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AG 99-141 Salmon Project Agreement I IRECREATION Salmon Funding Accounts Project Sponsor: City of Federal Way Project Number: 99-1433D Project Title: North Fork West Hylebos Creek lAC Approval Date: 7/28/1999 A. PARTIES OF THE AGREEMENT This Project Grant Agreement (Agreement) is entered into between the Interagency Committee for Outdoor Recreation (lAC), P.O. Box 40917, Olympia, Washington 98504-0917 (on behalf of the Salmon Recovery Funding Board) and City of Federal Way, 33530 1st Way S, Federal Way, WA 98003 (Project Sponsor) and shall be binding upon 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 WashJngton's General Fund. The grant is made by the Interagency Committee for Outdoor Recreation to the Project Sponsor, for the project named above. C. DESCRIPTION OF PROJECT The subject project is described on the attached Project Summary. D. TERMS OF AGREEMENT The Sponsor's ongoing obligation for the above project for a fish passage barrier correction or fish screen at a water diversion structure is to provide tune-up of the site to ensure the project is functioning as designed for one (1) year after the final payment, unless the site is destroyed by an act of nature. The facility owner is responsible for maintaining the fishway and/or fish screen in perpetuity in accordance with Chapters 75.20.040, 75.20.060, 77.16.210 and 77.16.220 RCW. E. PERIOD OF PERFORMANCE The Project reimbursement period shall begin on July 29, 1999 and end on May 31,2000. No expenditure made before or after this period is eligible for reimbursement unless incorporated by written amendment into this Agreement. F. PROJECT FUNDING The total grant award provided by lAC for this project shall not exceed $49,347. lAC shall not pay any amount beyond that approved for funding of the project. The Project Sponsor shall be responsibre for ail total project costs that exceed this amount. The contribution by the Project Sponsor toward work on this project at a minimum shall be as indicated below: Percentage Dollar Amount lAC - SALMON BARRIERS 75% $49,347 Project Sponsor 25% $16,451 Total Project Cost 100% $65,798 G. RIGHTS AND OBLIGATIONS All rights and obligations of the parties to this Agreement are subject to this Agreement and its attachments, including the Sponsor's Application, Project Summary, Eligible Reimbursement Activities Report, and the General Provisions. Except as provided herein, no al{eration of any of the terms or conditions of this Agreement will be effective unless provided in writing. All such alterations, except those concerning the period of performance, must be signed by both parties. Period of performance extensions need only be signed by IAC's Director. The Project Sponsor has read, fully understands and agrees to be bound by all terms and conditions as set forth in these documents. Salmon Project Agreement Salmon Funding Accounts Chapter 13, 1st Ex. Session, 1999 (2E2SSB5595); Chapter 75.46 RCW Page 1 of 2 H. COMPLIANCE WlTH APPLICABLE STATUTES~ RULES, AND IAC POLICIE,~; This Agreement is governed by, and the Sponsor shall comply with, all applicable state and federal laws and the provisions of Chapter 13, 1st Ex. Session, 1999 {2E2SSB5595); Chapter 75.46 RCW and published agency policies, which are incorporated herein by this reference as if fully set forth. I. ADDITIONAL PROVISIONS OR MODIFICATIONS OF THE GENERAL PROVISIONS (none) J. PROJECT GRANT AGREEMENT REPRESENTATIVE All written communications sent to the Sponsor under this Agreement will be addressed and delivered to: Project Sponsor IA~C Name: Darla Wise Interagency Committee for Outdoor Recreation Title: Natural Resources Building Address: 33530 1st Way s. PO Box 40917 Federal Way, WA 98003 Olympia, Washington 98504-0917 www.wa.gov/iac These addresses shall be effective until receipt by one party from the other of a written notice of any change. K. ENTIREAGREEMENT This agreement, along with all 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. L. EFFECTIVE DATE This agreement shall be effective upon signing by all parties. STATE OF WASHINGTON INTERAGENCY COMMITTEE FOR OUTDOOR RECREATION Laura Eckert Johnson, Director TITLE: Kenneth E. ' e Pre-approved as to form by the state Assistant Attorney General City AttorneY, Londi' K Linc]ell Sarmon Project Agreemen Salmon Funding Accounts Chapter 13, 1st Ex. Session, 1999 (2E2SSB5595); Chapter 75.46 RCW Page 2 of 2 PROJAGR2.RPT Salmon Program Fish Passage Barriers Post-Evaluation Project Summary TITLE: North ForkWest Hylebos Creek NUMBER: 99-1433D (Development) STATUS: Committee Funded SPONSOR: City of Federal Way EVALUATION SCORE: 42.0658 COMMITTEE RANKING: 19 of 40 COSTS: SPONSOR MATCH: lAC - SALMON BARRIE $49,347.00 75% In-Kind Local $16,451.00 25% Total $65,798.00 100% DESCRIPTION: This project will remove the existing 18" culvert under a primitive road and restore the stream channel. The North Fork West Hylebos creek is extremely productive for coho salmon, chum salmon, steelhead and cutthroat trout. LOCATION INFORMATION: ESU REGION: Puget Sound Central COUNTY: King SCOPE (ELEMENTS): Architectural & Engineering Instream Sales Tax FISCAL YEAR: 2000 DATE PRINTED: August 23, 1999 1PAPSUM2.RPT North Fork West Hylebos Creek i..~. i~i'{}~~j~r Eligible Reimbursement Activities Report ~iR£CRERTION Project Sponsor: City of Federal Way Project Number: 99-1433 D Project Title: North Fork West Hylebos Creek lAC Approval: 7/28/1999 Development Project: Element Item Unit Quantity Description Architectural & Engineering A & E development Lump Sum 1.00 Instream Barrier removal (fish passage) Each 1.00 Sales Tax Sales Tax Lump Sum 1.00 ELIGREIM.RPT August 17, 1999 Page: 1 INTERAGENCY COMMITTEE FOR OUTDOOR RECREATION FORM A-19 State of Washington INVOICE VOUCHER A~ency Name Sponsor's Car t h~cat e I hereby ced/fy under penalty of perjury tt~a[ the items and to[als listed Interagen cy Gem rnitt ee fo r Ou td oo r Recr eat/on herein are proper changes for materials, merchandise or services furnished and/or services P.O. BOX 4091 furnished to the State of Wastlin9ton, and that afl goods furnished and/or services rendered Olympia, WA 98504-0917 havsbeenprovidedwithoutdiscriminationbecauseofaga,$ex, maritalstatu$ race, creed. color, national origin, handicap, refigion or Vietnam or disabled veterans status. I Sponsor I BY City of Federal Way 33530 1st Way S Federal Way, WA 98003 (TITLE) (DATE) Project Number 99-1433 D Invoice # Billing Period This is a Final Billing? Project Name North Fork West Hylebos Creek 1 From: To: Yes [ ] No [ ] Project Costs For This Billing CATEGORIES: Agreement Expenditures Donations Total Development $12,338 Construction A&E $4,113 TOTAL $16,451 FUNDING & EXPENDITURE FORMULA For lAC Use ONLY Sponsor: 25.00% $16,451 Total Billed lAC Federal: lAC Share Billed lAC: SALMON BA 74.00% $49,347 IAC Share Approved lAC: Advance Balance Agreement Total 99.00% $65,798 Match Owed Balance lAC Share Retained lAC Share Paid Donation Bank 7222 F190 99-1433 D 210 06A E17 98101 NZ 7222 1 NZ 7222 NZ 7222 Project Manager/Date Release Final Prnt [ ] Division Supervisor/Date Accounting/Date INVOICE1.RPT 8/23/1999 Current Funding Milestone Report By Project Project Number: 99-1433 D Project Name: North Fork West Hylebos Creek Sponsor: Federal Way City of lAC Project Manager: Cliff Hall Project Start 07/29/1999 Project Complete 05/31/2000 Final Docs & Billing to lAC 08/31/2000 = Milestone Complete = Critical Milestone 1MILESTO.RPT August 17, 1999 Page: 1 AUGUST 23, 1999 Project Agreement - General Provi$ions-Z Comrm~efor OUTDOOR Salmon Project Agreement RECRERTION General Provisions Table of Contents Page A. 1. Headings, Definitions, and Framework of Agreement ........................................................ 2 B. Performance and Requirements -- General Responsibilities 2. Performance by Sponsor ............................................................................................... 3 3. Restrictions on Assignment ........................................................................................... 3 4. Responsibility for Project ............................................................................................... 3 5. Independent Capacity of the Sponsor ............................................................................. 3 6. Compliance with Applicable Law .................................................................................... 3 7. Conflict of Interest Prohibited ........................................................................................ 4 8. Prohibited Use of Funds ................................................................................................ 4 C. Funding, Reimbursements, Records, and inspections 9. Project Funding ............................................................................................................4 10. Project Reimbursements ................................................................................................ 4 11. Development Projects, Records Retention, Contracts, Change Orders ............................... ...5 12. Construction, Operation, Use and Maintenance of Assisted Projects .................................... 5 13. Non-availability of Funds ............................................................................................... 5 14. Records and Reports ..................................................................................................... 5 15. Authority to Inspect/Right of Entry ................................................................................. 5 16. Acknowledgments ........................................................................................................ 6 17. Statement of Federal Funding ........................................................................................ 6 F. Other Provisions 18. Nonprofit Sponsors ....................................................................................................... 6 19. Industrial Insurance Coverage ........................................................................................ 6 20. Buy American Act ........................................................................................................ 7 G. Remedies and Disputes 21. Order of Precedence ..................................................................................................... 7 22. Governing LawNenue ................................................................................................... 7 23. Waiver of Default ......................................................................................................... 7 24. Application Representations -- Misrepresentations or Inaccuracy or Breach ........................... 7 25. Indemnity .................................................................................................................... 7 26. Termination and Other Remedies .................................................................................... 8 27. Disputes ......................................................................................................................8 28. Severability ................................................................................................................. 9 AUGUST 23, 1999 Project Agreement · General P¢ovisions-2 Section 1: Headings, Definitions, and Framework of Agreement (A) Headings used in this Agreement are for reference purposes only and shall not be considered a substantive part of this Agreement. lB) Definitions. Agreement - The accord accepted by ail parties to the present transact[on; the Project Agreement, supplementa[ agreement, and/or intergovernmental agreement between lAC and a Sponsor. Applicant - Any agency or organization that meets the qualifying standards, including deadlines, for submission of an application soliciting a grant of funds from SRFB. Application - The forms approved by SRFE~ or the Director for use by applicants in soliciting project funds administered by SRFB. Development - Fish passage barrier removal, habitat restoration, or fish screening projects. Director- IAC's Director or the Director's designee. Interagency Committee for Outdoor Recreation (lAC) - The executive branch state agency created by RCW 43.99, charged with administering this project agreement under Chapter 13, 1 -~ Ex Session, Laws of 1999. Period of Performance: - The time period specified in the project agreement, under Section E, Period of Performance. 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 lAC on behalf of the SFRB. Sponsor - The applicant who has been awarded a grant of funds and is bound by this executed Project Agreement; includes its officers, employees and agents. Salmon Recovery Funding Board (SRFB) - The Board created under Chapter 13, 1st Ex. Session, Laws of 1999 (2E2SSB5595) amended, Chapter 75.46 RCW. It is comprised of five governor-appointed voting members (one a cabinet-level appointment) and five non-voting state officials: the Commissioner of Public Lands, the Secretary of Transportation, the Director of the Conservation Commission, the Director of Fish and Wildlife and the Director of Ecology (or their designees). SRFB as used herein includes the activities of the lAC staff necessary to carry out the purposes of Chapter 75.46 RCW. lC) Framework of Agreement. This Agreement provides for the orderly completion of the proposal contained in the Sponsor's application to SRFB for public funds. In summary, it provides the following guidance: (1) Timeliness. For the Sponsor to undertake and complete the Project in a timely manner, in accordance with the approved Project proposal and applicable laws; (2) Reimbursements. For SRFB to provide reimbursement to the Sponsor for eligible Project costs. Sponsor reimbursement requests shall be made not more than once monthly and not less than yearly, in accordance with SRFB format and policy; (3) Recognition. For the Sponsor to provide acknowledgment of SRFB's funding contribution. (4) Other obligations & remedies. Sets forth obligations and remedies. AUGUST 23, 1999 Project Agreement - General Provisions-3 Section 2: Performance by Sponsor The Sponsor shall undertake the Project as described in this Agreement, on the Project Summary, in 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, ali as finally approved by SBFB. AlT submitted documents are incorporated by this reference as if fully set forth herein. Timely completion of the Project is important. Failure to do so, as set out in this Agreement, is a material breach of the Agreement. Section 3: Restriction on Assignment The Sponsor shall not assign this Agreement, or the porformanco of any obligations to SRFB under this Agreement, or any claim against SRFB it may have under this Agreement, without tho express written consent of the Director. Section 4: Responsibility for Project While SRFB 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. SRFB 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 design, devHopment, construction, implementation, operation and maintenance of the Project, as those phases are applicable to this Project, is solely that of the Sponsor, as is responsibility for any claim or suit of any nature by any third party related in any way to the Project. The Sponsor shall defend at its own cost any and all claims or suits at law or in equity which may be brought against the Sponsor in connection with the Project, The Sponsor shall not look to SRFB, including any of SRFB's employees or agents, for any performance, assistance, or any payment or indemnity, including but not limited to cost of defense and/or attorneys' fees, in connection with any claim or lawsuit brought by any ~hird party re]ate~] in any way to the Project, including but not limited to, its design, development, construction, implementation, operation and/or maintenance. Section 5: Independent Capacity of the Sponsor The Sponsor and his or her employees or agents performing under this Agreement are not employees or agents of SRFB. The Sponsor will not ho]d himself~hereelf out as nor claim to be an officer or employee of SRFE~ or of the state of Washington by reason hereof, nor will the Sponsor make any claim of right, privilege or benefit which would accrue to an employee under Chapter 4f:06 RCW or Chapter 28B.16 RCW. The Sponsor is responsible for withholding and/or paying employment taxes, insurance, or deductions of any kind. Section 6: Compllence with Applicable Law The Sponsor will comply with, and SRFB is not responsible for determining compliance with, all applicable federal, state, and local laws, regulations, and policies, including, but not limited to: ~tate Environmental Policy Act; Americans with Disabilities Act; Architectural Barriers Act (restoration and improvement projects only); permits (shoreline, HPA, demolition); land use regulations (comprehensive areas ordinances, GMA); and federal and state safety and health regulations {OSHA/WISHA). The Sponsor further agrees to indemnify and hold harmless SRFB from all liability, damages and costs of any nature, including but not limited to costs of suits and attorneys' fees assessed against SRFB, as a result of the failure of the Sponsor to so comply. AUGUST 23, 1999 Project Agreement · General ?rovisions-4 Section 7: Conflict of Interest Prohibited SRFB may, by written notice to the Sponsor, terminate this Agreement if it is found after due notice and examination by SRFB that them 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, SRFB 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 SRFB provided for in this clause sha!l not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which SRFB makes any determination under this clause shall be an issue and may be reviewed as provided in the "Disputes" clause of this Agreement. Section 8: Prohibited Use of Funds No part of any funds provided under this grant shall be used, other than for normat 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 designed to support or defeat legislation pending before the U.S. Congress or any state legislature itself. 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 appropriations pending before the U.S. Congress or any state legislature. Section 9: Project Funding (A) Additional Amounts. SRFB shall not be obligated to pay any amount beyond SRFB's dollar amount or the Project percentage as identified in this Agreement (whichever amount is less), unless that additional amount has been approved in advance by SRFB or Director and incorporated by written 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 approved by SRFB or Director. The dollar amounts identified in this Agreement shall be reduced as necessary to exclude any such expenditure from participation. (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 giant funds hereunder. In addition to any remedy SRFB may have under this Agreement, the amounts identified in this Agreement shall be reduced to exclude any such expenditure from participation. . Section 10: Project Reimbursements (A) Compliance and Retainage. Disbursement of grant monies by SRFB to the Sponsor under this Agreement shall be made in accord with applicable statutes, rules and published agency policies, all conditioned upon proof of compliance with the terms of this Agreement by the Sponsor. SRFB 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 and approved by the Director. A Project is considered "complete" when (1) all approved or required development activities are complete, (2) a final Project report is submitted to SRFB with the Sponsor's final request for reimbursement, (3) the completed Project has been approved by SRFB, and {4) fiscal transactions are complete, (B) Compliance and Payment. The obligation of SRFB to pay any amount(s) under this Agreement is expressly conditioned upon strict compliance with the terms of this Agreement by the Sponsor. (C) Invoice Frequency. Sponsor must submit at least one invoice voucher a year that should account for all activity up to end including June 30, the last day of the State's fiscal year. Sponsors should submit the year-end billing to SRFB not later than July 15th of each year. Final reimbursement requests should be submitted to SRFB within ninety (90) days of either completion of the Project or the termination date, whichever comes first. AUGUST 23, 1999 Project Agreement - General Provisions-5 Section 1 1: Development Projects, Records Retention, Contracts, Change Orders The following provisions shall be in force only if the Project described in this Agreement is for fish passage barrier removal, habitat restoration, or fish screening projects: iA) Construction Document Review and Approval. Sponsor agrees to retain one copy of all construction plans and specifications. These plans must be available for inspection by SRFB for six years from project completion. (B) Contracts for Construction. Contracts for construction shall be awarded through a process of competitive bidding if required by state law. Copies of all bids and contracts awarded shall be retained by the Sponsor and available for SRFB review. Where bids are substantially in excess of Project estimates, SRFB may, by notice in writing, suspend the Project for determination of appropriate action, which may include termination of the Agreement. (C) Construction Contract Change Order. Sponsors must get prior written approval for all change orders that reduce or significantly change the scope of the Project as described to and approved by SRFB. Section 12: Construction, Operation, Use and Maintenance of Assisted Projects Sponsor's construction, operation, use and maintenance activity shall be performed: (A) Laws. According to applicable federal, state, and local laws and regulations, including public health standards and building codes. (B) Safety. In a reasonably safe condition for public use. Section 13: 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 SRFB for expenditure for this Agreement in any biennial fiscal period, SRFB shaiJ 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 SRFB participation is suspended under this .section for a continuous period of one year, SRFB'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 14: Records and Reports The Sponsor shall maintain books, records, documents and other evidence of accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement. These records shall be subject at all reasonable times to inspection, review, or audit by personnel duly authorized by SRFB, the Office of the State Auditor, and federal officials so authorized by law, rule, regulation, or contract. The Sponsor will retain all books, records, documents, and other materiats relevant to this Agreement for six years after settlement, and make them available for inspection by persons authorized under this prevision. Section 15: Authority to Inspect/Right of Entry The Sponsor shall provide right of acoess to its lands and facilities to SRFB, 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, with a minimum of 24 hours notice except in the case of an emergency, in order to monitor and evaluate performance, compliance, and/or quality assurance under this Agreement. AUGUST 23, 1999 Project Agreement · General Provisions-6 Section 16: Acknowledgments (A) In Publications. The Sponsor shall include language which acknowledges the funding contribution of the program to this Project in any release or other publication developed or modified for, or referring to, the Project. (B) Ceremonies. The Sponsor shall provide SRFB with not less than two weeks notice before a dedication ceremony for this Project. The Sponsor shall verbally acknowledge the program's funding contribution at all dedication ceremonies. Section 17: Statement of Federal Funding 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: (A) The percentage of the total costs of the project which will be financed with federal money; (B) The dollar amount of federal funds for the project; and (C) The percentage and dollar amount of the total costs of the project that will be financed by nongovernmental sources. Section 18: Nonprofit Sponsors A nonprofit or not-for-profit organization sponsor shall: (A) Strive to maintain a nonprofit or not-for-profit status (including registering with the Washington Secretary of State) throughout the Sponsor's obligation to the Project as identified in this Agreement. However, should a change in status become inevitable (for example, due to dissolution), within 30 days 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 of complying with the terms and conditions of this Agreement. (B) Provide for operation and maintenance of the assisted facility. Should the Sponsor fail in this obligation for any reason, the Project will be considered a failed project and subject to all remedies available to SRFB. (C) Not discriminate on the basis of age, disability, gender, income, race, or religion, in the performance of this project. Section 19: Industrial Insurance Coverage Before performing work under this Agreement, the Sponsor shall provide or purchase industrial insurance coverage for the Sponsor's employees, as may be required of an "employer" as defined in Title 51 RCW, and shall maintain full compliance with Title 51 RCW during the performance of duties and services, under this agreement within the project performance period. Should the Sponsor fail to secure industrial insurance coverage or fail to pay premiums, as may be required under Title 51 RCW, the Agency may deduct the amount of premiums and any penalties owing from the amounts payable to the Sponsor under this Agreement and transmit the same to the Department of Labor and Industries, Division of Industrial Insurance. This provision does not waive any right under RCW 51.12.050 to collect from the Sponsor amounts paid by the Agency. SRFB will not be responsible for payment of industrial insurance premiums or for any other claim or benefit for the Sponsor, or any Subcontractor or employee of the Sponsor, which might arise under the industrial insurance laws during performance of duties and service(s) under this Agreement. If the Washington State Department of Labor and Industries, upon audit, determines that industrial insurance payments are due and owing as a result of work performed under this Agreement, those payments shall be made by the Sponsor; the Sponsor shall indemnify the SRFB and guarantee payment of such amounts. Industrial insurance coverage through the Department of Labor and Industries is optional for sole proprietors, partners, corporate officers and others, per RCW 51.12.020. AUGUST 24, 1999 Project Agreement · General Provisions-7 Section 20: Buy American Act The sponsor agrees to comply with the "Buy American Act" (41 U.S.C. lOa-lOc) in expending federal funds provided under this grant, To the extent practicable, all equipment and products purchased with federal funds provided by this grant should be American made. Section 21: 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 shaft 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: (1) Applicable federal and/or state statutes, regulations policies and procedures including applicable federal Office of Management and Budget (OMB) Circulars and federal and state executive orders; (2) This Agreement, General Provisions, and/or Special Provisions; and (3) Any other attachments or provisions incorporated by reference or otherwise stated in this Agreement. Section 22: Governing Law/Venue This Agreement shall he 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 SRFB and a federally recognized indian tribe, the following Governing LawNenue applies: (1) The State of Washington agrees that it shall initiate any lawsuit against a federally recognized Indian tribe arising out of or relatlng to the performance, breach or enforcement of this agreement in Federat 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. (2) Any judicial award, determination, order, decree or other relief, whether in iaw or equity or otherwise, resulting from the action shall be binding and enforceable upon the parties. Any money judgment or award against the Tribe, tribal officers and members, or the State of Washington and its officers and employees may not exceed the amount provided for in Paragraph F. of the Agreement. (3) The Tribe hereby waives its sovereign immunity as necessary to give effect to this section, and the State of Washington has waived its immunity to suit in state court. These waivers are only for the benefit of the Tribe 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 attorney's fees. Section 23: Waiver of Default Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of 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 24: Application Representations -- Misrepresentation or Inaccuracy or Breach SRFB relies upon 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. AUGUST23,1999 ProjectAgreement. GeneralProvisions-8 Section 25: Indemnity The Sponsor shah defend, protect and hold harmless the State of Washington, SRFB, lAC, or any employees thereof, from and against all claims, suits or actions arising from the Sponsor's acts which are libelous or slanderous, which result in injury to persons or property, which violate a right of confidentiality, or which constitute an infringement of any copyright, patent, trademark or trade name through use or reproduction of material of any kind. Section 26: Termination and Other Remedies SRFB may require strict compliance by the Sponsor with the terms of this Agreement including, but not limited to, the requirements of the applicable statutes, rules and agency policies which are incorporated into this Agreement, and with the representations of the Sponsor in its application for a grant as finally approved by SRFB. SRFB, or the Director, may suspend, or may terminate, SRFB's obligation to provide funding to the Sponsor under this Agreement: · In the event of any breach by the Sponsor of any of the Sponsor's obligations under this Agreement; or · If the Sponsor fails to make progress satisfactory to SRFB or Director toward completion of the Project by the completion date set out in this Agreement; or · If in the opinion of SRFB or Director, the Sponsor fails to make progress necessary to complete any other project assisted with grant funds from SRFB within the completion date set out by agreement with SRFB for that project. In the event this Agreement is terminated by SRFB 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 SRFB or Director may require that any amount paid be repaid to SRFB for redeposit into the State or Federal accounts from which the funds were derived. The Sponsor understands and agrees that SRFB 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 SRFB. No remedy available to SRFB shall be deemed exclusive. SRFB may elect to exercise any, any combination, or all of the remedies available to it under this Agreement, or under any provision of law, common law, or equity. Section 27: Disputes Except as may otherwise be provided in this Agreement, when a bona fide dispute arises between the Sponsor and SRFB or its Director, 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 hearing 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 SRFB project number. In order for 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 upon, the third person shall be chosen by SRFB'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 upon written material if the parties so agree. The disputes panel shall be governed by the provisions of this Agreement in deciding the disputes. AUGUST 23, 1999 Project Anreemem · General Provi$ier~e-9 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 hearing 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 28: Severability If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision and to this end the provisions of this Agreement are declared to be severable. END -