HomeMy WebLinkAbout5.1089 Original ContractH12
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0- D �2 al ORIGINAL
November 15, 2010
AGREEMENT BETWEEN THE CITY OF PORT ANGELES
AND CLALLAM COUNTY
FOR THE DESIGN OF IN- STREAM HABITAT AND FISH PASSAGE
IMPROVEMENTS TO VALLEY CREEK
THIS AGREEMENT made and entered into by and between the City of Port Angeles. a non
charter code city of the state of Washington, hereinafter called the "City" and Clallam
County. Washington hereinafter called the "County
WITNESSETH
WHEREAS, the City proposes to proceed with Valley Creek Restoration Phase 3 Design
Project for the purpose of remeandering about 1000 feet of stream from 9th Street north to
5 Street to improve the stream gradient, pool riffle ratio, stream velocity, and sinuosity,
the removal of 400 feet of culvert, the construction of 100 feet of culvert, and retrofit
approximately 850 feet of existing culvert under Valley Street with four fish ladders set
within vaults to provide in- stream habitat and fish passage improvements and flood and
erosion control to Valley Creek located in Port Angeles. Washington, hereinafter referred
to as "Project and,
WHEREAS, the City submitted a grant application to the State of Washington and was
awarded funding pursuant to a grant provided from the Salmon Funding Accounts of the
State of Washington and administered by the Recreation and Conservation Office,
Project #09 -1531N for final project design; and
WHEREAS, the City shall award a consultant contract for the final design of the
Project; and
WHEREAS, the City currently desires the County to manage a consultant to complete
the final design plans and permits required for the Project; and
WHEREAS, the County and the City can achieve cost savings and benefits in the
public's interest by having the County serve as the managing agency for the design of this
Project.
NOW, THEREFORE, it is hereby covenanted and agreed by and between the parties
hereto as follows:
1. SCOPE OF WORK
The scope of professional services to be performed and the results to be achieved by the
County shall be as detailed in the attached Exhibit A and shall include all services and
1
material necessary to accomplish the County's management of the Project.
The City may review the County's management of the Project, and if it is not satisfactory,
the County shall make such changes as may be required by the City, which changes shall
be in accordance with the standards of the engineering profession and in compliance with
applicable federal, state, and local laws.
The County agrees that all management services performed under this Agreement shall be
in accordance with the standards of the engineering profession and in compliance with
applicable federal, state and local laws.
The Scope of Work may be amended upon written approval of both parties.
2. PAYMENT
The CITY shall pay the County as set forth in this section of the Agreement. Such
payment shall be full compensation for work performed, services rendered, and all labor,
materials, supplies, equipment and incidentals necessary to complete the work.
A. Payment shall be on the basis of the County's cost for actual labor, overhead and
profit plus County's direct no -salary reimbursable costs as set forth in the attached
Exhibit C.
B. The County shall submit invoices to the City on a monthly basis. Invoices shall detail
the work, hours, employee name, and hourly rate; shall itemize with receipts and
invoices the non -salary direct costs; shall indicate the specific task or activity in the
Scope of Work to which the costs are related; and shall indicate the cumulative total
for each task.
C. The City shall review the invoices and make payment for the percentage of the project
that has been completed less the amounts previously paid.
D. The County's invoices are due and payable within 30 days of receipt. In the event of
a disputed billing, only the disputed portion will be withheld from payment.
E. Final payment for the balance due to the County will be made after the completion of
the work and acceptance by the City.
F. Unless otherwise agreed to in writing by both parties, the County's total
compensation and reimbursement under this Agreement; including labor, direct non
salary reimbursable costs and outside services, shall not exceed the maximum sum of
$18,000.00.
2
3. INDEMNIFICATION AND HOLD HARMLESS
A. Each Party shall protect and hold harmless the other party, its officers, officials,
employees, and/or agents from and against all claims, suits or actions arising from an
intentional or negligent act or omission of that party, its officers, officials, employees,
and/or agents while performing under the terms of this Agreement. In the event of a
claim for damages of any nature whatsoever arising out of the performance of this
Agreement caused by the concurrent actions of the parties, their officers, officials,
employees, and/or agents, each party shall provide its own defense and be liable for
damages, costs, fees or other amounts only to the extent of its individual actions that are
the basis for the imposition of liability or damages. The provisions of the section shall
survive the termination of this Agreement.
B. Each party agrees that its obligations under this Section extend to any claim,
demand, and/or cause of action brought by or on behalf of any of its employees or agents.
The foregoing indemnity is specifically and expressly intended to constitute a waiver of
each party's immunity under Washington's Industrial Insurance Act, RCW Title 51, as
respects the other party only, and only to the extent necessary to provide each party a full
and complete immunity of claims made by the other party's employees. The parties
acknowledge that these provisions were specifically negotiated and agreed upon by them.
C. The provisions of this Section shall survive the expiration or earlier termination of
this Agreement with regard to any event that occurred prior to or on the date of such
expiration or earlier termination.
4. INSURANCE
A. All employees of the City working on the Project shall be covered under the City's
own insurance policy. All employees of the County will work under the County's own
insurance policy.
5. DURATION AND TERMINATION
A. This Agreement shall remain in effect until final acceptance of the Project by the
parties. All reimbursable project work shall be completed by 06/11/2011, subject to the
early termination provisions below, the time extension allowance described in Exhibit B,
and or written authonzation by the City.
B. If a party fails to comply with any material provision(s) of this Agreement the
other party may terminate this Agreement, in whole or in part, for default upon thirty (30)
days written notice to the defaulting party. Any extra costs, expenses or damages
incurred by the non defaulting party as a result of the termination for default shall be
3
borne exclusively by the party in default. The rights and remedies of this provision are in
addition to any other rights or remedies provided to the non defaulting party by law or
under this Agreement. Any termination of this Agreement for default shall not relieve
the defaulting party of any obligation which may arise out of work already performed
prior to such termination.
C. If expected or actual funding under the grant program is withdrawn, reduced or
limited in any way prior to the completion of the Project, the City may, with thirty (30)
days written notice to the County, terminate, in whole or in part, this Agreement. Prior to
such termination for lack of funding the parties shall meet and confer to discuss and
determine how completion of the Project, if possible, may occur.
6 OTHER PROVISIONS
A. This Agreement contains the entire written agreement of the parties and
supersedes all prior discussions. This Agreement may be amended only in writing,
signed by the authorized representative of each party.
B. Nothing contained herein is intended to, nor shall be construed to; create any
rights in any party not a signatory to this Agreement, or to form the basis for any liability
on the part of the City, the County, or their officials, employees or representatives, to any
party not a signatory to this Agreement.
C. Waiver of any default or breach of this Agreement shall not be deemed to be a
waiver of any other prior or subsequent default or breach and shall not be construed to be
a modification of the terms of this Agreement unless stated to be such through written
agreement of both parties.
D. If any provision of this Agreement is held invalid or unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall not be affected thereby and
shall continue in full force and effect if such remainder would continue to serve the
purposes and objectives of the parties.
E. Each party shall maintain records that accurately reflect the actions taken and
services provided pursuant to this Agreement, and all direct and indirect costs incurred in
the performance of this Agreement. Such records and documents shall be subject to
inspection, review or audit by Clallam County, the City, and/or federal /state and local
officials so authorized by law, at the requesting party's sole expense. Such records shall
be made available for inspection or audit during the record keeper's regular business
hours within a reasonable time after the record keeper's receipt of the request for
inspection of the same. These rights and obligations shall exist during the performance
of this Agreement and continue for six (6) years, after the termination or natural
expiration of the Agreement, whichever first occurs.
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F. In the event of a contractual dispute between the parties regarding this
Agreement, the parties shall attempt to resolve the matter informally. If the parties are
unable to resolve the matter informally, the matter shall be forwarded for discussion to
the Project Manager Scott Johns for the City and Joseph Donisi, Engineer for the
County, or their respective designees. If this process fails to resolve the dispute within
thirty (30) days after such referral, the parties may agree to submit the matter to
mediation or to other alternative dispute resolution. If the parties agree to submit the
matter to alternate dispute resolution and the matter is not resolved, a party shall be
entitled to pursue any legal remedy available in a court of law.
G. In the event that either party deems it necessary to institute legal actions or
proceedings to enforce any right or obligation under this Agreement, the parties hereto
agree that any such action shall be initiated m Jefferson County Superior Court of the State of
Washington. This Agreement shall be interpreted and construed in accordance with the
laws of the State of Washington. The City hereby consents to the personal jurisdiction of
the Jefferson County Superior Court of the State of Washington.
7. CONTACT PERSON AND NOTICE
A. The parties to this Agreement shall each appoint a contact person or persons to act
as a project representative for the Project. These contact persons will meet on an "as
needed" basis to provide guidance for the Project and serve as a coordination body
between the parties.
B. All notices required to be given under the terms of this Agreement shall be sent in
writing to the parties at the addresses below:
CITY OF PORT ANGELES
Scott Johns
P.O. Box 1150
321 East 5 Street
Port Angeles, WA 98362
5
CLALLAM COUNTY
Joseph Donisi
223 E. 4 St., Suite 6
Port Angeles, WA 98362 -3015
CITY OF PORT ANGELES
By:
Kent My rs, City
Date: (g�13/aolo
Attest:
Jo
e:
Approved as to form:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date last written below.
sa Hurd, City Clerk
v
William E. Bloor, City Attorney
BOARD OF CL LAM COUNTY
COMMISSI RS
Howard V. Doherty, Jr., Chair
Date: lJOY' ber✓ 2 .3 20 v
Attest:
1 ;134A- 14 N
Trish Holden, CMC
Clerk of the Board
Approved as to form:
Doug Jenskn
Deputy Pi os
uting Attorney
Exhibit A
Scope of Services
Valley Creek Restoration Phase 3 Design
Project Management and Grant Administration
The City has received a grant from the Salmon Funding Accounts of the State of
Washington for Valley Creek Restoration Phase 3 Design. The Project Agreement
between Washington State Recreation and Conservation Office (RCO) and the City of
Port Angeles defines the terms of the grant. Clallam County will manage the design of
the Project as defined by the PSAR Project Agreement attached as Exhibit B.
Assumptions:
The City will take the lead on the Project, and will hire and pay the design consultant.
The City will take the lead on stakeholder outreach and stakeholder meetings. At the
City's request, Clallam County may play a supportive role in stakeholder outreach and
meetings.
Task 1: Project Management
The County shall manage the design project, and provide management to complement
the efforts of the City's lead on this project.
11 PROJECT MEETINGS AND REPORTS
A. The County will keep the City advised as to the progress of the final design
and application status of required permits. The County shall provide the city with
monthly progress reports in regards to permit application review and reimbursement
request. The County shall attend monthly project progress meetings with the City and
provide the City with a review of submitted invoices and recommend that the City
make payments to the consultant for completed services.
B. The County shall manage and track budget costs and ensure that any cost
issues or overruns in excess of the budgeted amount be discussed to determine which
party, if any, shall be financially responsible.
C. The City shall notify the County, in writing, of any design changes it wishes to
make to the bid plans and specifications that affect the City's Project. Prior to the
implementation of any design changes requested by the City, the parties shall meet
and confer to determine the cost of such changes to the Project.
D. The County will notify the City of any changes in the work required by the
County which substantially change the nature of the Project work and shall obtain the
A -1
City's approval of such changes, with such approval not being unreasonably withheld by
the City. The County shall be financially responsible for contract changes that are solely
for the benefit of the County.
E. The City and the County shall be responsible for following all Federal, State and
local laws, rules and regulations in its own performance of work described herein.
F. The County shall upon completion or termination of this contract turn over to
the City all Plans, Specifications, Cost Estimate packages, permit materials and permit
applications and all other documents related to the project.
1.2 CONSULTANT SELECTION ASSISTANCE
A. The County shall, evaluate the consultants from the City's on -call roster; and
shall recommend to the City a qualified consultant to enter into an agreement to
provide the final design and permitting for the Project. The County shall furnish the
City with their review of proposals and recommend to the City the most qualified
consultant. The City shall award a contract to the most qualified and responsive
consultant for the Project, subject to all applicable laws and regulations.
13 CONSULTANT MANAGEMENT
A. The County shall manage the selected consultant through the completion of
the Plans, Specifications, and Cost Estimate packages for the Project. The County
shall manage the selected consultant's preparation of permit applications materials,
and review the selected consultant's permit application submittals. The County shall
review the consultant's invoices for services that have been performed, and upon
approval, submit to the City for payment.
TASK 2: Grant Administration
Work under this task includes preparing grant related record keeping, and reporting as
required by the Project Agreement. It also includes project administration for the
agreement between Clallam County and the City, including monthly meetings, billings,
and communication.
2.1 Project Administration
Billings Clallam County will submit to the City, for payment to the consultant
from the City, monthly bills for consultant services performed under this
contract. Staff costs per Exhibit C and documented direct project expenses
will be included.
Meetings with the City, either by teleconference, web conference or in person.
Travel to Port Angeles as needed.
2.2 Grant Reimbursement Requests
A -2
The County will provide the City with documentation of all reimbursable grant
expenditures, not more than once per month.
The City will prepare and submit all billing voucher packets to the RCO for
project #09 -153N for reimbursements to be made to the City.
2.3 Grant Reports
The County will provide details of accomplishments of the consultant, to the
City by the 31 of each month in which a billing is to be submitted and will
cover the entire period since the last bill.
Monthly billings will include a report on project accomplishments for the grant
period.
The County will prepare reports to RCO, including the Final Project Report, in
compliance with the Project Agreement. Draft reports shall be reviewed and
approved by the City before being submitted to RCO.
Task 3: Permitting support
The County shall manage and review the design consultant's permit application
submittal for a JARPA application, a SEPA checklist, USACOE permits, and other
documents needed for permit applications, and will coordinate with the City project
manager to ensure consultant's submittals are complete and accurate.
Exhibit C
Clallam County Labor Costs
Project Management and Grant Administration
Estimated Project Duration 7 Months 28 Weeks November, 2010 through May, 2011
Staff Position Hourly Rate 2010 Wages Estimated Hours Total
Engineer II $58.04 180 $10,447.20
Environmental Coordinator IV $60.98 72 $4,390.56
Assistant County Engineer $75.86 36 $2,730.96
$17,568.72
Hourly Rate reflects: Hourly Wage
Fnnge
Indirect Costs
Overhead
y WASHINGTON STATE
Recreation and
Conservation Office PSAR Project Agreement
Salmon Funding Accounts
Project Sponsor: Port Angeles City of Project Number: 09 1531 N
Project Title: Valley Creek Restoration Phase 3 Design Approval Date: 12/10/2009
A.
PARTIES OF THE AGREEMENT
This project grant agreement (agreement) is entered into between the State of Washington by and through the
Salmon Recovery Funding Board (SRFB), P.O. Box 40917, Olympia, Washington 98504 -0917 and City of Port
Angeles (sponsor), PO Box 1150, Port Angeles, WA 98362 and shall be binding on the agents and all persons acting
by or through the parties
B. PURPOSE OF AGREEMENT
This agreement sets out the terms and conditions by which a grant is made from the Salmon Funding Accounts of the
State of Washington. The grant is administered by the Recreation and Conservation Office (RCO) to the sponsor for
the project named above.
C. DESCRIPTION OF PROJECT
The subject project is described on the attached project summary.
D. PERIOD OF PERFORMANCE
The project reimbursement period shall begin on December 10, 2009 and end on June 10, 2011. No expenditure
made before or after this penod is eligible for reimbursement unless incorporated by written amendment into this
agreement or specifically provided for by funding board/office policy.
Requests for time extensions are to be made at least 60 days before the agreement end date. If a request for a time
extension is not made at least 60 days before the agreement end date, the request may be denied. If the request is
made after the agreement end date, the time extension will be denied.
E. ON -GOING OBLIGATION
The Project Sponsor's on -going obligation for the project shall be the same as the Period of Performance period
identified in Section D.
F. PROJECT FUNDING
The total grant award provided by the funding board /office for this project shall not exceed $139,000.00. The funding
board /office shall not pay any amount beyond that approved for funding of the project. The sponsor shall be
responsible for all total project costs that exceed this amount. The contribution by the sponsor toward work on this
project at a minimum shall be as indicated below:
Percentage Dollar Amount
SRFB Puget Sound Acq. Restoration 100.00% $139,000.00
Project Sponsor 0 00% $0.00
Total Project Cost 100.00% $139,000.00
G. RIGHTS AND OBLIGATIONS
All nghts and obligations of the parties to this agreement are subject to this agreement and its attachments, as now
existing or hereafter amended, including the sponsor's application, project summary, eligible reimbursement activities
report, and project milestones, all of which are incorporated herein.
Except as provided herein, no amendment/deletions of any of the terms or conditions of this agreement will be
effective unless provided in writing. All such amendment/deletions except those concerning the period of
performance, must be signed by both parties_ Period of performance extensions need only be signed by RCO's
director or designee.
The sponsor has read, fully understands, and agrees to be bound by all terms and conditions as set forth in these
documents.
H. COMPLIANCE WITH APPLICABLE STATUTES, RULES, AND RCFB -SRFB POLICIES
This agreement is governed by, and the sponsor shall comply with, all applicable state and federal laws and
regulations, including Chapter 77.85 RCW, Chapter 420 WAC, and published agency policies, which are incorporated
herein by this reference as if fully set forth
PSAR Project Agreement RCO #09 -1531N
Chapter 77.85 RCW, Chapter 420 WAC
PROJAGR.RPT
Salmon Funding Accounts
Page 1 of 14
I. SPECIAL CONDITIONS
Final Project Design
The final design process must address and resolve all substantial issues that may have been
raised in the permitting and stakeholder review process, so that all stakeholders agree on the
final plans. As with the preliminary design work, preparation of the final design must be done
under the supervision of a licensed Professional Engineer. (For certain projects; where liability
concerns are minimal, a licensed Professional Engineer may not be required. Consult RCO
staff if you are NOT planning to use 'a licensed Professional Engineer.)
Final Design tasks include the following:
1. Revision of preliminary design drawings
2. Preparation of additional detailed drawings as needed to clarify the design of specific
work items
3 Preparation of technical specifications to fully describe each part of the work.
4. Preparation of a final construction cost estimate
5. Preparation of contract bidding _documents and general contract conditions
Final Project Design concludes with a comprehensive and detailed set of project drawings,
technical specifications, and contract documents (if the project is to be advertised for contractor
bidding). An "Engineer's Estimate" of, construction cost must also be prepared by the designer,
for comparison with estimates provided by general contractors (bids).
J. FEDERAL FUND INFORMATION
(none)
K. PROJECT AGREEMENT REPRESENTATiVE
All wntten communications sent to the sponsor under this agreement will be addressed and delivered to:
Project Contact
Name Scott Johns
Title: Associate Planner
Address: 321 East 5th St
Port Angeles, WA 98362
L. ENTIRE AGREEMENT
PSAR Project Agreement RCO #09 -1531 N
Chapter 77.85 RCW, Chapter 420 WAC
PROJAGR.RPT
SRFB
Recreation and Conservation Office
Natural Resources Building
PO Box 40917
Olympia, Washington 98504-0917
These addresses shall be effective until receipt by one party from the other of a written notice of any change.
This agreement, with all amendments and attachments, constitutes the entire agreement of the parties. No other
understandings, oral or otherwise, regarding this agreement shall exist or bind any of the parties.
M. EFFECTIVE DATE
This agreement, for project 09- 1531N, shall be effective on signing by all parties. Reimbursements for eligible and
allowable costs incurred prior to the effective date and those costs incurred within the period of performance are
allowed only when this agreement is signed by all parties and an original is received by RCO. The period of
performance is identified in section D
Salmon Funding Accounts
Page 2 of 14
The signatory listed below represent and warrant their authority to bind the parties to this agreement
I
I
City of Port Angeles I
By:
Name: (printed) gL P i 1 r
n -i
Title: �A p /l Oar i, a
l
State of Washingto
On behalf of th on Re7 undin Board (SRFB)
By:
By:
PSAR Project Agreement RCO #09 -1531 N
Chapter 77 85 RCW, Chapter 420 WAC
PROJAGR.RPT
L
Kaleen Cottingham
Director, Recreation and Conservation Office
Pre approved as to form:
Is/
Assistant Attorney General
Date: 9��/
Date: 5l thv/O
Date: April 1, 2009
R ECEIVED
4PR 282010
RECREATION AND Ca^,SERNiON OFFICE
Salmon Funding Accounts
Page 3 of 14
WASHINGTON STATE
Recreation and
Conservation Office Standard Terms and Conditions
of the Project Agreement
Project Sponsor: Port Angeles City of Project Number: 09 -1531 N
Project Title: Valley Creek Restoration Phase 3 Design Approval Date: 12/10/2009
SECTION 1. CITATIONS, HEADINGS AND DEFINITIONS
A. Any citations referencing specific documents refer to the current version at the date of project agreement and /or any revisions in
the future
B. Headings used in this agreement are for reference purposes only and shall not be considered a substantive part of this
agreement
C Definitions. As used throughout this agreement, the following terms shall have the meaning set forth below
acquisition The gaining of rights of ownership by purchase, negotiation, or other means, of fee or less than fee interests in real
property.
agreement The accord accepted by all parties to the present transaction; this agreement, any supplemental agreements, any
amendments to this agreement and any intergovernmental agreements.
applicant Any agency or organization that meets the qualifying standards, including deadlines, for submission of an application
soliciting a grant of funds from the funding board.
application The forms and support documents approved by the funding board or its director for use by applicants in soliciting
project funds administered by RCO.
asset- Equipment purchased by the sponsor or acquired or transferred to the sponsor for the purpose of this agreement. This
definition is restricted to non -fixed assets, including but not limited to vehicles, computers or machinery.
cognizant or oversight agency Federal agency responsible for ensuring compliance with federal audit requirements.
contractor- Shall mean one not in the employment of the sponsor who is performing all or part of the eligible activities for this.
project under a separate agreement with the sponsor. The term "contractor" and "contractors" means contractor(s) in any tier:
corporate sponsor Any corporate form of business, including nonprofit organizations, under RCW 23, 23B and 24.
development/renovation Construction of or improvement of site or site facilities.
director The chief executive officer of the Recreation and Conservation Office or that person's designee.
elements and Items Components defined as part of the scope of work, see Section 26 B
funding board The board that authorized the funds in this agreement, either the Recreation and Conservation Funding Board
(RCFB) created under chapter 79A.25.110 RCW, or the Salmon Recovery Funding Board (SRFB) created under chapter
77.85.110 RCW.
landowner agreement A landowner agreement is required between a sponsor and landowner for projects located on land not
owned, or otherwise controlled, by the sponsor
milestone An important event with a defined deadline for an activity related to implementation of a funded project.
period of performance The time period specified in the agreement, under Section D, period of performance.
post evaluation summary One of the documents used to summarize and describe the actions undertaken in the agreement.
project The undertaking that is the subject of this agreement and that is, or may be, funded in whole or in part with funds
administered by RCO on behalf of the funding board.
RCO Recreation and Conservation Office The state office that provides administrative support to the Recreation and
Conservation Funding Board and Salmon Recovery Funding Board. RCO includes the director and staff; created by Chapters
79A.25.110 and 79A.25.150 RCW and charged with administering this agreement by Chapters 77.85.110 and 79A25.240 RCW.
reimbursement Payment of eligible and allowable costs that have already been paid by the sponsor per the terms of the
agreement.
restoration /enhancement Bringing a site back to its original function as part of a natural ecosystem or improving the ecological
functionality of a site.
sponsor The eligible applicant who has been awarded a grant of funds and is bound by this executed agreement; includes its
officers, employees, agents and successors.
SECTION 2. PERFORMANCE BY THE SPONSOR
The sponsor shall undertake the project as described in this agreement, post evaluation summary, the sponsor's application, and in
accordance with the sponsor's proposed goals and objectives described in the application or documents submitted with the
application, all as finally approved by the funding board. All submitted documents are incorporated by this reference as if fully set forth
herein. The Order of Precedence is covered in Section 34.
Timely completion of the project is important Failure to meet critical milestones or complete the project, as set out in this agreement,
is a material breach of the agreement.
PSAR Project Agreement RCO #09 -1531N
Chapter 77.85 RCW, Chapter 420 WAC
PROJAGR.RPT
Salmon Funding Accounts
Page 4 of 14
SECTION 3. ASSIGNMENT
Neither this agreement, nor any claim arising under this agreement, shall be transferred or assigned by the sponsor without prior
written consent of the funding board.
SECTION 4. RESPONSIBILITY FOR PROJECT
While the funding board undertakes to assist the sponsor with the project by providing a grant pursuant to this agreement, the project
itself remains the sole responsibility of the sponsor. The funding board undertakes no responsibilities to the sponsor, or to any third
party, other than as is expressly set out in this agreement. The responsibility for the implementation of the project, is solely that of the
sponsor, as is the responsibility for any claim or suit of any nature by any third party related in any way to the project.
SECTION 5. INDEMNIFICATION
To the fullest extent permitted by the law, the sponsor expressly agrees to and shall indemnify, defend and hold harmless the State
and its agencies, officials, agents and employees from and against all claims, actions, costs, damages, or expenses of any nature
arising out of or incident to the sponsor's or any contractor's performance or failure to perform the agreement. Sponsor's obligation to
indemnify, defend and hold harmless also includes any claim by sponsor's agents, employees, representatives or any contractor or its
employees. Sponsor's obligation to defend includes payment of any costs or attorneys' fees.
Sponsor's obligation shall not include such claims that may be caused by the sole negligence of RCO, its officials, agents, and
employees If the claims or damages are caused by or result from the concurrent negligence of (a) RCO, its agents or employees and
(b) the sponsor, its contractors, agents, or employees, this indemnity provision shall be valid and enforceable only to the extent of the
negligence of the sponsor or its contractors, agents, or employees. The sponsor expressly agrees to waive his /her immunity under
Title 51 RCW to the extent required to indemnify, defend, and hold harmless the State and its agencies, officials, agents or
employees.
SECTION 6. INDEPENDENT CAPACITY OF THE SPONSOR
The sponsor and its employees or agents performing under this agreement are not officers, employees or agents of the funding board
or RCO. The sponsor will.not hold itself out as nor claim to be an officer, employee or agent of RCO, a funding board or of the state of
Washington, nor will the sponsor make any claim of right, privilege or benefit which would accrue to an employee under Chapters
41.06 or 285 RCW.
The sponsor is responsible for withholding and /or paying employment taxes, insurance, or deductions of any kind required by federal,
state, and /or local laws.
SECTION 7. CONFLICT OF INTEREST
Notwithstanding any determination by the Executive Ethics Board or other tribunal, RCO may, in its sole discretion, by written notice to
the sponsor terminate this agreement if it is found after due notice and examination by RCO that there is a violation of the Ethics in
Public Service Act, Chapter 42.52 RCW; or any similar statute involving the sponsor in the procurement of, or performance under, this
agreement
In the event this agreement is terminated as provided above, RCO shall be entitled to pursue the same remedies against the sponsor
as it could pursue in the event of a breach of the agreement by the sponsor. The rights and remedies of RCO provided for in this
clause shall not be exclusive and are in addition to any other rights and remedies provided by law.
SECTION 8. ACKNOWLEDGMENT AND SIGNS
A. Publications The sponsor shall include language which acknowledges the funding contribution of the applicable grant program to
this project in any release or other publication developed or modified for, or refemng to, the project.
B. Signs. The sponsor also shall post signs or other appropriate media at project entrances and other locations on the project which
acknowledge the applicable grant program's funding contribution, unless exempted in funding board policy or waived by the
director
C. Ceremonies. The sponsor shall notify RCO no later than two weeks before a dedication ceremony for this project. The sponsor
shall verbally acknowledge the applicable grant program's funding contribution at all dedication ceremonies.
D. Federally Funded Projects. When issuing statements, press releases, requests for proposals, bid solicitations, and other
documents describing a project funded in whole or in part with federal money provided for in this grant, sponsors shall clearly
state
1 The percentage of the total costs of the project that is financed with federal money;
2 The dollar amount of federal funds for the project; and
3. The percentage and dollar amount of the total costs of the project that is financed by nongovernmental sources.
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SECTION 9. COMPLIANCE WiTH APPLICABLE LAW
The sponsor will implement the agreement in accordance with applicable federal, state, and local laws, regulations and RCO and
funding board policies. 1
The sponsor shall comply with, and RCO is not responsible for determining compliance with, any and all applicable federal, state, and
local laws, regulations, and /or policies, including, but not limited to State Environmental Policy Act; industrial Insurance Coverage;
Architectural Barriers Act; permits (shoreline, Hydraulics Project Approval, demolition); land use regulations (critical areas ordinances,
Growth Management Act); federal and state safety and health regulations (Occupational Safety and Health
AdmrnistrationtiNashington industrial Safety and Health Act); and Buy American Act.
Endangered Species
For habitat restoration projects funded in part or whole with federal funds administered by the SRFB the sponsor shall not commence
with clearing of ripanan trees or in -water work unless either the sponsor has complied with 50 CFR 223.203 (b)(8), limit 8 or until an
Endangered Species Act consultation is finalized in writing by the National Oceanic and Atmosphenc Administration. Violation of this
requirement may be grounds for terminating this project agreement. This section shall not be the basis for any enforcement
responsibility by RCO.
1
Nondiscrimination Laws j
The sponsor shall comply with all applicable federal, state, and local nondiscrimination laws and /or policies, including but not limited
to the Americans with Disabilities Act; Civil Rights Act; and the Age Discrimination Act. In the event of the sponsor's noncompliance
or refusal to comply with any nondiscrimination law or policy, the agreement may be rescinded, cancelled, or terminated in whole or in
part, and the sponsor may be declared ineligible for further grant awards from the funding board. The sponsor is responsible for any
and all costs or liability arising from the sponsor's failure to so comply with applicable law.
1
Prevailing Wage
The sponsor agrees to pay the prevailing rate of wage to all workers, laborers, or mechanics employed in the performance of any part
of this contract when required by state law to do so, and to comply with the provisions of, the Davis -Bacon Act, other federal laws and
Chapter 39.12 RCW, as amended, and the rules and regulations of the Department of Labor and Industries.
I
Restrictions on Grant Use
No part of any funds provided under this grant shall be used, other than for normal and recognized executive legislative relationships,
for publicity or propaganda purposes, or for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, radio,
television, or video presentation oesigned to support or defeat legislation pending before the U.S. Congress or any state legislature.
No part of any funds provided under this grant shall be used to pay the salary or expenses of any sponsor, or agent acting for such
sponsor, related to any activity designed to influence legislation or appropnations pending before the U.S. Congress or any state
legislature.
SECTION 10. ARCHAEOLOGICAL AND CULTURAL RESOURCES
The real property acquired, developed, renovated, or restored through this grant is subject to Governor's Executive Order (EO) 05-05
or compliance with Section 106 of the National Historic Preservation Act concerning the review, analysis, and consultation with the
Washington State Department of Archaeology and Histonc Preservation and affected Tribes for archaeological and cultural
resources. The funding board requires documented compliance with ED 05-05 or Section 106 of the National Historic Preservation
Act, whichever is applicable to the project In the event that a federal agency declines to consult, the sponsor shall comply with EO
05 -05. The sponsor must comply with EO 05-05 or the National Historic Preservation Act before initiating ground disturbing activity.
RCO will issue a notice to proceed (if applicable) when appropnate documentation has been received. RCO will not reimburse for
construction related activity until the sponsor demonstrates compliance.
In the event that archaeological or historic materials are discovered during project activities, work in the location of discovery and
immediate vicinity must stop instantly, the area must be secured, and notification must be provided to the following' concerned Tribes'
cultural staff and cultural committees, RCO, and the State Department of Archaeology and Historic Preservation. In the event that
human remains are discovered dunng project activity, work in the location of discovery and immediate vicinity must stop instantly, the
area must be secured, and notification provided to the concerned Tnbe's cultural staff and cultural committee, ROO, State
Department of Archaeology, the coroner and local law enforcement in the most expeditious manner possible according to ROW
68.50.
SECTION 11. HAZARDOUS SUBSTANCES
A. Definition. "Hazardous substance," as defined in Chapter 70 1050,020 (11) RCW, means
1. Any dangerous or extremely hazaroous waste as defined in Chapter 70.105.010(5) and (6) RCW, or any dangerous or
extremely hazardous waste designated by rule pursuant to Chapter 70.105 RCW;
2. Any hazardous substance as defined in Chapter 70.105.010(14) RCW or any hazardous substance as defined by rule
pursuant to Chapter 70 105. RCW, i
3 Any substance that, on March 1, 1989, is !a hazardous substance under section 101(14) of the federal cleanup law, 42
U S.C. Sec. 9601(14);
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4 Petroleum or petroleum products; and
5 Any substance or category of substances, including solid waste decomposition products, determined by the director [or
director's designee) of the department of ecology by rule to present a threat to human health or the environment if released
into the environment
6 The term hazardous substance does not include any of the following when contained in an underground storage tank from
which there is not a release' Crude of or any fraction thereof or petroleum, if the tank is in compliance with all applicable
federal, state, and local law.
B Certification. The sponsor shalt inspect, investigate, and conduct an environmental audit of the proposed acquisition site for the
presence of hazardous substances and certify:
1 No hazardous substances were found on the site, or
2. Any hazardous substances found have been treated and /or disposed of in compliance with applicable state and federal
laws, and the site deemed "clean."
C. Responsibility. Nothing in this provision alters the sponsor's duties and liabilities regarding hazardous substances as set forth in
Chapter 70.105D RCW.
D. Hold Harmless. The sponsor will defend, protect and hold harmless RCO and any and all of its employees and /or agents, from
and against any and all liability, cost (including but not limited to all costs of defense and attomeys' fees) and any and all loss of
any nature from any and all claims or suits resulting from the presence of or the release or threatened release of hazardous
substances on the property being acquired.
SECTION 12. RECORDS MAINTENANCE
The sponsor shall maintain books, records, documents, data and other evidence relating to this agreement and performance of the
services described herein, including but not limited to accounting procedures and practices which sufficiently and properly reflect all
direct and indirect costs of any nature expended in the performance of this agreement. Sponsor shall retain such records for a period
of six years from the date RCO closes the project. At no cost, these records, including materials generated under the
agreement, shall be subject at all reasonable times to inspection, review or audit by RCO, personnel duly authorized by RCO, the
Office of the State Auditor, and federal and state officials so authorized by law, regulation or agreement
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation,
claims, or audit findings involving the records have been resolved.
SECTION 13. PUBLIC RECORDS
Sponsor acknowledges that the funding board is subject to chapter 42.56 RCW and that this agreement shall be a public record as
defined in chapter 42.56 RCW Additionally, in compliance with RCW 77.85.130 (8), sponsor agrees to disclose any information in
regards to expenditure of any funding received from the funding board.
SECTION 14. ACCESS TO DATA
In compliance with chapter 39.29 RCW, the sponsor shall provide access, when requested, to data generated under this agreement
to RCO, the Joint Legislative Audit and Review Committee, and the State Auditor at no additional cost This includes access to all
information that supports the findings, conclusions, and recommendations of the sponsor's reports, including computer models and
methodology for those models.
SECTION 15. TREATMENT OF ASSETS
A. Assets shall remain in the possession of the sponsor for the duration of the project or applicable grant program. When the
sponsor discontinues use of the asset(s) for the purpose for which rt was funded, RCO will require the sponsor to deliver the
asset(s) to RCO, dispose of the asset according to RCO policies, or return the fair market value of the asset(s) to RCO. Assets
shall be used only for the purpose of this agreement, unless otherwise provided herein or approved by RCO in writing.
B. The sponsor shall be responsible for any loss or damage to assets which results from the negligence of the sponsor or which
results from the failure on the part of the sponsor to maintain and administer that asset in accordance with sound management
practices.
SECTION 16. RIGHT OF INSPECTION
The sponsor shall provide right of access to the project to RCO, or any of its officers, or to any other authorized agent or official of the
state of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance,
and /or quality assurance under this agreement.
If a landowner agreement has been executed, it will further stipulate and define the funding board and RCO's right to inspect and
access lands acquired or developed with funding board assistance.
SECTION 17. STEWARDSHIP AND MONITORING
Sponsor agrees to perform monitoring and stewardship functions as stated in policy documents approved by the funding boards or
RCO. Sponsor further agrees to utilize, where applicable and financially feasible, any monitoring protocols recommended by the
funding board.
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SECTION 18. DEBARMENT CERTIFICATION FOR FEDERALLY FUNDED PROJECTS
'Lower tier participants' refer to any sponsor receiving a federal grant through RCO. Lower tier participants also refer to any grantee,
subgrantee, or contractor of any grantee or subgrantee from the original sponsor funded by RCO. In this section, the sponsor certifies
to RCO that neither they nor their subgrantees are suspended or debarred. Any grantee, subgrantee, or contractor of any grantee or
sungrantee from the original sponsor certifies to the sponsor directly.
For any federally funded projects, sponsors are required to follow any federal requirements. Furthermore any federal funding
requirements will be passed on to any other entity to whom the sponsor passes funds (also referred to as a lower tier participant).
The sponsor (prospective lower tier participant) certifies, by signing this agreement, that neither it nor its principals nor any other lower
tier participants are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency. The sponsor (prospective lower tier participant) shall provide
immediate written notice to RCO if at any time the prospective lower tier participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed circumstances.
Should the prospective lower tier participant enter into a covered transaction with another person at the next lower tier, the sponsor
(prospective lower tier participant) agrees by signing this agreement that it will verify that the person with whom it or its lower tier
participant intends to do business is not excluded or disqualified. The sponsor (prospective lower tier participant) will do this by:
A. Checking the federal Excluded Parties List System (www.epls.gov) for that person; or
B Collecting a certification from that person; or'
C Adding a clause or condition to the covered transaction with that person.
The sponsor (prospective lower tier participant) agrees by signing this agreement that it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this
covered transaction, unless authorized by the department or agency with which this transaction originated. A participant in a covered
transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred,
suspended, ineligible, or voluntarily excluded from covered transaction, unless it knows that the certification is erroneous.
SECTION 19. PROJECT FUNDING
A. Additional Amounts. The funding board shaihnot be obligated to pay any amount beyond the dollar amount as identified in this
agreement, unless an additional amount haslbeen approved in advance by the funding board or director and incorporated by
wntten amendment into this agreement.
B Before the Agreement. No expenditure made, or obligation incurred, by the sponsor before the effective date of this agreement
shall be eligible for grant funds, in whole or in part, unless specifically provided for by funding board policy, such as a waiver of
retroactivity or program specific eligible pre agreement costs. The dollar amounts identified in this agreement may be reduced as
necessary to exclude any such expenditure from reimbursement.
C After the period of performance. No expenditure made, or obligation incurred, following the period of performance shall be
eligible, in whole or in part, for grant funds hereunder. in addition any remedy the funding board may have under this
agreement, the grant amounts identified in this agreement shall be reduced to exclude any such expenditure from participation.
SECTION 20. PROJECT REIMBURSEMENTS
A Sponsors may only request reimbursement after eligible and allowable ccsts have already been paid and remitted to their
vendors.
Compliance and Payment. The obligation of RCO to pay any amount(s) under this agreement is expressly conditioned on strict
compliance with the terms of this agreement by the sponsor.
C Compliance and Retainage. RCO reserves the right to withhold disbursement of the final ten percent (10 of the total amount of
the grant to the sponsor until the project has been completed. A project is considered "complete" when.
1 All approved or required activities outlined in the agreement are done,
2 On -site signs are in place (if applicable);
3 A final project report is submitted to RCO,
4. Any other required documents are complete and submitted to RCO,
5. A final reimbursement request is submitted to RCO;
6. The completed project has been accepted by RCO;
7. Final amendments have been processed; and
8 Fiscal transactions are complete
D. Reimbursement Request Frequency. Sponsors, are encouraged to send RCO a reimbursement request at least quarterly.
Sponsors are required to submit a reimbursement request to RCO, at a minimum for each project at least once a year for
reimbursable activities occurring between July 1 and June 30 Sponsors must refer to current RCO policies and procedures
regarding reimbursement requirements.
B.
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B.
C.
SECTION 21. ADVANCE PAYMENTS
Advance payments of or in anticipation of goods or services to be provided under this agreement are limited to grants approved by
the SRFB and must comely with SRFB policy. See WAC 420 -12 -060 (5).
SECTION 22. RECOVERY OF PAYMENTS
In the event that the sponsor fails to expend funds under this agreement in accordance with state and federal laws, and /or the
provisions of the agreement, RCO reserves the right to recover grant award funds in the amount equivalent to the extent of
noncompliance in addition to any other remedies available at law or in equity.
The sponsor shall reimburse RCO for any overpayment or erroneous payments made under the agreement. Repayment by the
sponsor of such funds under this recovery provision shall occur within 30 days of demand by RCO. Interest shall accrue at the rate of
twelve percent (12 per annum from the time that payment becomes due and owing.
SECTION 23. COVENANT AGAINST CONTINGENT FEES
The sponsor warrants that no person or selling agent has been employed or retained to solicit or secure this agreement on an
agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide
established agents maintained by the sponsor for the purpose of securing business RCO shall have the right, in the event of breach
of this clause by the sponsor, to terminate this agreement without liability or, in its discretion, to deduct from the agreement grant
amount or consideration or recover by other means the full amount of such commission, percentage, brokerage or contingent fee.
SECTION 24. PROVISIONS APPLYING TO DEVELOPMENT/RESTORATION PROJECTS
The following provisions shall be in force only if the project described in this agreement is for development/restoration of land or
facilities for outdoor recreation, habitat conservation, or salmon recovery'
A Document Review and Approval. The sponsor agrees to submit one copy of all development/restoration or construction plans and
specifications to RCO for review. Review and approval by RCO will be for compliance with the terms of this agreement.
Contracts for Development or Restoration. Sponsor shall award all contracts for construction, development or restoration using
whatever method is appropriate and required for the sponsor.
Contract Change Order Only change orders that impact the amount of funding or changes to the scope of the project as
described to and approved by the funding board or RCO must receive prior written approval.
D Control and Tenure. The sponsor must provide documentation that shows appropriate tenure (land owner agreement, long term
lease agreement, easement, or fee simple ownership) for the land proposed for development or restoration The documentation
must meet current RCO requirements.
E. Nondiscrimination. Except where a nondiscrimination clause required by a federal funding agency is used, the sponsor shall
insert the following nondiscrimination clause in each contract for construction of this project
"During the performance of tins contract, the contractor agrees to comply with all
federal and state nondiscrimination laws, regulations and policies."
F. Use of Best Management Practices. Project sponsors are encouraged to use best management practices developed as part of
the Washington State Aquatic Habitat Guidelines (AHG) Program. The best management practices are described in three
documents: "Stream Habitat Restoration Guidelines: Final Draft', 2004; "Design of Road Culverts for Fish Passage 2003; and
"integrated Streambank Protection Guidelines 2002. These documents and other information can be found on the AHG website.
SECTION 25. PROVISIONS APPLYING TO ACQUISITION PROJECTS
The following provisions shall be in force only if the project described in this agreement is for the acquisition of interest in real property
(including easements) for outdoor recreation, habitat conservation, or salmon recovery purposes'
A. Evidence of Land Value. Before disbursement of funds by RCO as provided under this agreement, the sponsor agrees to supply
evidence to RCO that the cost of the property rights acquired has been established according to funding board policy.
B Evidence of Title The sponsor agrees to show the type of ownership interest for the property that has been acquired. This shall
be done before any payment of financial assistance.
C Legal Description of Real Property Rights Adquired. The legal description of the real property rights purchased with funding
assistance provided through this project agreement (and protected by a recorded conveyance of rights to the State of
Washington) shall be incorporated into the agreement before final payment
0 Conveyance of Rights to the State of Washington. Document securing long -term rights for the State of Washington. When real
property rights (both fee simple and lesser interests) are acquired, the sponsor agrees to execute an appropriate document
conveying certain rights and responsibilities to RCO, on behalf of the State of Washington. These documents include a Deed of
Right, Assignment of Rights, Easements and Leases. The sponsor agrees to use document language provided oy RCO, to
record the executed document in the County where the real property lies, and to provide a copy of the recorded document to
RCO. The document required will vary depending on the project type, the real property rights being acquired and whether or not
those rights are being acquired in perpetuity.
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1. Deed of Right. The Deed of Right conveys to the people of the state of Washington the ngnt to preserve, protect, and/or
use the property for public purposes consistent with the fund source. Sponsors shall use this document when acquiring real
property rights that include the underlying land. This document may also be applicable for those easements where the
sponsor has acquired a perpetual easement for public purposes
2. Assignment of Rights The Assignment of Rights document transfers certain rights such as access and enforcement to
RCO. Sponsors shall use this document when an easement or lease is being acquired for habitat conservation or salmon
recovery purposes. The Assignment of Rights requires the signature of the underlying landowner and must be incorporated
by reference in the easement document
3. Easements and Leases. The sponsor may incorporate required language from the Deed of Right or Assignment of Rights
directly into the easement or lease document, thereby eliminating the requirement for a separate document. Language will
depend on the situation, sponsor must obtain RCO approval on the draft language prior to executing the easement or lease.
Real Property Acquisition and Relocation Assistance
1. When federal funds are part of this agreement, the Sponsor agrees to comply with the terms and conditions of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat 1894 (1970) Public Law 91 -646, as
amended by the Surface Transportation and Uniform Relocation Assistance Act, PL 100 -17 -1987, and applicable
regulations and procedures of the federal agency Implementing that Act
2. When state funds are part of this agreement, the sponsor, if required by law, agrees to comply with the terms and conditions
of the Uniform Relocation Assistance and Real Property Acquisition Policy of the State of Washington, Chapter 8,26.010
ROW, and Chapter 468 -100 WAC.
3. Housing and Relocation. In the event that housing and relocation costs, as required by federal law set out in subsection (1)
above and /or state law set out in subsection (2) above, are involved in the execution of this project, the sponsor agrees to
provide any housing and relocation assistance required
F Buildings and Structures. In general, grant funds are to be used for outdoor recreation, habitat conservation, or salmon recovery.
Sponsors agree to remove or demolish ineligible structures. Sponsors must consult RCO regarding compliance with section 10
Archaeological and Cultural Resources before structures are removed or demolished.
G Archaeological and Cultural Resources. The sponsor agrees that any real property interests acquired under this agreement, if to
be developed in the future, is subject to section 10 (Archaeological and Cultural Resources) pnor to any ground disturbing
activity.
E.
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SECTION 26. RESTRICTION ON CONVERSION OF REAL PROPERTY AND /OR FACILITIES TO OTHER USES
The sponsor shall not at any time convert any reallproperty or facility acquired, developed, and /or restored pursuant to this agreement
to uses other than those purposes for which funds were approved without prior approval of the funding board in compliance with
apolicable statutes, rules, and funding board policies. ft is the intent of the funding board's conversion policy, current or as amended
in the future, that all real property or facilities acquired, developed and /or restored with funding assistance remain in the public domain
in perpetuity unless otherwise identified in the agreement or as approved by the funding board.
When a conversion has been determined to have occurred, the sponsor is required to remedy the conversion per established funding
board policies.
A. A conversion occurs when one or more of the following has taken place, whether affecting an entire site or any portion of a site
funded by the funding boards
1 Conveyance Property interests are conveyed for purposes inconsistent with the original grant request.
2. Conveyance to Ineligible Third Party. P interests are conveyed to a third party not otherwise eligible to receive grants
in the program from which funding was derived
3 Non eligible Uses. A use occurs that is inconsistent with the original grant request
4 Non eligible Facilities Non eligible facilities are developed within the project area.
5- Termination of Public Use When public use, as described in the original grant request, is temporarily or permanently
terminated or excluded.
6. Environmental Functions For habitat projects, if the property acquired, restored or enhanced no longer provides the
environmental functions for which funding board grants were onginally approved.
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B Changing a project's elements and items. When approved by the funding board or director, certain elements and items may be
deleted from the agreement without being considered a conversion. In the following Instances the board may authorize changes
without invoking the requirement to replace the elements and items. Such deletions are allowed when the funding board or
director determines that the elements and items are not needed or cannot be retained due to one or more of the following
conditions:
1. Obsolescence
2. Extraordinary vandalism
3. Acts of Nature
4 Designed life expectancy reached
5. Fire
6 Permit requirements that disallow specific elements
7 Reversion Order (National Trails System Act 8(d), 16 U.S.C. 1247(d); WAC 286 -27- 060(2)).
SECTION 27. CONSTRUCTION, OPERATION, USE AND MAINTENANCE OF ASSISTED PROJECTS
Sponsors must ensure that properties or facilities assisted with funding board funds, including undeveloped sites, are built, operated,
used, and maintained:
A. According to applicable federal, state, and local laws and regulations, including public health standards and building codes.
B. in a reasonably safe condition for the project's intended use.
C Throughout its estimated life so as to prevent undue deterioration.
D. In compliance with all federal and state nondiscrimination laws, regulations and policies.
Facilities open to the public must:
A. Be constructed and maintained to meet or exceed the minimum requirements of the most current local or state codes, Uniform
Federal Accessibility Standards, guidelines, or rules, including but not limited to: the International Building Code, the Americans
with Disabilities Act, and the Architectural Barriers Act, as updated.
B. Appear attractive and inviting to the public except for brief installation, construction, or maintenance periods.
C Be available for use at reasonable hours and times of the year, according to the type of area or facility.
SECTION 28. INCOME AND INCOME USE
A. Income.
1. Compatible source. The source of any income generated in a funded project or project area must be compatible with the
funding source and the agreement.
2. Fees. User and /or other fees may be charged in connection with land acquired or facilities developed with funding board
grants if the fees are consistent with the:
(a) Value of any service(s) furnished;
(b) Value of any opportunities furnished, and
(c) Prevailing range of public fees in the state for the activity involved.
Excepted are Firearms and Archery Range Recreation Program safety classes (firearm and /or hunter) for which a
facility/range fee must not be charged (Chapter 79A.25.210 RCW).
B. Income use Regardless of whether income or fees in a project work site (including entrance, utility corridor permit, cattle grazing,
timber harvesting, farming, etc.) are gained dung or after the reimbursement period cited in the agreement, unless precluded by
state or federal law, the revenue may only be used to offset:
1. The sponsor's matching funds;
2. The projects total cost
3 The expense of operation, maintenance, stewardship, monitoring, and /or repair of the facility or program assisted by the
funding board grant
4. The expense of operation, maintenance, stewardship, monitoring, and /or repair of other similar units in the sponsor's
system; and /or
5 Capital expenses for similar acquisition and /or development.
SECTION 29. PREFERENCES FOR RESIDENTS
Sponsors shall not express a preference for users of grant assisted projects on the basis of residence (including preferential
reservation, membership, and /or permit systems) except that reasonable differences in admission and other fees may be maintained
on the basis of residence. Even so, the funding board discourages the imposition of differential fees. Fees for nonresidents must not
exceed twice the fee imposed on residents. Where there is no fee for residents but a fee is charged to nonresidents, the nonresident
fee shall not exceed the amount that would be imposed on residents at comparable state or local public facilities.
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SECTION 30. PROVISIONS RELATED TO CORPORATE (INCLUDING NONPROFIT) SPONSORS
A corporate sponsor, including any nonprofit sponsor, shall.
A. Maintain corporate status with the state, ncluding registenng with the Washington Secretary of State's office, throughout the
sponsor's obligation to the project as iderihfied in the agreement.
B Notify RCO prior to corporate dissolution. Within 30 days of dissolution the sponsor shall name a qualified successor that will
agree in writing to assume any on -going project responsibilities A qualified successor is any party eligible to apply for funds in
the subject grant program and capable ofcompiying with the terms and conditions of this agreement RCO will process an
amendment transferring the sponsor's obligation to the qualified successor if requirements are met.
C Sites or facilities open to the public may not require exclusive use, (e.g., members only).
SECTION 31. LIABILITY INSURANCE REQUIREMENTS FOR FIREARMS AND ARCHERY RANGE SPONSORS
A. The sponsor of a firearms or archery range recreation project shall procure an endorsement, or other addition, to Iiability
insurance it may currently carry, or shall procure a new policy of liability insurance, in a total coverage amount the sponsor
deems adequate to ensure it will have resources to pay successful claims of persons who may be killed or injured, or suffer
damage to property, while present at the range facility to which this grant is related, or by reason of being in the vicinity of that
facility; provided that the coverage shall beat least one million dollars ($1,000,000) for the death of, or injury to, each person.
B. The liability insurance policy, including any ;endorsement or addition, shall name Washington State, the funding board, and RCO
as additional insured and shall be in a form approved by the funding board or director.
C. The policy, endorsement or other addition, or a similar liability Insurance policy meeting the requirements of this section, shall be
kept in force throughout the sponsor's obligation to the project as identified in this agreement
D. The policy, as modified by any endorsement or other addition, shall provide that the issuing company shall give written notice to
RCO not less than thirty (30) calendar days in advance of any cancellation of the policy by the insurer, and within ten (10)
calendar days following any termination of the policy by the sponsor.
E. The requirement of Subsection A through D,above shall not apply if the sponsor is a federal, state, or municipal government
which has established a program of self insurance or a policy of self insurance with respect to claims arising from its facilities or
activities generally, including such facilities as firearms or archery ranges, when the applicant declares and describes that
program or policy as a part of its application to the funding board
F By this requirement, the funding board and RCO does not assume any duty to any individual person with respect to death, injury,
or damage to property which that person may suffer while present at, or in the vicinity of, the facility to which this grant relates.
Any such person, or any other person making claims based on such death, injury, or damage, must look to the sponsor, or
others, for any and all remedies that may be available by law.
SECTION 32. REQUIREMENTS OF THE NATIONAL PARK SERVICE
If the project has been approved by the National Park Service, US Department of the interior, for funding assistance from the federal
Land and Water Conservation Fund (LWCF), the "Project Agreement General Provisions" in the LWCF State Assistance Program
Federal Financial Assistance Manual are also made part of this agreement. The sponsor shall abide by these LWCF General
Provisions as they now exist or are hereafter amended. Further, the sponsor agrees to provide RCO with reports or documents
needed to meet the requirements of the LWCF General Provisions.
SECTION 33. FARMLAND PRESERVATION ACCOUNT
For projects funded through the Washington Wildlife and Recreation Program Farmland Preservation Account, the following sections
will not apply if covered separately in a recorded RCO approved Agricultural Conservation Easement.
Section 8 Acknowledgement and Signs,
Section 11 Hazardous Substances,
Section 17 Stewardship and Monitoring
Section 26 Restriction on Conversion of Real Property and /or Facilities to Other Uses, and
Section 25 Provisions Applying to Acquisition Projects Sub sections D, E, F and G
SECTION 34. ORDER OF PRECEDENCE
This agreement is entered into, pursuant to, and under the authority granted by applicable federal and state laws. The provisions of
the agreement shall be construed to conform to those laws. In the event of an inconsistency in the terms of this agreement, or
between its terms and any applicable statute, rule, or policy or procedure, the inconsistency shall be resolved by giving precedence in
the following order
A. Applicable federal and /or state statutes, regulations, policies and procedures including RCO /funding board policies and
procedures, applicable federal Office of Management and Budget (OMB) circulars and federal and state executive orders;
B. Project agreement including attachments;
C Special Conditions;
D. Standard Terms and Conditions of the Project Agreement.
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SECTION 35. AMENDMENTS
This agreement may be amended by mutual agreement of the parties only. Such amendments shall not be binding unless they are in
writing and signed by personnel authorized to bind each of the parties. Period of performance extensions and minor scope
adjustments need only be signed by RCO's director or designee.
SECTION 36. LIMITATION OF AUTHORITY
Only RCO or RCO's delegate by writing (delegation to be made prior to action) shall have the express, implied, or apparent authority
to alter, amend, modify, orwaive any clause or condition of this agreement. Furthermore, any alteration, amendment, modification, or
waiver of any clause or condition of this agreement is not effective or binding unless made in writing and signed by RCO
SECTION 37. WAIVER OF DEFAULT
Waiver of any default shall not be deemed to be a waiver of any subsequent default Waiver or breach of any provision of the
agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of
the terms of the agreement unless stated to be such in writing, signed by the director, or the director's designee, and attached to the
original agreement.
SECTION 38. APPLICATION REPRESENTATIONS MISREPRESENTATIONS OR INACCURACY OR BREACH
The funding board and RCO rely on the sponsor's application in making its determinations as to eligibility for, selection for, and scope
of, funding grants. Any misrepresentation, error or inaccuracy in any part of the application may be deemed a breach of this
agreement.
SECTION 39. TERMINATION AND OTHER REMEDIES
The funding board and RCO will require strict compliance by the sponsor with all the terms of this agreement including, but not limited
to, the requirements of the applicable statutes, rules and all funding board and RCO policies, and with the representations of the
sponsor in its application for a grant as finally approved by the funding board.
The funding board or the director may suspend or terminate the obligation to provide funding to the sponsor under this agreement
A.
In the event of any breach by the sponsor of any of the sponsor's obligations under this agreement; or
B if the sponsor fails to make progress satisfactory to the funding board or director toward completion of the project by the
completion date set out in this agreement Included in progress is adherence to milestones and other defined deadlines.
In the event this agreement is terminated by the funding board or director, under this section or any other section after any portion of
the grant amount has been paid to the sponsor under this agreement, the funding board or director may require that any amount paid
be repaid to RCO for redeposit into the account from which the funds were derived.
The funding board and RCO may enforce this agreement by the remedy of specific performance, which usually will mean completion
of the project as described in this agreement However, the remedy of specific performance shall not be the sole or exclusive remedy
available to RCO. No remedy available to the funding board or RCO shall be deemed exclusive. The funding board or RCO may elect
to exercise any, a combination of, or all of the remedies available to it under this agreement, or under any provision of law, common
law, or equity
SECTION 40. NON AVAILABILITY OF FUNDS
If amounts sufficient to fund the grant made under this agreement are not appropriated by the Washington State Legislature, or if
such funds are not allocated by the Washington State Office of Financial Management (OFM) to RCO for expenditure for this
agreement in any biennial fiscal period, RCO shall not be obligated to pay any remaining unpaid portion of this grant unless and until
the necessary action by the Legislature or OFM occurs If RCO participation is suspended under this section for a continuous period
of one year, RCO's obligation to provide any future funding under this agreement shall terminate. Termination of the agreement under
this section is not subject to appeal by the sponsor.
SECTION 41. TERMINATION FOR CONVENIENCE
Except as otherwise provided in this agreement, RCO may, by ten (10) days written notice, beginning on the second day after the
mailing, terminate this agreement, in whole or in part. If this agreement is so terminated, RCO shall be liable only for payment
required under the terms of this agreement for services rendered or goods delivered prior to the effective date of termination.
PSAR Project Agreement RCO #09-1531N
Chapter 77 85 RCW, Chapter 420 WAC
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Salmon Funding Accounts
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SECTION 42. DISPUTE HEARING
Except as may otherwise be provided in this agreement, when a dispute anses between the sponsor and the funding board, which
cannot be resolved, either party may request a dispute hearing according to the process set out in this section. Either party's request
for a dispute heanng must be in writing and clearly state.
A. The disputed issues,
B. The relative positions of the parties;
C. The sponsor's name, address, project title, and the assigned project number
In orderfor this section to apply to the resolution of any specific dispute or disputes, the other party must agree in writing that the
procedure under this section shall be used to resolve those specific issues. The dispute shall be heard by a panel of three persons
consisting of one person chosen by the sponsor, one person chosen by the director, and a third person chosen by the two persons
initially appointed. If a third person cannot be agreed on, the third person shall be chosen by the funding board's chair.
Any hearing under this section shall be informal; with the specific processes to be determined by the disputes panel according to the
nature and complexity of the issues involved. The process may be solely based on written material if the parties so agree. The
disputes panel shall be governed by the provisions of this agreement in deciding the disputes
The parties shall be bound by the decision of the disputes panel, unless the remedy directed by that panel shall be without the
authority of either or both parties to perform, as necessary, or is otherwise unlawful.
Request for a disputes heanng under this section by either party shall be delivered or mailed to the other party. The request shall be
delivered or mailed within thirty (30) days of the date the requesting party has received notice of the action or position of the other
party which it wishes to dispute. The written agreement to use the process under this section for resolution of those issues shall be
delivered or mailed by the receiving party to the requesting party within thirty (30) days of receipt by the receiving party of the request.
All costs associated with the Implementation of this process shall be shared equally by the parties.
SECTION 43. ATTORNEYS' FEES
In the event of litigation or other action brought to enforce contract terms, each party agrees to bear its own attorney fees and costs-
SECTION 44. GOVERNING LAW/VENUE
This agreement shall be construed and interpreted in accordance with the laws of the State of Washington. In the event of a lawsuit
involving this agreement, venue shall be proper only in Thurston County Superior Court. The sponsor, by execution of this agreement
acknowledges the jurisdiction of the courts of the ,State of Washington.
In the cases where this agreement is between the funding board and a federally recognized Indian Tribe, the following goveming
law /venue applies:
A The State of Washington agrees that it shall initiate any lawsuit against a federally recognized Indian Tribe arising out of or
relating to the performance, breach or enforcement of this agreement in Federal Court. Interpretation shall be according to the
law of the State of Washington In the event that the Federal Court determines that it lacks subject matter jurisdiction to resolve
the dispute between the State and Tribal Party, then the parties agree to venue in Thurston County Superior Court, but the
parties agree that the matter shall not be pursued in superior court unless there is a Federal Court determination that it lacks
subject matter jurisdiction.
B. Any jucicial award, determination, order, decree or other relief, whether in law or equity or otherwise, resulting from the action
shall be binding and enforceable on the parties. Any money judgment or award against a Tribe, tribal officers and members, or
the State of Washington and its officers and employees may exceed the amount provided for in Section F- Project Funding of the
Agreement in order to satisfy the judgment.
C The Tribe hereby waives its sovereign immunity as necessary to give effect to this section, and to the implementation of any
judgment. This waiver is only for the benefit of the Tnbe and State and shall not be enforceable by any third party or by any
assignee or delegate of the parties. In any enforcement action, the parties shall bear their own enforcement costs, including
attorneys' fees.
SECTION 45. SEVERABILiTY
The provisions of this agreement are intended to be severable If any term or provision is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity of the remainder of the agreement
PSAR Project Agreement RCO #09-1531N
Chapter 77.85 RCW, Chapter 420 WAC
PROJAGR RPT
Salmon Funding Accounts
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