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AG 11-097�TU�v To: �"�C�.1 \? 1'l i'� � � �'�, ExT: � "((;;:� CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/DIV: PUBLIC WORKS / 2. ORIGINATINGSTAFFPERSON: K.�ILLlI�M►� a�� EXT: 2 -�� 3. DATEREQ.BY: �S�P 4. TYPE OF DOCUMENT (CHECK ONE�: ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ� ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS� ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT �AG#�: ❑ INTERLOCAL � OTHER �DCf� rv R.An�T �C�E€EM�nT� S. PROJECTNAME: �iCG�ff�rylJrF.,� �GL��E ��AI% �� �-'1 � 1 G`����"-J 6. NAME OF C Ann�ss: � E-MAIL:� SIGNATURE EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE � ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS CFW LICENSE # BL, EXP. 12/31/ UBI # , EXP. / / . / 7 TERM: COMMENCEMENT DATE:� ��(C _ COMPLETION DATE: ll� I�C�� �!. ��' I �� 1 �. TOTAL COMPENSATION: $/�/��Q- (INCLUDE EXPENSES AND SALES TAX, IF ANY� (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES� REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED: ❑ YES ❑ NO IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY ❑ PURCHASING: PLEASE CHARGE TO: lO. DOCUMENT / CONTRACT REVIEW ❑ PROJECT MANAGER .�I � � �DNISION MANAGER ❑ DEPUTY DIRECTOR �{' � �Di�cTOx �❑ RISK MANAGEMENT (IF APPLICABLE� '�} l l} � LAW DEPT � ' � /%'i�i'lA ' 1 i'�l �� 11. COUNCIL APPROVAL (IF APPLICABLE� COMMITTEE APPROVAL DATE: ��7�_ 12. CONTRACT SIGNATURE ROUTING � � ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ LAW DEPT 5 � �'���I �SIGNATORY (MAYOR OR DIRECTOR� �r� �CITY CLERK �ASSIGNED AG # �SIGNED COPY RETLJRNED ❑ RETURN ONE ORIGINAL R..� INITIAL / DATE SIGNED ��//u � �r: � � �' INITIAL / DATE APPROVED COUNCIL APPROVAL DATE: .� lI DATE REC'D: �� '! 'I I1/9 � FRESHWATER ALGAE CONTROL PROGRAM GRANT AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND THE CITY OF FEDERAL WAY THIS is a binding agreement entered into, by, and between the state of Washington Department of Ecology [DEPARTMENT] and the City of Federal Way [RECIPIENT]. The purpose of this agreement is to provide funds to the RECIPIENT to carry out the activities described herein. PART I. GENERAL INFORMATION Project Title: Grant Number: A. RECIPIENT Information RECIPIENT Name and Address RECIPIENT Contact Telephone Number: Fax Number: E-mail Address: RECIPIENT Billing Contact Telephone Number: Fax Number: E-mail Address: RECIPIENT Federal ID Number: B. DEPARTMENT Information DEPARTMENT Address: DEPARTMENT Project Manager: Telephone Number: F� Number: E-mail Address: DEPARTMENT Funding Source Federal Way Lake Algae Project G1100235 City of Federal Way PO Box 9718 Federal Way, WA 98063-9718 Dan Smith (253) 835-2756 (253) 835-2709 Daniel.smith(a�cityoffederalwav.com Dan Smith (253) 835-2756 (253) 835-2709 daniel.smith(u�cityoffederalway.com 91-1462550 Water Quality Program Washington State Department of Ecology P.O. Box 47600 Olympia, WA 98504-7600 Melanie Tyler (360) 407-7489 (360) 407-7151 mety461(a�ecv.wa.�ov Freshwater Algae Control Program Federal Way Lake Algae Project City of Federal Way FACP Grant No. Gl 100235 DEPARTMENT Share: $33,517.50 RECIPIENT Share: $11,172.50 Total PROJECT Cost: $44,690.00 DEPARTMENT Maximum Percentage: 75 percent The effective date of this grant agreement is February 7, 2011, according to a prior authorization letter issued by the DEPARTMENT for this grant, which is incorporated by reference. Any work performed prior to the effective date of this agreement will be at the sole expense and risk of the RECIPIENT. Eligible costs incurred during the prior authorization period cannot exceed a total of $675.00. Costs exceeding this amount will also be at the sole expense and risk of the RECIPIENT. This agreement will expire no later than June 30, 2014. PART II. POST PROJECT ASSESSMENT The RECIPIENT agrees to submit a brief survey regarding the key project results or freshwater algae control outcomes and the status of environmental results or goals from the project three years after project completion. The DEPARTMENT's Water Quality Program Performance Measures Lead will contact the RECIPIENT before the Post Project Assessment date to request this data. The DEPARTMENT may also conduct site interviews and inspections, and may otherwise evaluate the Project, as part of this assessment. Post Project Assessment Date: June 30, 2017 Freshwater algae control project outcomes to be evaluated at the Post Assessment include: • Development of procedures for algal bloom complaint response, incident tracking, and the management of the associated public health issues for these lakes: Steel Lake, North Lake, Twin Lakes (Lake Lorene and Lake Jeane), Mirror Lake, Fisher's Bog, Easter Lake, French Lake, and Brooklake. PART III. PROJECT DESCRIPTION The project will involve the implementation of a comprehensive freshwater lake algae bloom management program in the City of Federal Way. Efforts will include a refinement of Surface Water Management (SWM) activities that will include: response to public reports/complaints, field evaluations, site inspections, water quality sampling, sample delivery/analyses, public notifications, data reporting, and community outreach. Page2of8 Federal Way Lake Algae Project City of Federal Way FACP Grant No. G1100235 PART IV. PROJECT BUDGET Pro'ect Title: Federal Wa Lake A1 ae Pro'ect TOTAL ELIGIBLE TASKS COST TEC FY2011 FY2012 FY2013 FY2014 Totals Task 1. Project Management $103.11 $515.63 $515.63 $515.63 $1,650.00 Task 2. Algal Bloom $312.50 $1,562.50 $1,562.50 $1,562.50 $5,000.00 Inspections, Investigations and Response Task 3. Sampling and $563.75 $2,818.75 $2,818.75 $2,818.75 $9,020.00 Analysis Task 4. Data Reporting and $270.00 $1,350.00 $1,350.00 $1,350.00 $4,320.00 Public Notifications Task 5. French Lake $1,543.75 $7,718.75 $7,718.75 $7,718.75 $24,700.00 Maintenance Total* $2,793.11 $13,965.63 $13,965.63 $13,965.63 $44,690.00 * The DEPARTMENT's Fiscal Office will track to the Total Eligible Project Cost. MATCHING REQUIREMENTS DEPARTMENT Share (75 % of TEC) $33,517.50 RECIPIENT Share (25 % of TEC) $11,172.50 Eligible costs may consist of any combination of Cash, Interlocal, or In-kind contributions. Adjustments to budget numbers between fiscal years must be approved by Ecology's project manager and are subject to funding availability. l. Pavment Request Submittals: Payment requests will not be submitted more often than monthly, unless allowed by the DEPARTMENT's Project Manager. The DEPARTMENT's Project Manager may require the RECIPIENT to submit regular payment requests to ensure efficient and timely use of funds. 2. Payment Schedule: Payments will be made on a cost reimbursable basis. PART V. SCOPE OF WORK Task 1. Proiect Administration/Mana�ement A. The RECIPIENT will administer the project. Responsibilities will include, but not be limited to: maintenance of project records; submittal of payment vouchers, fiscal forms, and progress reports; compliance with applicable procurement, contracting, and interlocal agreement requirements; attainment of all required permits, licenses, easements of property rights necessary for the project; and submittal of required performance items. Page 3 of 8 Federal Way Lake Algae Project City of Federal Way FACP Grant No. G1100235 B. The RECIPIENT will manage the project. Efforts will include conducting, coordinating, and scheduling of project activities, and assuring quality control. The RECIPIENT will make every effort to maintain effective communication with the RECIPIENT's designees, the DEPARTMENT, all affected local, state, or federal jurisdictions, and any interested individuals or groups. The RECIPIENT will carry out this project in accordance with any completion dates outlined in this Agreement. C. The RECIPIENT will submit all invoice vouchers, correspondence, and project documents, to the DEPARTMENT Project Manager. Invoice voucher submittals will include a state of Washington Invoice Voucher Form A19-lA, the appropriate B and C forms as described in the current edition of Administrative Requirements for Ecology Grants and Loans, and Form D(when applicable). Copies of all applicable forms will be included with an original A19-lA form, and will be submitted to the DEPARTMENT. Blank forms are found in the current edition of Administrative Requirements for Ecology Grants and Loans or electronic forms can be obtained from the Project Manager. Reimbursements from the DEPARTMENT for invoice voucher submittals will be mailed to the RECIPIENT's designee at the following address: City of Federal Way MS:Finance P,O. Box 9718 Federal Way, WA 98003-9718 D. The RECIPIENT will submit to the DEPARTMENT the following documents and in the quantities identified: • Draft project completion reports — electronic copy • Final project completion reports — electronic copy and five hard copies The RECIPIENT will submit two copies of any document(s) that require DEPARTMENT approval. Required Performance: 1. Effective administration and management of this grant project. 2. Maintenance of all project records. 3. Submittal of all required performance items, progress reports, financial vouchers, and maintenance of all project records. Task 2— Al�al Bloom Inspections, Investi�ations, and Response (Total Cost: $5,000.00) A. Pursuant to reports received by the RECIPIENT from residents or city staff, the RECIPIENT will conduct initial inspections at the target site(s). Follow up efforts may include more detailed surface water investigations and responses designed to protect public health or aquatic resources. The RECIPIENT will focus efforts on City of Federal Page4of8 Federal Way Lake Algae Project City of Federal Way FACP Grant No. Gl 100235 Way lakes, including but not limited to: Steel Lake, North Lake, Lake Lorene, Lake Jeanne, Mirror Lake, Fisher's Bog, Easter Lake, French Lake and Brooklake. Required Performance 1. Receive citizen/staff reports and follow up. 2. Travel to site and inspect water quality conditions. 3. Conduct initial investigation. 4. Determine appropriate response (i.e. sampling warranted), and conduct follow-up inspection as needed. Task 3— Sampling and Analysis (Total Cost: $9,020.00) A. If the initial investigation (Task 2) indicates that an active algae bloom is present, the RECIPIENT will collect water quality samples. The RECIPIENT will deliver samples to either the Ecology freshwater algal identification and toxicity-testing service (King County Environmental Lab) or to a private laboratory (Water Management Laboratories, Tacoma) depending on specific considerations. These considerations may include: (1) the need for specific analytical turn-around times due to scheduled events that use the water bodies (i.e. triathlon), (2) more rapid turn-around in anticipation of holidays or when weekend analysis is preferred, and (3) when specific type of reporting result details are desired (i.e. species densities versus more general present/dominant/subdominant category information). Required Performance 1. Sample collection at targeted sites. 2. Sample delivery to selected laboratory. 3. Analytical fee and report. Task 4— Data Reportin� and Public Notifications (Total Cost: $4,320.00) A. After receiving the laboratory reports, the RECIPIENT will conduct a review of the data and provide the necessary public notification and consultation to affected staff, lake groups, associations, and the general public. The RECIPIENT will use known contact information for electronic notifications through mechanisms such as subscribe or email. The RECIPIENT will provide on-site public notification by physically posting signs as- needed. Required Performance 1. Data review. 2. Consultation with City staff, HOAs, lake groups, private residents. 3. Electronic notifications as needed. 4. Posting signs as needed. Page 5 of 8 Federal Way Lake Algae Project City of Federal Way FACP Grant No. G1100235 Task 5— French Lake Maintenance (Total Cost $24,700.00) A. The RECIPIENT will continue to implement an aggressive and proactive maintenance program for the French Lake dog park pond. The program will include weekly inspections and water quality enhancements to ensure, when possible, a safe environment for park users that choose to use the pond for their pet's recreation. Required Performance 1. Provide necessary pond maintenance including periodic inspections, documentation of conditions, and implementation of maintenance activities designed to improve water quality. VI. SPECIAL TERMS AND CONDITIONS A. Indirect Rate. The RECIPIENT may charge an indirect rate of up to 25 percent based on employee's direct salary and benefit costs incurred while conducting project-related work. The DEPARTMENT's Financial Manager may require a list of items included in the indirect rate at any time. B. Match Requirement. Property and services donated by organizations or individuals to accomplish grant requirements may be used as in-kind match. Donated property and services� must comply with the DEPARTMENT's current edition of Administrative Requirements for Ecology Grants and Loans and the Freshwater Algae Control Program Grant Guidelines (http://www.ecy.wa.gov/biblio/0710076.htm1). Documentation will be maintained by the RECIPIENT for all donated property and services and made available for review by the DEPARTMENT on request. Interlocal Match. The RECIPIENT certifies by signing this agreement that all negotiated interlocal agreements are consistent with all of the following: 1. Terms of this grant agreement 2. The edition of Administrative Requirements for Ecology Grants and Loans that is effective at the signing of this agreement. 3. Chapter 39.34 RCW Interlocal Cooperation Act All negotiated interlocal agreements will be consistent with the terms of this grant Agreement, the DEPARTMENT's current edition (at the signing of this agreement) of Administrative Requirements for Ecology Grants and Loans and Chapter 39.34 RCW Interlocal Cooperation Act. Upon request, the RECIPIENT will submit a copy of the final negotiated interlocal agreement(s) to the DEPARTMENT's Project Manager. C. Meetin Light Refreshments. The RECIPIENT may spend up to $50 per meeting for light refreshments associated with this project. The total amount spent for light Page 6 of 8 Federal Way Lake Algae Project City of Federal Way FACP Grant No. G1100235 refreshments under this agreement cannot exceed $250 unless authorized in writing by the Project Manager. D. Minoritv and Women's Business Participation. The RECIPIENT agrees to solicit and recruit, to the extent possible, certified minority-owned (MBE) and women-owned (WBE) businesses in purchases and contracts initiated after the effective date of this agreement. Contract awards or rejections cannot be made based on MBE or WBE participation. M/WBE participation is encouraged, however, and the RECIPIENT and all prospective, bidders or persons submitting qualifications should take the following steps, when possible, in any procurement initiated after the effective date of this agreement: 1. Include qualified minority and women's businesses on solicitation lists. 2. Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. 3. Divide the total requirements; when economically feasible, into smaller tasks or quantities, to permit m�imum participation by qualified minority and women's businesses. 4. Establish delivery schedules, where work requirements pertnit, which will encourage participation of qualified minority and women's businesses. 5. Use the services and assistance of the State Office of Minority and Women's Business Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. The RECIPIENT will report to the DEPARTMENT at the time of submitting each invoice, on forms provided by the DEPARTMENT, payments made to qualified firtns. Please include the following information: ' 1. Name and state OMWBE certification number (if available) of any qualified firm receiving funds under the invoice, including any sub-and/or sub-subcontractors. 2. The total dollar amount paid to qualified firms under this invoice. E. Procurement. Tke RECIPIENT may elect to use its own forces or may contract for professional services necessary to perform and complete project related work. The RECIPIENT will ensure that this project is completed according to the details of this agreement. By signing this agreement, the RECIPIENT certifies that all applicable requirements have been satisfied in the procurement of any professional services. Upon request, the RECIPIENT will submit a copy of the final negotiated agreement(s) to the DEPARTMENT's Project Manager F. Pro reg ss Re ports . The RECIPIENT will submit semi-annual Progress Reports to the DEPARTMENT's Project Manager. Progress Reports for January 1 through June 30 are due July 15. Progress Reports for July 1 through December 31 are due January 15. Payment requests will not be processed if the required Progress Reports have not been submitted by the RECIPIENT. Page 7 of 8 Federal Way Lake Algae Project City of Federal Way FACP Grant No. G1100235 G. Time for Performance. In the event that the RECIPIENT fails to commence work on the PROJECT within four months after the effective date of this agreement, the DEPARTMENT reserves the right to terminate this agreement. VIL ALL WRITINGS CONTAINED HEREIN This Agreement, the appended General Terms and Conditions, the DEPARTMENT's current edition of Administrative Requirements for Ecology Grants and Loans, and the Freshwater Algae Control Program Grant Guidelines contain the entire understanding between the parties, and there are no other understandings or representations other than as set forth, or incorporated by reference, herein. No subsequent modification(s) or amendment(s) of this Agreement will be of any force or effect unless signed by authorized representatives of the RECIPIENT and the DEPARTMENT and made a part of this Agreement, EXCEPT, that in response to a request from the RECIPIENT; the DEPARTMENT may change the grant expiration date. The DEPARTMENT or RECIPIENT may change their respective staff contacts without the concurrence of either party. IN WITNESS WHEREOF, the parties sign this Grant: STATE OF WASHINGTON DEPARTMENT OF ECOLOGY i � � '��� L SEWIND, P.E., P.G. DATE W ER QUALITY PROGR.AM MANAGER APPROVED AS TO FORM ONLY ASSISTANT ATTORNEY GENERAL CITY OF FEDERAL WAY ���----� 1Z�1I SKIP PRI ST DATE MAYOR Page 8 of 8 GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements of the Department o# Ecology A. RECIPIENT PERFORMANCE Al! activities for which granUloan fiunds are to be used shall be accomplished by the RECIPlENT and RECIPIENT's empioyees. The RECIPIENT shall only use contractor/consuitant assistance if that has been included in the agreemenYs fina� scope of work and budget_ B. SUBGRANTEE/CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement. C. THIRD PARTY BENEFICIARY The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of Washington is named as an express third-party beneficiary of such subcontracts with full rights as such. D_ CONTRACTING FOR SERVICES (BIDDING) Contracts for construction, purchase of equipment and professionat architectural and engineering services shall be awarded through a competitive process, if required by State law_ RECIPIENT shall retain copies of alt bids received and contracts awarded, for inspection and use by the DEPARTMENT. E- ASSIGNMENTS No right or claim of the REC1PiENT arising under this agreement shall be transferred or assigned by the RECIPIENT_ F• COMPLIANCE WITH ALL LAWS 1- The RECIPIENT shafl comply fully with all applicable Federal, State and loca! laws, orders, regulations and permits. Prior to commencement of any construction, the RECIPlENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that a�l approvais and permits have been secured, and make copies available to the DEPARTMENT upon request. 2- Discrimination. The DEPARTMENT and the RECIPfENT agree to be bound by a�l Federa! and State laws, regulations, and policies against discrimination. The RECIPfENT further agrees to affirmatively support the program of the Office of Minority and Women's Business Enterprises to the maximum extent possible. If the agreement is federally-funded, the RECIPIENT shall report to the OEPARTMENT the percent of granUloan funds available to women or minority owned businesses. 3 - Wages And Job Safety_ The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety_ 4- Industriai insurance_ The RECIPlENT certifies full compliance with all applicable state industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the DEPARTMENT shalt have the right fo immediately terminate this agreement for cause as provided in Section K.1, herein. G. KICKBACKS The RECIPIENT is prohibited from inducing by any means any person employed or othennrise involved in this project to give up any part of the compensation to which he/she is otherwise entitled or, receive any fee, commission or gift in return for award of a subcontract hereunder_ H. AUDITS AND INSPECTIONS 1- The RECiP1ENT shall mainfain comptete program and financial records relating to this . agreement. Such records shall clearly indicate totai receipts and expenditures by fund source and task or object. � A�I granUloan records shalt be kept in a manner which provides an audit trail for alt expenditures. All records shall be kept in a common file to facilitate audits and inspections. Engineering documentation and field inspection reports of all construction woric accomplished under this agreement shall be maintained by the RECIPIENT. 2. All grant/loan records shatl be open for audit o� inspection by the DEPARTMENT or by any duly authorized audit representative of the State of Washington for a period of af feast three years after the final grant payment/loan repayment or any dispute resolution hereunder_ If any such audits identify discrepancies in the financiat records, the RECIPIENT shall provide clarifiication and/or make adjustments accordingly_ 3_ All work performed under this agreement and any equipment purchased, shall be made availabte to the DEPARTMENT and to any authorized state, federal or local representative for inspection af any time during the course of this agreement and for at least three years following grant/loan termination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A=133 (Audits of States, Local Governments & Non Profit Organizations), including fhe compliance Supplement to OMB Circular A-i 33, if the RECIPIENT expends $500,000 or more in a year in Federal funds. The $500,000 threshold for each year is a cumulative total of ail federal funding from all sources. The RECIPIENT must forward a copy of the audit along with the RECIPIENT'S response and the final corrective action plan to the DEPARTMENT within ninety (90) days of the date of the audit report. PERFORMANCE REPORTING The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set forth in the Special Conditions. The RECIPfENT shall also report in writing to the DEPARTMENT any problems, delays or adverse conditions which will materialty affect their ability to meet project objectives or time schedules. This disclosure shalf be accompanied by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT #o resolve the situation. Payments may be withheld if required progress reports are not submitted_ Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 througM December 31. Reports shatl be due within thirty (30) days following the end of the quarter being reported. COMPENSATION 1. Method of compensation. Payment shall normally be made on a reimbursable basis as specified in the grant agreement and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by the DEPARTMENT along with documentation of the expenses. Payments shall be made for each tasklphase of the project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and approved as satisfactory by the Project Officer. The payment request form and supportive documents must itemize all atlowable costs by major elements as described in the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for Ecology Grants and Loans", part IV, published by the DEPARTMENT. A copy of this document shall be furnished to the RECIPIENT. When payment �equests are approved by the DEPARTMENT, payments will be made to the mutually agreed upon designee. Payment requests shall be submitted to the DEPARTMENT and directed to the Project Officer assigned to administer this agreement_ 2. Period of Compensation. Payments shal! only be made for actions of the RECtPIENT pursuant to the granUloan agreement and performed after the effective date and prior to the expiration ciate of ihis agreement, unless those dates are specifically modified in writing as provided herein. 3. Final Request(s) for Payment. The RECIPIENT should submit final requests for compensation within forty-five(45) days after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium_ Failure to comply may result in delayed reimbursement� 2 4. Performance Guarantee. The DEPARTMENT may withhotd an amount not to exceed ten percent (10%) of each reimbursement payment as security for the RECIPIENT's performance. Monies withheld by the DEPARTMENT may be paid to the RECIPfENT when the project(s) described herein, or a portion thereof, have been compieted if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this agreement and, as appropriate, upon completion of an audit as specified under section J.6. herein_ 5. Unauthorized Expenditures. All payments to the RECtPIENT may be subject to final audit by the DEPARTMENT and any unauthorized expenditure(s) charged to this granUloan shall be refunded to the DEPARTMENT by the RECIPIENT. 6. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities, it shall not exceed the amount allowed under state law for state employees. 7. Overhead Costs. No reimbursement for overhead costs shal( be allowed unless provided for in the Scope of Work hereunder. K. TERMINATION 1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to perform any obligation �equired of it by this agreement, the DEPARTMENT may refuse to pay any further fu�ds thereunder andlor terminate this agreement by giving written notice of termination. A written notice of termination shall be given at least fiive working days prior to the effective date of termination. 1n that event, atl finished or unfinished documents, data studies, surveys, drawings, maps, modeis, photographs, and reports or other materials prepared by the RECIPlENT under this agreement, at the option of the DEPARTMENT, shall become Department property and the REC1PiENT shail be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and o#her materials. Despite the above, the RECIPfENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by the DEPARTMENT and/or the State of Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT may withhold payments for the purpose of setoff untit such time as the exact amount of damages due the DEPARTMENT from the RECIPIENT fs determined. 2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and federal funds through tegislative appropriation and state atlotment. When this agreement crosses over state fiscal years the obligation of the DEPARTMENT is contingent upon the appropriation of funds cluring the next fiscal year_ The failure to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above. When this agreement crosses the REClPlENTs fiscal year, the obligation o# the RECIPIENT to continue or complete the project described herein shalf be contingent upon appropriation of funds by the RECtP1ENT's governing body; Provided, however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of ALL #unds paid to the RECIPIENT in accordance with Section O hereirt_ 3. Faiture to Commence Work_ Fn the event the RECIPIENT fails to commence work on the project funded herein within four months after the effective date o# this agreement, or by any date mutualiy agreed upon in writing for commencement of work, the DEPARTMENT reserves the right to terminate this agreement_ L. WAIVER Waiver of any RECIPIENT defauit is not a waiver of any subsequent default_ Waiver of a breach of any provision of this agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement unless stated as such in writing by the authorized representative of the DEPARTMENT. 3 M. PROPERTY RIGHTS 1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentabie property, the RECtPIENT may copyright or patent fhe same but the DEPARTMENT retains a royalty-free, nonexclusive and irrevocabte license to reproduce, publish, recover ar otherwise use the materiai(s) or property and to authonze others to use the same for federai, state or local government purposes_ Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any inventions that are developed by the RECIPIENT as provided in 35 U_S.C_ 200-212. 2_ Publications_ When the RECIPiENT or persons emptoyed by the RECtPIENT use or publish information of the DEPARTMENT; present papers, lectures, or seminars involving information supptied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3_ Tangfble Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Ecology Grants and Loans", Part V, shall control the use and disposition of all reai and personal property purchased wholly or in part with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the contrary or upon specific instructions with respect thereto in fhe Scope of Work. 4_ Personal Property Furnished by the DEPARTMENT_ When the DEPARTMENT provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to fina! payment by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the DEPARTMENT sha11 be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. 5_ Acquisition Projects. The following provisions shalt apply if the project covered by this agreement includes funds for the acquisition of land or faciiities: a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of land/or facilities is fair and reasonable. b_ The RECIPIENT shal{ provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this agreement. Such evidence may include titfe insurance policies, Torrens certificates, or abstracts, and attorney's opinions estabtishing that the tand is free from any impediment, lien, or claim which would impair the uses contemplated by this agreement. 6_ Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time convert any equipment, property or facility acquired or devetoped pursuant to this agreement to uses other than those for which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other conversion or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction costs of such property. N. SUSTAINABLE PRODUGTS In order to sustain Washington's natural resources and ecosystems, the RECIPIENT is encouraged to implement sustainable practices where and when possible. These practices include use of clean energy, and purchase and use of sustainably produced products (e.g. recycled paper)_ For more information, see www.ecy.wa.gov/sustainability.. O. RECOVERY OF PAYMENTS TO RECIPIENT The right of the RECIPlENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance of this agreement including the safisfactory comptetion of the project described in the Scope of Work_ In the event the RECIPIENT fails, for any reason, to perform obGgations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/foan funds disbursed to the RECIPIENT for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform. 4 Interest shall accrue at the rate of twelve percent (12%) per year from the time the DEPARTMENT demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the RECIPlENT shalt not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the RECIPtENT'S liability to repay monies shall be reduced by an amount reflecting fhe fair value of such property. P. PROJECT APPROVAL The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project Officer or other designated official to whom the RECIPIENT shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done, the defermination of the Praject Officer or other designated official as to the extent and character of the work to be done shafl govern. The RECIPIENT shall have the right to appeal decisions as provided for below. Q. DISPUTES Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is not disposed of in writing shatl be decided by fhe Project Officer or other designated official who shaft provide a written statement of decision to the RECIPIENT_ The decision of the Project Officer or other designated official sha{I be final and conclusive unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director of the DEPARTMENT a written appeal. In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such appeals sha14 be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the performance of this agreement and in accordance with the decision rendered. � R. CONFLICT OF INTEREST No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the review, approval, or carrying out of this agreement, shalf participate in any decision which affects his/her personal interest or the interest of any corporation, partnership or association in which he/she is, directly or indirectly inferested; nor shall he/she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds fhereof. S. INDEMNIFICATION 1. The DEPARTMENT sha(I in no way be he{d responsible for payment of salaries, eonsultant's fees, and other cosfs related to the project described herein, except as provided in the Scope of Work. 2. To the extent that the Constitution and laws of the State of Washington permit, each party shafl indemnify and hold the other harmfess from and against any fiability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising aut of this agreement. T. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington. U. SEVERABILITY If any provision of this agreement or any provision of any document incorporated by reference 5 V. PRECEDENCE In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the folfowing order (a) applicable. Federal and State statutes and regulations; (b) Scope of Work; (c} Special Terms and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for Ecology Grants and Loans' ; and (e) the Genera{ Terms and Conditions. SS-010 Rev. 04/04 6