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HomeMy WebLinkAbout5.397 Original Contract 5.3ot'? WMD Agreement No.: MD-97-6110-JQ.9 ." STATE OF WASHINGTON MILITARY DEPARTMENT STATE EMERGENCY MANAGEMENT ti ~ ~f POft An~l-es 1.0 PARTIES TO THIS AGREEMENT This agreement is made and entered into by and between the WASHINGTON MILITARY DEPARTMENT ~or agercXhjetafter referred to as "DEPARTMENT", and the pnrr H es hereinafter referred to as the "AP LI CANT" . WHEREAS the DEPARTMENT is authorized by the 1995 FEMA-State Agreement for the Winter Storms 1995 Event to execute on behalf of the State of Washington all necessary documents for public assistance, including approval of subgrants and certification of claims; THEREFORE, both parties mutually agree to the following: 2.0 PURPOSE Federal funding is provided by the Federal Emergency Management Agency (FEMA) and is administered by the DEPARTMENT. Under the authority of Presidential Major Disaster Declaration FEMA 1 079-DR-WA, the DEPARTMENT is reimbursing the APPLICANT for those eligible costs and activities necessary for the repair and restoration of public facilities damaged during the period of November 7 through December 18, 1995. 3.0 TIME OF PERFORMANCE Activities payable under this agreement and to be performed by the APPLICANT under this agreement shall be those activities which occurred on or subsequent to the incident period defined in the FEMA-State Agreement and shall terminate upon completion of the project(s) approved by federal and state officials, including completion of close out and audit. This period shall be referred to as the "Agreement Period." 4.0 CLOSE-OUT It shall be the responsibility of the DEPARTMENT to issue close-out instructions to the APPLICANT upon completion of the project(s). FEMA-1079-DR-WA 1/96 Page 1 of 1 0 5.0 FUNDING The DEPARTMENT will administer the disaster assistance program and reimburse any eligible costs for eligible projects to the APPLICANT which are identified under the auspices of the Presidential Major Disaster Declaration FEMA 1079-DR-WA. It is understood that no final dollar figure is committed to at the time that this agreement is executed, but that financial commitments will be made by amendments to the project application as Damage Survey Reports are completed in the field and projects are authorized by state and federal officials. -' Pursuant to the FEMA-STATE AGREEMENT, the Federal Emergency Management Agency will contribute 75 percent of the eligible costs for any eligible project and 100 percent of the administrative costs, as provided for in subsection 4 of Section 6.0. Pursuant to the FEMA-STATE AGREEMENT, the DEPARTMENT will commit the required 12.5 percent match to any eligible project for the APPLICANT which has been identified under the Presidential Major Disaster Declaration FEMA 1079-DR-WA. The APPLICANT will commit the required 12.5 percent match to any eligible project for the APPLICANT which has been identified under the Presidential Major Disaster Declaration FEMA 1079-DR-WA. 6.0 PAYMENTS The DEPARTMENT, using funds granted for the purposes of the Presidential Major Disaster Declaration from FEMA and the state of Washington, shall issue payments to the APPLICANT in compliance with the Washington State Public Assistance Manual procedures as follows: 1 . Small project payments: Payments are made for all small projects to the APPLICANT upon submission and approval of an A-19-1 A Invoice Voucher to the DEPARTMENT. 2. Progress Payments: Progress payment of funds for costs already incurred on large projects may be made to the APPLICANT upon submission and approval of an A-19-1 A, Invoice Voucher from the APPLICANT to the DEPARTMENT. 3. Final Payment: Final payment will be made upon submission by the APPLICANT on form DEM-001 (2/89), STATEMENT OF DOCUMENTATION IN SUPPORT OF AMOUNT CLAIMED FOR FINANCIAL DISASTER ASSISTANCE upon completion of project(s), completion of all final inspections by the DEPARTMENT, and final approval by FEMA. Final payment may also be conditioned upon a financial review, if determined necessary by the DEPARTMENT or FEMA. Adjustments to the final payment may be made following any audits conducted by the Washington State Auditors Office or the United States Inspector General. FEMA-1079-DR-WA 1/96 Page 2 of 1 0 4. The APPLICANT is eligible to receive federal administrative monies, upon completion and closure of the project, for the costs of requesting, obtaining, and administering the disaster assistance grant based upon the following percentages of total eligible costs: For the first $100,000 of eligible costs, three percent of such costs; For the next $900,000, two percent of such costs; For the next $4,000,000, one percent of such costs; and For those costs over $5,000,000, one-half percent of such costs. 5. All payment requests shall be made on an A-19-1A form, State of Washington, Invoice Voucher. 6. Funding shall not exceed the total federal and state contributions eligible for the repair and restoration costs under this Presidential Major Disaster Declaration FEMA 1079-DR-WA. 7.0 RECORDS MAINTENANCE The APPLICANT shall maintain books, records, documents, and other evidence and accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this agreement. These records shall be subject at all reasonable times to inspection, review, or audit by DEPARTMENT personnel, other personnel duly authorized by the DEPARTMENT, the Office of the State Auditor or the United States Inspector General. The APPLICANT will retain all books, records, documents, and other material relevant to this agreement for six years after the agreement is closed and the Office of the State Auditor, the United States Inspector General, or any persons duly authorized by the DEPARTMENT shall have full access to and the right to examine any of said materials during said period. 8.0 AUDITS Audits shall be in accordance with the Single Audit Act of 1984. The APPLICANT is to procure audit services based on the following guidelines: 1. APPLICANT receiving less than $25,000 in federal funds in a fiscal year is exempt from compliance with the Single Audit Act. However, records must be available for review by the DEPARTMENT. .. 2. APPLICANT receiving $25,000 to $100,000 in total federal funds in a fiscal year may chose to have an audit made in accordance with Office of Management and Budget's (OMB) Circular A-128 or a program audit. FEMA-1079-DR-WA 1/96 Page 3 of 10 (, 3. APPLICANT receiving $100,000 or more in a fiscal year in total federal funds shall have a Single Audit made in accordance with OMS Circular A-1 28. As applicable, the APPLICANT must ensure the audit is performed in accordance with Generally Accepted Accounting Principles; Government Auditing Standards developed by the Comptroller General, dated July 1988; the OMS Compliance Supplement for Single Audits of State and Local Governments; and all state and federal laws and regulations governing the program. The audit of the APPLICANT'S program shall be conducted by the Office of the State Auditor. The APPLICANT must prepare a Schedule of Financial Assistance for federal funds that includes: grantor name, program name, federal catalog (CFDA) number, grantor agreement number, total award amount, beginning balance, current year revenues, current year expenditures and ending balance. The APPLICANT shall maintain its records and accounts in such a way as to facilitate the DEPARTMENT's audit requirements, and ensure that Subcontractors also maintain records which are auditable. The APPLICANT is responsible for any audit exceptions incurred by its own organization or that of its Subcontractors. The DEPARTMENT reserves the right to recover from the APPLICANT disallowed costs resulting from the final audit. The APPLICANT is responsible for sending the audit report to the DEPARTMENT's Internal Audit Manager as soon as it is available, but no later than thirteen months after the end of the APPLICANT's fiscal year. Responses to previous management findings and disallowed or questioned costs shall be included with the audit report. The APPLICANT will respond to the DEPARTMENT's requests for information or corrective action concerning audit issues within 30 days of the date of the request. The APPLICANT shall include these requirements in any subcontracts. 9.0 RECOVERY OF FUNDS In the event that the APPLICANT fails to complete the project(s), fails to expend or is over advanced federal funds in accordance with federal or state disaster assistance laws or programs, or is found by audit or investigation to be owing to the state, the DEPARTMENT reserves the right to recapture funds in accordance with federal or state laws and requirements. Repayment by the APPLICANT of agreement funds under this recovery provision shall occur within 30 days of demand. In the event that the DEPARTMENT is required to institute legal proceedings to enforce this recovery provision, the DEPARTMENT shall be entitled to its costs thereof, including reasonable attorney fees. FEMA-1 079-DR-W A 1/96 Page 4 of 1 0 The APPLICANT shall be responsible for pursuing recovery of monies paid under this agreement in providing disaster assistance against any party that might be liable, and further the APPLICANT shall cooperate in a reasonable manner with the State and the United States in efforts to recover expenditures under this agreement. In the event the APPLICANT obtains recovery from a responsible party, the APPLICANT shall first be reimbursed its reasonable costs of litigation from such recovered funds. The APPLICANT shall pay to the state the proportionate state and federal share of all project funds recovered in excess of costs of litigation. 10.0 CONFLICT OF INTEREST No officer or employee of the DEPARTMENT; no member, officer, or employee of the APPLICANT or its designees or agents; no member of the governing body of the jurisdiction in which the project is undertaken or located; and no other official of such locality or localities who exercises any functions or responsibilities with respect to the project during his or her tenure, shall have any personal or pecuniary gain or interest, direct or indirect, in any contract, subcontract, or the proceeds thereof, for work to be performed in connection with the project assisted under this agreement. The APPLICANT shall incorporate, or cause to incorporate, in all such contracts or subcontracts, a provision prohibiting such interest pursuant to the purpose of this provision. 11.0 POLITICAL ACTIVITY No portion of the funds provided herein shall be used for any partisan political activity or to further the election or defeat of any candidate for public office or influence the approval or defeat of any ballot issue. 12.0 ASSIGNMENT This Agreement, and any claim arising under this agreement, is not assignable or delegable by the APPLICANT either in whole or in part. 13.0 SUBCONTRACTS FOR ENGINEERING SERVICES In the event that the APPLICANT subcontracts for engineering services, the APPLICANT shall require that the engineering firm be covered by errors and omissions insurance in an amount not less than the amount of the firm's subcontract. If the firm is unable to obtain errors and omissions insurance, the firm shall post a bond with the APPLICANT for the benefit of the APPLICANT for not less than the amount of its subcontract. Such insurance or bond shall remain in effect for the entire term of the subcontract. The s,ubcontract shall provide that cancellation or lapse of the bond or insurance during the term of the subcontract shall constitute a material breach of the subcontract and cause for subcontract termination. The APPLICANT shall cause the subcontractor to provide it with a 30 day notice of cancellation issued by the insurance company. FEMA-1 079-DR-W A 1/96 Page 5 of 10 14.0 AMENDMENTS This agreement contains the terms and conditions agreed to by the DEPARTMENT and the APPLICANT. Any additional terms and conditions imposed by the Federal Emergency Management Agency or the DEPARTMENT will be incorporated into an amendment. Such amendments shall not be binding unless they are in writing and signed by persons authorized to bind the parties. No other understandings, oral or otherwise, regarding the subject matter of this agreement shall be deemed to exist or to bind any of the parties hereto. 15.0 APPEALS Consistent with the Code of Federal Regulations, 44 CFR Chapter 1, Section 206.206, the APPLICANT may appeal any determination previously made related to the federal assistance for the APPLICANT. The APPLICANT'S appeal shall be made in writing and submitted to the DEPARTMENT within 60 days after receipt of notice of the action which is being appealed. The appeal shall contain documented justification supporting the APPLICANT'S position. Upon receipt of an APPLICANT'S appeal, the DEPARTMENT will review the material submitted, make such additional investigations as necessary, and shall forward the appeal with a written recommendation to the FEMA within 60 days. Within 90 days following receipt of the appeal, FEMA shall advise the DEPARTMENT, in writing, as to the disposition of the appeal or the need for additional information. If the decision is to grant the appeal, then FEMA will take the appropriate implementing action. 16.0 GOVERNING LAW AND VENUE This agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of Washington. Venue of any suit between the parties arising out of this agreement shall be the Superior Court of Thurston County, Washington. 17 .0 SAVINGS The DEPARTMENT may unilaterally terminate all or part of this agreement, may reduce its scope of work or decrease the percentage of matching costs, if there is a reduction in funds by the source of those funds, and if such funds are the basis for this agreement. 18.0 TERMINATION Except as otherwise provided in this Agreement, either party may terminate this Agreement upon giving thirty (30) days written notice to the other party. In the event of termination of this Agreement, the terminating party shall be liable only for performance of services rendered prior to the effective date of termination. FEMA-1 079-DR-W A 1/96 Page 6 of 1 0 .. ~ 19.0 WAIVERS No conditions or provisions of this agreement can be waived unless approved by the DEPARTMENT in writing. The DEPARTMENT's failure to insist upon strict performance of any provision of the agreement, or to exercise any right based upon a breach thereof, or the acceptance of any performance during such breach, shall not constitute a waiver of any right under this agreement. 20.0 INDEMNIFICATION Each party shall protect and hold harmless the other party from and against all claims, suits or actions arising from any negligent act or omission of that party's employees, agents and/or authorized subcontractor(s) while performing under the terms of this agreement. The APPLICANT, and its employees, contractor(s) and subcontractor(s) shall hold harmless the United States, and its agents and employees from and against all claims, damages, losses and expenses arising out of or resulting from the approved work, regardless of whether or not such claim, damage, loss or expense is caused entirely or in part by the United States. 21.0 APPLICANT ASSURANCES In addition to the Terms and Conditions specified herein, the APPLICANT also agrees to the following assurances: 1. The APPLICANT hereby assures and certifies that they will comply with state and federal laws and regulations, including but not limited to the provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended; 44 CFR Part 13, 44 CFR Part 206, and the Washington State Public Assistance Manual dated December 1995. These regulations and requirements are hereby incorporated into this agreement by reference. 2. The emergency or disaster relief reimbursement requested herein does not or will not duplicate funds received for the same loss from any other source. 3. The APPLICANT will operate and maintain the facilities for which funds are received under this agreement in accordance with the minimum standards as may be required or prescribed by the applicable federal, state and local agencies for the maintenance and operations of such facilities. FEMA-1 079-DR-W A 1/96 Page 7 of 10 .. 4. The APPLICANT will, for any repairs or construction financed herewith, comply with applicable standards of safety, decency and sanitation and in conformity with applicable codes, specifications and standards, and will evaluate the hazards in areas in which the proceeds of the grant are to be used and take appropriate action to mitigate such hazards, including safe land use and construction practices. 5. The APPLICANT will not enter into a contract with a contractor who is on the General Services Administration (GSA) Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs. 6. The APPLICANT will comply with minimum wage and maximum hours provisions of the Federal Fair Labor Standards Act. 7. The APPLICANT shall comply with all applicable federal and state non- discrimination laws, regulations, and policies. No person shall, on the grounds of age, race, creed, color, sex, religion, national origin, residence, marital status, or disability (physical, mental, or sensory) be denied the benefits of, or otherwise be subjected to discrimination under any project, program, or activity, funded, in whole or in part, under this Agreement. A violation of this provision is a material breach and cause for termination under Section 18.0 of this Agreement. 8. . The APPLICANT shall utilize certified minority-owned and women-owned businesses (MWBEs) to the maximum extent possible in the performance of this agreement. 9. The APPLICANT does not have to comply with the provisions of the Davis- Bacon Act for grants made under the disaster assistance program. However, if FEMA and any other Federal agency are a party to a contract for the repair or restoration of a public building or public facility, the contract would have to comply with the Davis-Bacon Act. 10. Eligible private non-profit organizations agree to obtain an independent audit in accordance with the Single Audit Act requirements. All costs of said audit are the responsibility of the private non-profit organization. Additional funds beyond those provided in the administrative allowance are not available for payment of said audit. Eligible private non-profit organizations must comply with the audit requirements of OMB Circular A-133, Audits of Institutions of Higher Education and Other Nonprofit Organizations. FEMA-1079-DR-WA 1/96 Page 8 of 10 22.0 OWNERSHIP OF PROJECT/CAPITAL FACILITIES The DEPARTMENT makes no claim to any capital facilities or real property improved or constructed with funds under this Agreement, and by this grant of funds does not and will not acquire any ownership interest or title to such property of the APPLICANT. The APPLICANT shall assume all liabilities arising from the ownership and operation of the project and agrees to hold the DEPARTMENT and the state of Washington harmless from any and all causes of action arising from the ownership and operation of the project. 23.0 ACKNOWLEDGEMENTS The APPLICANT shall include language which acknowledges the funding contribution of the DEPARTMENT and the Federal Emergency Management Agency (FEMA) to this project in any release or other publication developed or modified for, or referring to, the project. 24.0 INSURANCE The APPLICANT will comply with the insurance requirements of Public Law 93-288, as amended, and obtain and maintain any other insurance as may be reasonable, adequate, and necessary to protect against further loss to any property which was replaced, restored, repaired or constructed with this assistance. 25.0 SEVERABILITY In the event any term or condition of this agreement or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other terms, conditions, or applications of this agreement which can be given effect without the invalid term, condition, or application. To this end, the terms and conditions of this agreement are declared severable. 26.0 ORDER OF PRECEDENCE In the event of an inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: a. Applicable Federal and State statutes and regulations; b. Applicable approved Damage Survey Reports; and c. Any other provisions of the agreement whether incorporated by reference or otherwise. 27.0 AGREEMENT ADMINISTRATION APPLICANT's representative shall be Ken Ridout The DEPARTMENT's representative shall be Donna Voss. FEMA-' 079-DR-WA , /96 Page 9 of 10 28.0 ENTIRE AGREEMENT This Agreement sets forth the entire Agreement between the parties with respect to the subject matter hereof. Commitments, warranties, representations and understandings or agreements not contained, or referred to, in this Agreement or written amendment hereto shall not be binding on either party. Except as may be expressly provided herein, no alteration of any of the terms or conditions of this Agreement will be effective without the written consent of both parties. IN WITNESS WHEREOF, the DEPARTMENT and the APPLICANT have executed this agreement as of the date and year written be Ostrowski Gregory P. Barl w, Maj The Adjutant General Washington Military Department DATE: J,/;(/f~ DATE: February 6, 1996 APPROVED AS TO FORM ~f)(~ Assistant Attorney Gen ral APPLICANT - PLEASE PRINT THE FOllOWING TO EXPEDITE PROCESSING DATE:_ J{C:;/erb Federal Tax ID No. (TIN): 91-6001266 State Emergency Management Camp Murray Tacoma, Washington 98430-5122 Organization: City of Port Angeles (360) 923-4577 Address: 321 E. Fifth Street P. O. Box 1150 Port Angeles, WA 98362 CFDA: 83.516 Phone: 360-457-0411 FEMA-1079-DR-WA 1/96 Page 1 0 of 1 0 . DISASTER ASSISTANCE APPLICATION DEM - 131 Application Identifier: State Number: 1'1tl. f .,. (,//0 .11~ Federal Number: FEMA-1079-WA Federal Catalog Number: 83.516 Title: Disaster Assistance Declaration Date: January 3, 1996 Applicants Project Application Number: ()01 - 5,-$- 'J ~ ';- Legal Applicant Recipient - Applicants Name CITY OF PORT ANGELES - Address 321 EAST FIFTH STREET - Street / P.O. Box PO Box 1150 - County . CLALLAM - City PORT ANGELES - Zip Code 98362 Applicant Agent: . - Name : KEN RIDOUT Phone Number: - Title . DEPUTY DIRECTOR OF ~ Work (360 ) 417-4802 . PUB L T (1 T...ICffi K~ Home- (360 ) 452-97-27 ,~~ '" Signature ~ . -/" Date: 1/22/96 7 V f Type of Applicant: A - State F - Higher Educational Institution B - County G - Indian Tribe C - City H - Private NonProfit D - School District I - Other (Specify) E - General Purpose District Enter Appropriate Letter C Congressional District Number: 6 24 - State Legislative District Number: Governor's Authorized Representative: Signature: ~~ Date: {~ lCZcgL