change to the amount of the semiannual principal and interest payments shall be made without a formal amendment to this agreement. The RECIPIENT shall continue to make semiannual payments based on this agreement until the amendment is effective,at which time the RECIPIENT's payments shall be made pursuant to the amended agreement. 2.Late Charges. If any amount of the Final Loan Amount or any other amount owed to ECOLOGY pursuant to this agreement remains unpaid after it becomes due and payable, ECOLOGY may assess a late charge. The late charge shall be one percent per month on the past due amount starting on the date the debt becomes past due and until it is paid in full. 3.Repayment Limitations. Repayment of the loan is subject to the following additional limitations,among others: those on defeasance,refinancing and advance refunding,termination,and default and recovery of payments. 4. Prepayment of Loan. So long as ECOLOGY shall hold this loan,the RECIPIENT may prepay the entire unpaid principal balance of and accrued interest on the loan or any portion of the remaining unpaid principal balance of the Loan Amount. Any prepayments on the loan shall be applied first to any accrued interest due and then to the outstanding principal balance of the Loan Amount. If the RECIPIENT elects to prepay the entire remaining unpaid balance and accrued interest,the RECIPIENT shall first contact ECOLOGY's Revenue/Receivable Manager of the Fiscal Office. K.Loan Security Due Regard:For loans secured with a Revenue Obligation: The RECIPIENT shall exercise due regard for Maintenance and Operation Expense and the debt service requirements of the Senior Lien Obligations and any other outstanding obligations pledging the Gross Revenue of the Utility,and it has not obligated itself to set aside and pay into the loan Fund a greater amount of the Gross Revenue of the Utility than,in its judgment,shall be available over and above such Maintenance and Operation Expense and those debt service requirements. Levy and Collection of Taxes(if used to secure the repayment of the loan): For so long as the loan is outstanding,the RECIPIENT irrevocably pledges to include in its budget and levy taxes annually within the constitutional and statutory tax limitations provided by law without a vote of its electors on all of the taxable property within the boundaries of the RECIPIENT in an amount sufficient,together with other money legally available and to be used therefore,to pay when due the principal of and interest on the loan,and the full faith, credit and resources of the RECIPIENT are pledged irrevocably for the annual levy and collection of those taxes and the prompt payment of that principal and interest. Not an Excess Indebtedness:For loans secured with a general obligation pledge or a general obligation pledge on special assessments: The RECIPIENT agrees that this agreement and the loan to be made do not create an indebtedness of the RECIPIENT in excess of any constitutional or statutory limitations. Pledge of Net Revenue and ULID Assessments in the ULID(if used to secure the repayment of this loan): For so long as the loan is outstanding, the RECIPIENT irrevocably pledges the Net Revenue of the Utility,including applicable ULID Assessments in the ULID,to pay when due the principal of and interest on the loan. W QC-2015-PorAngP W-0017 5 Agreement No: WQC-2015-PorAngPW-00175 Page 24 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Reserve Requirement:For loans that are Revenue-Secured Debt with terms greater than five years, the RECIPIENT must accumulate a reserve for the loan equivalent to at least the Average Annual Debt Service on the loan during the first five years of the repayment period of the loan. This amount shall be deposited in a Reserve Account in the Loan Fund in approximately equal annual payments commencing within one year after the initiation of operation or the project completion date,whichever comes first. "Reserve Account„means, for a loan that constitutes Revenue-Secured Debt, an account of that name created in the Loan Fund to secure the payment of the principal and interest on the loan. The amount on deposit in the Reserve Account may be applied by the RECIPIENT(1)to make, in part or in full,the final repayment to ECOLOGY of the loan amount or,(2)if not so applied, for any other lawful purpose of the RECIPIENT once the Loan Amount,plus interest and any other amounts owing to ECOLOGY,have been paid in full. Utility Local Improvement District(ULID)Assessment Collection(if used to secure the repayment of the loan):All ULID Assessments in the ULID shall be paid into the loan Fund and used to pay the principal of and interest on the loan.The ULID Assessments in the ULID may be deposited into the Reserve Account to satisfy a Reserve Requirement if a Reserve Requirement is applicable. L.Maintenance and Operation of a Funded Utility: The RECIPIENT shall at all times maintain and keep a funded Utility in good repair,working order and condition and also shall at all times operate the Utility and the business in an efficient manner and at a reasonable cost. M. Opinion of RECIPIENT's Legal Counsel: The RECIPIENT must submit an"Opinion of Legal Counsel to the RECIPIENT„to ECOLOGY before this agreement shall be signed. ECOLOGY will provide the form. N.Payment to Consultants: The RECIPIENT shall ensure that loan funds provided under this agreement to reimburse for costs incurred by individual consultants(excluding overhead) is limited to the maximum daily rate for Level IV of the Executive Schedule(formerly GS-18),to be adjusted annually. This limit applies to consultation services of designated individuals with specialized skills who are paid at a daily or hourly rate. This rate does not include transportation and subsistence costs for travel performed. Contracts for services awarded using the procurement requirements in 40 CFR Parts 30 or 31,as applicable, are not affected by this limitation unless the terms of the contract provide the RECIPIENT with responsibility for the selection,direction,and control of the individuals who shall be providing services under the contract at an hourly or daily rate of compensation. See 40 CFR 30.27(b)or 40 CFR 31.360)for additional information. O.Prevailing Wage(Davis-Bacon Act):The RECIPIENT agrees,by signing this agreement,to comply with the Davis-Bacon Act prevailing wage requirements. This applies to the construction,alteration,and repair of treatment works carried out in whole or in part with assistance made available by the State Revolving Fund as authorized by Section 513,title VI of the Federal Water Pollution Control Act(33 U.S.C. 1372). Laborers and mechanics employed by contractors and subcontractors shall be paid wages not less often than once a week and at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor. The RECIPIENT shall obtain the wage determination for the area in which the project is located prior to issuing requests for bids,proposals,quotes or other methods for soliciting contracts(solicitation). These wage determinations shall be incorporated into solicitations and any subsequent contracts. The RECIPIENT shall ensure that the required EPA contract language regarding Davis-Bacon Wages is in all contracts and sub contracts in excess of$2,000. The RECIPIENT shall maintain records sufficient to document compliance with the Davis-Bacon Act, and make such records available for review upon request. The RECIPIENT also agrees,by signing this agreement, to comply with State Prevailing Wages on Public Works, W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 25 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Chapter 39.12 RCW,as applicable. Compliance may include the determination whether the project involves"public work„and inclusion of the applicable prevailing wage rates in the bid specifications and contracts. The RECIPIENT agrees to maintain records sufficient to evidence compliance with Chapter 39.12 RCW,and make such records available for review upon request. P.Litigation;Authority:No litigation is now pending, or to the RECIPIENT's knowledge,threatened,seeking to restrain,or enjoin: (i) the execution of this agreement;or (ii) the fixing or collection of the revenues,rates, and charges or the formation of the ULID and the levy and collection of ULID Assessments therein pledged to pay the principal of and interest on the loan(for revenue secured lien obligations); or (iii) the levy and collection of the taxes pledged to pay the principal of and interest on the loan(for general obligation-secured loans and general obligation payable from special-assessment-secured loans);or (iv) in any manner questioning the proceedings and authority under which the agreement,the loan,or the project are authorized. Neither the corporate existence or boundaries of the RECIPIENT nor the title of its present officers to their respective offices is being contested. No authority or proceeding for the execution of this agreement has been repealed, revoked,or rescinded. Q.Representations and Warranties:The RECIPIENT represents and warrants to ECOLOGY as follows: Application: Material Information. All information and materials submitted by the RECIPIENT to ECOLOGY in connection with its loan application were,when made, and are, as of the date the RECIPIENT signs this agreement,true and correct. There is no material adverse information relating to the RECIPIENT,the project,the loan,or this agreement known to the RECIPIENT which has not been disclosed in writing to ECOLOGY. Existence;Authority. It is a duly formed and legally existing municipal corporation or political subdivision of the state of Washington or a federally recognized Indian Tribe. It has full corporate power and authority to execute,deliver,and perform all of its obligations under this agreement and to undertake the project identified herein. Certification. Each payment request shall constitute a certification by the RECIPIENT to the effect that all representations and warranties made in this loan agreement remain true as of the date of the request and that no adverse developments, affecting the financial condition of the RECIPIENT or its ability to complete the project or to repay the principal of or interest on the loan,have occurred since the date of this loan agreement. Any changes in the RECIPIENT's financial condition shall be disclosed in writing to ECOLOGY by the RECIPIENT in its request for payment. R. Sale or Disposition of Utility:The RECIPIENT shall not sell,transfer,or otherwise dispose of any of the works, plant,properties, facilities,or other part of the Utility,or any real or personal property comprising a part of the Utility unless one of the following applies: 1.The facilities or property transferred are not material to the operation of the Utility;or have become unserviceable, inadequate,obsolete,or unfit to be used in the operation of the Utility;or are no longer necessary,material,or useful to the operation of the Utility. 2. The aggregate depreciated cost value of the facilities or property being transferred in any fiscal year comprises no W QC-2015-PorAngP W-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 26 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES more than three percent of the total assets of the Utility. 3. The RECIPIENT receives from the transferee an amount which shall be in the same proportion to the net amount of Senior Lien Obligations and this loan then outstanding(defined as the total amount outstanding less the amount of cash and investments in the bond and loan funds securing such debt)as the Gross Revenue of the Utility from the portion of the Utility sold or disposed of for the preceding year bears to the total Gross Revenue for that period. The proceeds of any transfer under this paragraph shall be used(1)to redeem promptly or irrevocably set aside for the redemption of, Senior Lien Obligations and to redeem promptly the loan;or(2)to provide for part of the cost of additions to and betterments and extensions of the Utility. S. Sewer-Use Ordinance or Resolution:If not already in existence, the RECIPIENT shall adopt and shall enforce a sewer-use ordinance or resolution. The sewer use ordinance must include provisions to: 1)Prohibit the introduction of toxic or hazardous wastes into the RECIPIENT's sewer system. 2)Prohibit inflow of stormwater. 3)Require that new sewers and connections be properly designed and constructed. 4)Require all existing and future residents to connect to the sewer system. Such ordinance or resolution shall be submitted to ECOLOGY upon request by ECOLOGY. T. Termination and Default: Termination and Default Events 1. For Insufficient ECOLOGY or RECIPIENT Funds. ECOLOGY may terminate this loan agreement for insufficient ECOLOGY or RECIPIENT funds. 2.For Failure to Commence Work. ECOLOGY may terminate this loan agreement for failure of the RECIPIENT to commence project work. 3.Past Due Payments. The RECIPIENT shall be in default of its obligations under this loan agreement when any loan repayment becomes 60 days past due. 4. Other Cause. The obligation of ECOLOGY to the RECIPIENT is contingent upon satisfactory performance in full by the RECIPIENT of all of its obligations under this loan agreement. The RECIPIENT shall be in default of its obligations under this loan agreement if,in the opinion of ECOLOGY, the RECIPIENT has unjustifiably failed to perform any obligation required of it by this loan agreement. Procedures for Termination.If this loan agreement is terminated prior to project completion, ECOLOGY shall provide to the RECIPIENT a written notice of termination at least five working days prior to the effective date of termination (the"Termination Date,,). The written notice of termination by the ECOLOGY shall specify the Termination Date and, when applicable,the date by which the RECIPIENT must repay any outstanding balance of the loan and all accrued interest(the"Termination Payment Date,,). Termination and Default Remedies No Further Payments. On and after the Termination Date,or in the event of a default event,ECOLOGY may,at its sole WQC-2015-PorAngP W-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 27 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES discretion,withdraw the loan and make no further payments under this agreement. Repayment Demand. In response to an ECOLOGY initiated termination event,or in response to a loan default event, ECOLOGY may at its sole discretion demand that the RECIPIENT repay the outstanding balance of the Loan Amount and all accrued interest. Interest after Repayment Demand. From the time that ECOLOGY demands repayment of funds,amounts owed by the RECIPIENT to ECOLOGY shall accrue additional interest at the rate of one percent per month,or fraction thereof. Accelerate Repayments. In the event of a default, ECOLOGY may at its sole discretion declare the principal of and interest on the loan immediately due and payable, subject to the prior lien and charge of any outstanding Senior Lien Obligations upon the Net Revenue. Repayments not made immediately upon such acceleration shall incur late charges. Late Charges. All amounts due to ECOLOGY and not paid by the RECIPIENT by the Termination Payment Date or after acceleration following a default event,as applicable, shall incur late charges. Intercept State Funds. In the event of a default event and in accordance with Chapter 90.50A.060 RCW,"Defaults,,, any state funds otherwise due to the RECIPIENT may,at ECOLOGY's sole discretion,be withheld and applied to the repayment of the loan. Property to ECOLOGY. In the event of a default event and at the option of ECOLOGY,any personal property (equipment)acquired under this agreement may, in ECOLOGY's sole discretion,become ECOLOGY's property. In that circumstance,ECOLOGY shall reduce the RECIPIENT's liability to repay money by an amount reflecting the fair value of such property. Documents and Materials. If this agreement is terminated,all finished or unfinished documents,data studies,surveys, drawings,maps,models,photographs, and reports or other materials prepared by the RECIPIENT shall,at the option of ECOLOGY,become ECOLOGY property. The RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Collection and Enforcement Actions. In the event of a default event,the state of Washington reserves the right to take any actions it deems necessary to collect the amounts due,or to become due,or to enforce the performance and observance of any obligation by the RECIPIENT,under this agreement. Fees and Expenses. In any action to enforce the provisions of this agreement,reasonable fees and expenses of attorneys and other reasonable expenses(including,without limitation, the reasonably allocated costs of legal staff)shall be awarded to the prevailing party as that term is defined in Chapter 4.84.330 RCW. Damages. Notwithstanding ECOLOGY's exercise of any or all of the termination or default remedies provided in this agreement,the RECIPIENT shall not be relieved of any liability to ECOLOGY for damages sustained by ECOLOGY and/or the state of Washington because of any breach of this agreement by the RECIPIENT. ECOLOGY may withhold payments for the purpose of setoff until such time as the exact amount of damages due ECOLOGY from the RECIPIENT is determined. U. User-Charge System:The RECIPIENT certifies that it has the legal authority to establish and implement a user-charge system and shall adopt a system of user-charges to assure that each user of the utility shall pay its proportionate share of the cost of operation and maintenance,including replacement during the design life of the project. In addition,the RECIPIENT shall regularly evaluate the user-charge system,at least annually,to ensure the system W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 28 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES provides adequate revenues necessary to operate and maintain the utility,to establish a reserve to pay for replacement, to establish the required Loan Reserve Account,and to repay the loan. GENERAL FEDERAL CONDITIONS If a portion or all of the funds for this agreement are provided through federal funding sources or this agreement is used to match a federal grant award,the following terms and conditions apply to you. CERTIFICATION REGARDING SUSPENSION DEBARMENT INELIGIBILITY OR VOLUNTARY EXCLUSION• 1. The RECIPIENT/CONTRACTOR,by signing this agreement,certifies that it is not suspended,debarred, proposed for debarment,declared ineligible or otherwise excluded from contracting with the federal government,or from receiving contracts paid for with federal funds.If the RECIPIENT/CONTRACTOR is unable to certify to the statements contained in the certification,they must provide an explanation as to why they cannot. 2. The RECIPIENT/CONTRACTOR shall provide immediate written notice to ECOLOGY if at any time the RECIPIENT/CONTRACTOR learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3. The terms covered transaction,debarred,suspended,ineligible, lower tier covered transaction,participant, person,primary covered transaction,principal,proposal,and voluntarily excluded,as used in this clause,have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department for assistance in obtaining a copy of those regulations.. 4. The RECIPIENT/CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under the applicable Code of Federal Regulations, debarred, suspended,declared ineligible,or voluntarily excluded from participation in this covered transaction. 5. The RECIPIENT/CONTRACTOR further agrees by signing this agreement,that it will include this clause titled "CERTIFICATION REGARDING SUSPENSION,DEBARMENT,INELIGIBILITY OR VOLUNTARY EXCLUSION„without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 6. Pursuant to 2CFR180.330,the RECIPIENT/CONTRACTOR is responsible for ensuring that any lower tier covered transaction complies with certification of suspension and debarment requirements. 7. RECIPIENT/CONTRACTOR acknowledges that failing to disclose the information required in the Code of Federal Regulations may result in the delay or negation of this funding agreement,or pursuance of legal remedies, including suspension and debarment. 8. RECIPIENT/CONTRACTOR agrees to keep proof in its agreement file,that it, and all lower tier recipients or contractors,are not suspended or debarred, and will make this proof available to ECOLOGY before requests for reimbursements will be approved for payment.RECIPIENT/CONTRACTOR must run a search in <http://www.sain.gov>and print a copy of completed searches to document proof of compliance. Federal Funding Accountability And Transparency Act(FFATA) porting Requirements: RECIPIENT must complete the FFATA Data Collection Form(ECY 070-395)and return it with the signed agreement to ECOLOGY. Any RECIPIENT that meets each of the criteria below must also report compensation for its five top executives, using FFATA Data Collection Form. Receives more than$25,000 in federal funds under this award;and Receives more than 80 percent of its annual gross revenues from federal funds;and Receives more than$25,000,000 in annual federal funds W QC-2015-PorAngP W-0017 5 Agreement No: WQC-2015-PorAngPW-00175 Page 29 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES ECOLOGY will not pay any invoice until it has received a completed and signed FFATA Data Collection Form. ECOLOGY is required to report the FFATA information for federally funded agreements, including the required DUNS number,at www.fsrs. og v<http://www.fsrs.gov>within 30 days of agreement signature. The FFATA information will be available to the public at www.usaspending, og v<http://www.usaspending.gov>. For more details on FFATA requirements,see www.fsrs. og v<http://www.fsrs.gov>. GENERAL TERMS AND CONDITIONS 1. ADMINISTRATIVE REQUIREMENTS a) RECIPIENT shall follow the"Administrative Requirements for Recipients of Ecology Grants and Loans—EAGL Edition". https:H fortress.wa.gov/ecy/publications/SummaryPages/1401002.html b) RECIPIENT shall complete all activities funded by this Agreement and be fully responsible for the proper management of all funds and resources made available under this Agreement. c) RECIPIENT agrees to take complete responsibility for all actions taken under this Agreement,including ensuring all subgrantees and contractors comply with the terms and conditions of this Agreement.ECOLOGY reserves the right to request proof of compliance by subgrantees and contractors. d) RECIPIENT's activities under this Agreement shall be subject to the review and approval by ECOLOGY for the extent and character of all work and services. 2. AMENDMENTS AND MODIFICATIONS This Agreement may be altered,amended,or waived only by a written amendment executed by both parties. No subsequent modification(s)or amendment(s)of this Agreement will be of any force or effect unless in writing and signed by authorized representatives of both parties. ECOLOGY and the RECIPIENT may change their respective staff contacts and administrative information without the concurrence of either party. 3. ARCHAEOLOGICAL AND CULTURAL RESOURCES RECIPIENT shall take reasonable action to avoid,minimize,or mitigate adverse effects to archeological or cultural resources. Activities associated with archaeological and cultural resources are an eligible reimbursable cost subject to approval by ECOLOGY. RECIPIENT shall: a) Immediately cease work and notify ECOLOGY if any archeological or cultural resources are found while conducting work under this Agreement. b) Immediately notify the Department of Archaeology and Historic Preservation at(360)586-3064, in the event historical or cultural artifacts are discovered at a work site. c) Comply with Governor Executive Order 05-05,Archaeology and Cultural Resources, for any capital construction projects prior to the start of any work. d) Comply with RCW 27.53,Archaeological Sites and Resources, for any work performed under this Agreement,as applicable. National Historic Preservation Act(NHPA)may require the RECIPIENT to obtain a permit pursuant to Chapter 27.53 RCW prior to conducting on-site activity with the potential to impact cultural or historic properties. 4. ASSIGNMENT No right or claim of the RECIPIENT arising under this Agreement shall be transferred or assigned by the RECIPIENT. WQC 2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 30 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES 5. COMMUNICATION RECIPIENT shall make every effort to maintain effective communications with the RECIPIENT's designees, ECOLOGY,all affected local, state,or federal jurisdictions,and any interested individuals or groups. 6. COMPENSATION a) Any work performed prior to effective date of this Agreement will be at the sole expense and risk of the RECIPIENT. ECOLOGY must sign the Agreement before any payment requests can be submitted. b) Payments will be made on a reimbursable basis for approved and completed work as specified in this Agreement. c) RECIPIENT is responsible to understand if costs are eligible. Any questions regarding eligibility should be clarified with ECOLOGY prior to incurring costs. Costs that are conditionally eligible may require approval by ECOLOGY prior to purchase. d) RECIPIENT shall not invoice more than once per month unless agreed on by ECOLOGY. e) ECOLOGY will not process payment requests without the proper reimbursement forms,Progress Report and supporting documentation. ECOLOGY will provide instructions for submitting payment requests. f) ECOLOGY will pay the RECIPIENT thirty(30)days after receipt of a properly completed request for payment. g) RECIPIENT will receive payment through Washington State Department of Enterprise Services'Statewide Payee Desk. RECIPIENT must register as a payee by submitting a Statewide Payee Registration form and an IRS W-9 form at the website,http://www.des.wa.gov/services/ContractingPurchasing/Business/VendorPay/Pages/default.aspx. For any questions about the vendor registration process contact the Statewide Payee Help Desk at(360)407-8180 or email payeehelpdesk@,des.wa.gov. h) ECOLOGY may,at its sole discretion,withhold payments claimed by the RECIPIENT if the RECIPIENT fails to satisfactorily comply with any term or condition of this Agreement. i) Monies withheld by ECOLOGY may be paid to the RECIPIENT when the work described herein, or a portion thereof,have been completed if,at ECOLOGY's sole discretion, such payment is reasonable and approved according to this Agreement and,as appropriate,or upon completion of an audit as specified herein. j) RECIPIENT should submit final requests for compensation within thirty(30)days after the expiration date of this Agreement. Failure to comply may result in delayed reimbursement. 7. COMPLIANCE WITH ALL LAWS RECIPIENT agrees to comply fully with all applicable Federal, State and local laws,orders,regulations,and permits related to this Agreement,including but not limited to: a) 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. b) RECIPIENT agrees to be bound by all federal and state laws,regulations, and policies against discrimination. c) RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. d) RECIPIENT agrees to secure and provide assurance to ECOLOGY that all the necessary approvals and permits required by authorities having jurisdiction over the project are obtained. RECIPIENT must include time in their project timeline for the permit and approval processes. ECOLOGY shall have the right to immediately terminate for cause this Agreement as provided herein if the RECIPIENT fails to comply with above requirements. If any provision of this Agreement violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. 8. CONFLICT OF INTEREST RECIPIENT and ECOLOGY agree that any officer,member,agent,or employee,who exercises any function or responsibility in the review,approval, or carrying out of this Agreement, shall not have any personal or financial interest,direct or indirect,nor affect the interest of any corporation,partnership,or association in which he/she is a part, W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 31 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES in this Agreement or the proceeds thereof. 9. CONTRACTING FOR GOODS AND SERVICES RECIPIENT may contract to buy goods or services related to its performance under this Agreement. RECIPIENT shall award all contracts for construction,purchase of goods,equipment,services,and professional architectural and engineering services through a competitive process, if required by State law. RECIPIENT is required to follow procurement procedures that ensure legal,fair,and open competition. RECIPIENT must have a standard procurement process or follow current state procurement procedures. RECIPIENT may be required to provide written certification that they have followed their standard procurement procedures and applicable state law in awarding contracts under this Agreement. ECOLOGY reserves the right to inspect and request copies of all procurement documentation,and review procurement practices related to this Agreement. Any costs incurred as a result of procurement practices not in compliance with state procurement law or the RECIPIENT's normal procedures may be disallowed at ECOLOGY's sole discretion. 10. DISPUTES When there is a dispute with regard to the extent and character of the work,or any other matter related to this Agreement the determination of ECOLOGY will govern,although the RECIPIENT shall have the right to appeal decisions as provided for below: a) RECIPIENT notifies the funding program of an appeal request. b) Appeal request must be in writing and state the disputed issue(s). c) RECIPIENT has the opportunity to be heard and offer evidence in support of its appeal. d) ECOLOGY reviews the RECIPIENT's appeal. e) ECOLOGY sends a written answer within ten(10)business days,unless more time is needed,after concluding the review. The decision of ECOLOGY from an appeal will be final and conclusive,unless within thirty(30)days from the date of such decision,the RECIPIENT furnishes to the Director of ECOLOGY a written appeal.The decision of the Director or duly authorized representative will be final and conclusive. The parties agree that this dispute process will precede any action in a judicial or quasi-judicial tribunal. Appeals of the Director's decision will be brought in the Superior Court of Thurston County. Review of the Director's decision will not be taken to Environmental and Land Use Hearings Office. Pending final decision of a dispute,the RECIPIENT agrees to proceed diligently with the performance of this Agreement and in accordance with the decision rendered. Nothing in this contract will be construed to limit the parties'choice of another mutually acceptable method,in addition to the dispute resolution procedure outlined above. 11. ENVIRONMENTAL STANDARDS a) RECIPIENTS who collect environmental-monitoring data must provide these data to ECOLOGY using the Environmental Information Management System(EIM). To satisfy this requirement these data must be successfully loaded into EIM, see instructions on the EIM website at:http://www.ecy.wa.gov/eim. b) RECIPIENTS are required to follow ECOLOGY's data standards when Geographic Information System (GIS)data are collected and processed. More information and requirements are available at: http://www.ecy.wa.gov/services/gis/data/standards/standards.htm. RECIPIENTS shall provide copies to ECOLOGY of WQC-2015 PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 32 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES all final GIS data layers,imagery,related tables,raw data collection files,map products,and all metadata and project documentation. c) RECIPIENTS must prepare a Quality Assurance Project Plan(QAPP)when a project involves the collection of environmental measurement data. QAPP is to ensure the consistent application of quality assurance principles to the planning and execution of all activities involved in generating data. RECIPIENTS must follow ECOLOGY's Guidelines for Preparing Quality Assurance Project Plans for Environmental Studies,July 2004(Ecology Publication No. 04-03-030). ECOLOGY shall review and approve the QAPP prior to start of work. The size,cost,and complexity of the QAPP should be in proportion to the magnitude of the sampling effort. 12. GOVERNING LAW This Agreement will be governed by the laws of the State of Washington,and the venue of any action brought hereunder will be in the Superior Court of Thurston County. 13. INDEMNIFICATION ECOLOGY will 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. To the extent that the Constitution and laws of the State of Washington permit,each party will 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. 14. INDEPENDENT STATUS The employees,volunteers, or agents of each party who are engaged in the performance of this Agreement will continue to be employees,volunteers,or agents of that party and will not for any purpose be employees,volunteers,or agents of the other party. 15. KICKBACKS RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this Agreement 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. 16. MINORITY AND WOMEN'S BUSINESS ENTERPRISES(MWBE) RECIPIENT is encouraged to solicit and recruit,to the extent possible,certified minority-owned(MBE)and women-owned(WBE)businesses in purchases and contracts initiated under this Agreement. Contract awards or rejections cannot be made based on MWBE participation;however, the RECIPIENT is encouraged to take the following actions,when possible, in any procurement under this Agreement: a) Include qualified minority and women's businesses on solicitation lists whenever they are potential sources of goods or services. b) Divide the total requirements,when economically feasible,into smaller tasks or quantities,to permit maximum participation by qualified minority and women's businesses. c) Establish delivery schedules,where work requirements permit,which will encourage participation of qualified minority and women's businesses. d) Use the services and assistance of the Washington State Office of Minority and Women's Business Enterprises (OMWBE)(866-208-1064)and the Office of Minority Business Enterprises of the U.S.Department of Commerce,as appropriate. 17. ORDER OF PRECEDENCE In the event of inconsistency in this Agreement,unless otherwise provided herein,the inconsistency shall be resolved by WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 33 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES 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 provisions or terms incorporated herein by reference including the "Administrative Requirements for Recipients of Ecology Grants and Loans";and(e) the General Terms and Conditions. 18. PRESENTATION AND PROMOTIONAL MATERIALS RECIPIENT shall obtain ECOLOGY's approval for all communication materials or documents related to the fulfillment of this Agreement,steps for approval: a) Provide a draft copy to ECOLOGY for review and approval ten(10)business days prior to production and distribution of any documents or materials compiled or produced. b) ECOLOGY reviews draft copy and reserves the right to require changes until satisfied. c) Provide ECOLOGY two(2)final copies and an electronic copy of any tangible products developed. Copies include any printed materials,and all tangible products developed such as brochures,manuals,pamphlets, videos,audio tapes,CDs,curriculum,posters,media announcements,or gadgets,such as a refrigerator magnet with a message as well as media announcements, and any other online communication products such as Web pages,blogs,and Twitter campaigns.If it is not practical to provide a copy, then the RECIPIENT must provide a complete description including photographs,drawings,or printouts of the product that best represents the item. RECIPIENT shall include time in their project timeline for ECOLOGY's review and approval process. RECIPIENT shall acknowledge in the materials or documents that funding was provided by ECOLOGY. 19. PROGRESS REPORTING a) RECIPIENT must satisfactorily demonstrate the timely use of funds by submitting payment requests and progress reports to ECOLOGY. ECOLOGY reserves the right to amend or terminate this Agreement if the RECIPIENT does not document timely use of funds. b) RECIPIENT must submit a progress report with each payment request. Payment requests will not be processed without a progress report. ECOLOGY will define the elements and frequency of progress reports. c) RECIPIENT shall use ECOLOGY's provided progress report format. d) Quarterly progress reports will cover the periods from January 1 through March 31,April 1 through June 30,July 1 through September 30,and October 1 through December 31. Reports shall be submitted within thirty(30)days after the end of the quarter being reported. e) RECIPIENT shall submit the Closeout Report within thirty(30)days of the expiration date of the project,unless an extension has been approved by ECOLOGY. RECIPIENT shall use the ECOLOGY provided closeout report format. 20. PROPERTY RIGHTS a) Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property,the RECIPIENT may copyright or patent the same but ECOLOGY 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. b) Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of ECOLOGY;present papers, lectures, or seminars involving information supplied by ECOLOGY;use logos,reports, maps,or other data, in printed reports,signs,brochures,pamphlets,etc., appropriate credit shall be given to ECOLOGY. c) Presentation and Promotional Materials. ECOLOGY shall have the right to use or reproduce any printed or graphic materials produced in fulfillment of this Agreement, in any manner ECOLOGY deems appropriate.ECOLOGY shall acknowledge the RECIPIENT as the sole copyright owner in every use or reproduction of the materials. d) Tangible Property Rights. ECOLOGY's current edition of"Administrative Requirements for Recipients of Ecology Grants and Loans," shall control the use and disposition of all real and personal property purchased wholly or in part WQC-2015-PorAngP W-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 34 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES with funds furnished by ECOLOGY in the absence of state and federal statutes,regulations,or policies to the contrary, or upon specific instructions with respect thereto in this Agreement. e) Personal Property Furnished by ECOLOGY. When ECOLOGY provides personal property directly to the RECIPIENT for use in performance of the project,it shall be returned to ECOLOGY prior to final payment by ECOLOGY. If said property is lost,stolen,or damaged while in the RECIPIENT's possession, then ECOLOGY shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. f) Acquisition Projects. The following provisions shall apply if the project covered by this Agreement includes funds for the acquisition of land or facilities: a. RECIPIENT shall establish that the cost is fair value and reasonable prior to disbursement of funds provided for in this Agreement. b. 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 intended by this Agreement. g) Conversions. Regardless of the agreement expiration date, the RECIPIENT shall not at any time convert any equipment,property, or facility acquired or developed under this Agreement to uses other than those for which assistance was originally approved without prior written approval of ECOLOGY. Such approval may be conditioned upon payment to ECOLOGY 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. 21. RECORDS,AUDITS,AND INSPECTIONS RECIPIENT shall maintain complete program and financial records relating to this Agreement, including any engineering documentation and field inspection reports of all construction work accomplished. All records shall: a) Be kept in a manner which provides an audit trail for all expenditures. b) Be kept in a common file to facilitate audits and inspections. c) Clearly indicate total receipts and expenditures related to this Agreement. d) Be open for audit or inspection by ECOLOGY,or by any duly authorized audit representative of the State of Washington, for a period of at least three(3)years after the final grant payment or loan repayment,or any dispute resolution hereunder. RECIPIENT shall provide clarification and make necessary adjustments if any audits or inspections identify discrepancies in the records. ECOLOGY reserves the right to audit,or have a designated third party audit,applicable records to ensure that the state has been properly invoiced. Any remedies and penalties allowed by law to recover monies determined owed will be enforced. Repetitive instances of incorrect invoicing or inadequate records may be considered cause for termination. All work performed under this Agreement and any property and equipment purchased shall be made available to ECOLOGY 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(3)years following grant or loan termination or dispute resolution hereunder. RECIPIENT shall provide right of access to ECOLOGY,or any other authorized representative, at all reasonable times, in order to monitor and evaluation performance,compliance, and any other conditions under this Agreement. 22. RECOVERY OF FUNDS The right of the RECIPIENT to retain monies received as reimbursement payments is contingent upon satisfactory performance of this Agreement and completion of the work described in the Scope of Work. WQC-20 15-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 35 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES All payments to the RECIPIENT are subject to approval and audit by ECOLOGY,and any unauthorized expenditure(s) or unallowable cost charged to this agreement shall be refunded to ECOLOGY by the RECIPIENT. RECIPIENT shall refund to ECOLOGY the full amount of any erroneous payment or overpayment under this Agreement. RECIPIENT shall refund by check payable to ECOLOGY the amount of any such reduction of payments or repayments within thirty(30)days of a written notice. Interest will accrue at the rate of twelve percent(12%)per year from the time ECOLOGY demands repayment of funds. Any property acquired under this Agreement,at the option of ECOLOGY,may become ECOLOGY's property and the RECIPIENT's liability to repay monies will be reduced by an amount reflecting the fair value of such property. 23. 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. 24. STATE ENVIRONMENTAL POLICY ACT(SEPA) RECIPIENT must demonstrate to ECOLOGY's satisfaction that compliance with the requirements of the State Environmental Policy Act(Chapter 43.21C RCW and Chapter 197-11 WAC)have been or will be met. Any reimbursements are subject to this provision. 25. SUSPENSION When in the best interest of ECOLOGY,ECOLOGY may at any time,and without cause, suspend this Agreement or any portion thereof for a temporary period by written notice from ECOLOGY to the RECIPIENT.RECIPIENT shall resume performance on the next business day following the suspension period unless another day is specified by ECOLOGY. 26. SUSTAINABLE PRACTICES In order to sustain Washington's natural resources and ecosystems,the RECIPIENT is fully encouraged to implement sustainable practices and to purchase environmentally preferable products under this Agreement. a) Sustainable practices may include such activities as: use of clean energy,use of double-sided printing,hosting low impact meetings,and setting up recycling and composting programs. b) Purchasing may include such items as: sustainably produced products and services, EPEAT registered computers and imaging equipment,independently certified green cleaning products,remanufactured toner cartridges,products with reduced packaging, office products that are refillable,rechargeable,and recyclable,and 100%post consumer recycled paper. For more suggestions visit ECOLOGY's web pages: Green Purchasing,http://www.ecy.wa.gov/programs/swfa/epp and Sustainability,www.ecy.wa.gov/sustainability. 27. TERMINATION a) For Cause ECOLOGY may terminate for cause this Agreement with a seven(7)calendar days prior written notification to the RECIPIENT,at the sole discretion of ECOLOGY, for failing to perform an Agreement requirement or for a material breach of any term or condition. If this Agreement is so terminated,the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. WQC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 36 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES Failure to Commence Work.ECOLOGY reserves the right to terminate this Agreement if RECIPIENT fails to commence work on the project funded within four(4)months after the effective date of this Agreement,or by any date mutually agreed upon in writing for commencement of work, or the time period defined within the Scope of Work. Non-Performance. The obligation of ECOLOGY 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 ECOLOGY,to perform any obligation required of it by this Agreement,ECOLOGY may refuse to pay any further funds,terminate in whole or in part this Agreement,and exercise any other rights under this Agreement. Despite the above,the RECIPIENT shall not be relieved of any liability to ECOLOGY for damages sustained by ECOLOGY and the State of Washington because of any breach of this Agreement by the RECIPIENT. ECOLOGY may withhold payments for the purpose of setoff until such time as the exact amount of damages due ECOLOGY from the RECIPIENT is determined. b) For Convenience ECOLOGY may terminate for convenience this Agreement,in whole or in part, for any reason when it is the best interest of ECOLOGY,with a thirty(30)calendar days prior written notification to the RECIPIENT. If this Agreement is so terminated,the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. Non-Allocation of Funds. ECOLOGY's ability to make payments is contingent on availability of funding. In the event funding from state, federal or other sources is withdrawn,reduced, or limited in any way after the effective date and prior to the completion or expiration date of this agreement,ECOLOGY, at its sole discretion,may elect to terminate the agreement, in whole or part,or renegotiate the agreement, subject to new funding limitations or conditions. ECOLOGY may also elect to suspend performance of the agreement until ECOLOGY determines the funding insufficiency is resolved. ECOLOGY may exercise any of these options with no notification or restrictions. If payments have been discontinued by ECOLOGY due to unavailable funds,the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. RECIPIENT's obligation to continue or complete the work described in this Agreement shall be contingent upon availability of funds by the RECIPIENT's governing body. c) By Mutual Agreement ECOLOGY and the RECIPIENT may terminate this Agreement,in whole or in part,at any time,by mutual written agreement. d) In Event of Termination All finished or unfinished documents,data studies,surveys,drawings,maps,models,photographs,reports or other materials prepared by the RECIPIENT under this Agreement,at the option of ECOLOGY,will become property of ECOLOGY and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Nothing contained herein shall preclude ECOLOGY from demanding repayment of all funds paid to the RECIPIENT in accordance with Recovery of Funds, identified herein. 28. THIRD PARTY BENEFICIARY 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. W QC-2015-PorAngPW-00175 Agreement No: WQC-2015-PorAngPW-00175 Page 37 of 37 Project Title: Port Angeles CSO Phase 2 Recipient Name: CITY OF PORT ANGELES 29. WAIVER Waiver of a default or breach of any provision of this Agreement is not a waiver of any subsequent default or 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 ECOLOGY. W QC-2015-PorAngP W-0017 5 E