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Agreement with RCO for MF Newaukum Fish Passage Site Project BEFORE THE BOARD OF COUNTY COMMISSIONERS OF LEWIS COUNTY, WASHINGTON IN THE MATTER OF: Approving the Board of County Commissioners (BOCC) } Chair to sign the Project Agreement between } Resolution No. 18- 31 Lewis County and the Recreation and Conservation } Office (RCO)for the MF Newaukum Fish Passage - Site ID 021 (94001) (15790) project } WHEREAS, Public Works has listed the MF Newaukum Fish Passage - Site ID 021 (94001) (15790) project on the annual maintenance program; and WHEREAS, Public Works has received grant funding administered through the RCO for the MF Newaukum Fish Passage - Site ID 021 (94001) (15790) project; and WHEREAS, the conditions of receiving the grant funding requires a Project Agreement signed by the BOCC Chair; and WHEREAS, the Public Works County Engineer has reviewed the Project Agreement between Lewis County and the RCO. NOW, THEREFORE BE IT RESOLVED that the BOCC has determined that proceeding with the Project Agreement for the MF Newaukum Fish Passage - Site ID 021 (94001) (15790) project to be administered by the RCO is in the best public interest and hereby approves the Chair of the BOCC to sign. PASSED IN REGULAR SESSION this 10th day of December, 2018. APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS Jona L. eyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON � L, y: Deputy Prosecuting Attorney Ed - J. Fund, Lf. 4 ATTEST: 'obert C. Jackson, Vice Chair Rieva Lester, Clerk of the Lewis County Vacant, Commissioner Board of County Commissioners •••5 OOUN7 ••• • 5ARO s • •• SINCE c)• e' \8 1845 ocei z• •••'G7ONS15t�•• •°•••• Page 1 of 1 WASHINGTON STATE Recreation and Conservation Office Recreation and Conservation Office Agreement Project Sponsor: Lewis County Public Works Project Number: 18-2602P Project Title: MF Newaukum Fish Passage_Site ID 021(94001)(15790) Approval Date: 12/4/2018 A. PARTIES OF THE AGREEMENT This Recreation and Conservation Office Agreement(Agreement)is entered into between the State of Washington the Recreation and Conservation Office(RCO),P.O.Box 40917,Olympia,Washington 98504-0917 and Lewis County by and through the Lewis County Public Works(Sponsor,and primary Sponsor),2025 NE KreskyAve,Chehalis,WA 98532,and shall be binding on the agents and all persons acting by or through the parties. The Primary Sponsor's Data Universal Numbering System(DUNS)Number is 079272555. All Sponsors are equally and independently subject to all the conditions of this Agreement except those conditions that expressly apply only to the primary Sponsor. Per the Applicant Resolution/Authorizations submitted by all sponsors(and on file with the RCO),the identified Authorized Representative(syAgent(s)have full authority to legally bind the Sponsors)regarding all matters related to the project,including but not limited to,full authority to:(1)sign a grant application to the funding board for grant assistance,(2)enter into this project agreement on behalf of the Sponsor(s)(including indemnification and waiver of sovereign immunity,if applicable,as provided therein),(3)enter into any amendments thereto on behalf of the Sponsors,and(4)make any decisions and submissions required with respect to the project.Agreements and amendments must be signed by the Authorized Representative/Agent(s)of all sponsors,unless otherwise allowed in Section J. If a Sponsor wishes to change its Authorized Representative/Agent as identified on the original signed Applicant Resolution/Authorization,the Sponsor has the obligation to provide to RCO in writing a new Applicant Resolution/Authorization signed by its governing body.Unless a new Applicant Resolution/Authorization has been provided,RCO will be entitled to rely upon the fact that the current Authorized Representative/Agent has the authority to bind the Sponsor to the Agreement(including any amendments thereto)and decisions related to implementation of the Agreement. For the purposes of this Agreement,as well as for grant management purposes with RCO,only the primary Sponsor may act as a fiscal agent to obtain reimbursements(see Section 11.PROJECT REIMBURSEMENTS). B. PURPOSE OF AGREEMENT This Agreement sets out the terms and conditions by which a grant is made from the State Building Construction Account of the State of Washington.The grant is administered by the Recreation and Conservation Office(RCO). C. DESCRIPTION OF PROJECT Lewis County Public Works is requesting$97,730 for the design of a fish passable structure at river mile 5.65 of the Middle Fork Newaukum River,Barrier Site ID 021(94001)(15790).Barrier 021(94001)(15790)is an existing 5'x 7' corrugated metal squash pipe,located at milepost(MP) 15.79 on Centralia-Alpha Road.This barrier was calculated to be 33 percent passable due to velocity.Once constructed this fish passable structure will restore access to 5.65 linear miles of potential habitat for all life stages of coho salmon and steelhead trout/. 1 While this project would provide no additional access until the downstream barrier,Site 021(45011)(07070)is removed,Site 021(45011)(07070)has received funding for replacement from the Fish Barrier Removal Board and is anticipated to be replaced with a fish passable structure in 2019.Additionally,all remaining upstream barriers have received funding through SRFB and USFWS and are anticipated to be replaced in 2018. D. PERIOD OF PERFORMANCE The period of performance begins on November 20,2018(project start date)and ends on May 15,2020(project end date). No allowable cost incurred before or after this period is eligible for reimbursement unless specifically provided for by written amendment or addendum to this Agreement,or specifically provided for by applicable RCWs,WACs, and any applicable RCO manuals as of the effective date of this Agreement. The Sponsor must request extensions of the period of performance at least 60 days before the project end date. The Sponsor has obligations beyond this period of performance as described in Section F:LONG-TERM OBLIGATIONS. E. STANDARD TERMS AND CONDITIONS INCORPORATED The Standard Terms and Conditions of the Recreation and Conservation Office Agreement are hereby incorporated by reference as part of this Agreement. RCO 18-2602P Revision Date: 1/11/2018 Page 1 of 30 F. LONG-TERM OBLIGATIONS For this planning project,the sponsor's on-going obligation shall be the same as the period of performance identified in Section D:Period of Performance. G. PROJECT FUNDING The total grant award provided for this project shall not exceed$97,730.00. The RCO shall not pay any amount beyond that approved for grant funding of the project and within the percentage as identified below_The Sponsor shall be responsible for all total project costs that exceed this amount.The minimum matching share provided by the Sponsor shall be as indicated below: Percentage Dollar Amount Source of Funding Office-FBRB Watershed Pathway 100.00% $97,730.00 State Project Sponsor 0.00% $0.00 Total Project Cost 100.00% $97,730.00 H. FEDERAL FUND INFORMATION This Agreement is not a federal subaward.This Agreement is funded with a grant from the State of Washington. I. RIGHTS AND OBLIGATIONS INTERPRETED IN LIGHT OF RELATED DOCUMENTS All rights and obligations of the parties under this Agreement are further specified in and shall be interpreted in light of the Sponsor's application and the project summary and eligible scope activities under which the Agreement has been approved as well as documents produced in the course of administering the Agreement,including the eligible scope activities,the milestones report,progress reports,and the final report. Provided,to the extent that information contained in such documents is irreconcilably in conflict with this Agreement,it shall not be used to vary the terms of the Agreement,unless those terms are shown to be subject to an unintended error or omission.This°Agreement-as used here and elsewhere in this document,unless otherwise specifically stated,has the meaning set forth in the definitions of the Standard Terms and Conditions of the Recreation and Conservation Office Agreement. J. AMENDMENTS TO AGREEMENT Except as provided herein,no amendment(including without limitation,deletions)of any of the terms or conditions of this Agreement will be effective unless provided in writing signed by all parties. Extensions of the period of performance and minor scope adjustments consented to in writing(including ema()by the Sponsor need only be signed by RCO's director or designee,unless otherwise provided for in another agreement a Sponsor has with the RCO.This exception does not apply to a federal government Sponsor or a Sponsor that requests and enters into a formal amendment for extensions or minor scope adjustments. It is the responsibility of a Sponsor to ensure that any person who signs an amendment on its behalf is duly authorized to do so,and such signature shall be binding on the Sponsor if the representative/agent signing has been authorized to do so by Applicant Resolution/Authorization provided to the RCO and such Applicant Resolution/Authorization has not been withdrawn by the governing body in a subsequent resolution. Any amendment to this Agreement,unless otherwise expressly stated,shall be deemed to include all current federal, state,and local government laws and rules,and policies applicable and active and published in the applicable RCO manuals or on the RCO website in effect as of the effective date of the amendment,without limitation to the subject matter of the amendment Provided,any update in law,rule,policy or a manual that is incorporated as a result of an amendment shall apply only prospectively and shall not require that an act previously done in compliance with existing requirements be redone. K. COMPLIANCE WITH APPLICABLE STATUTES,RULES,AND POLICIES This Agreement is governed by,and the sponsor shall comply with,all applicable state and federal laws and regulations,applicable RCO manuals as identified below,and any applicable federal program and accounting rules effective as of the dale of this Agreement,and with respect to any amendments tc this Agreement,as of the effective date of that amendment_Provided,any update in law,rule,policy or a manual that is incorporated as a result of an amendment shall apply only prospectively and shall not require that an act previously done in compliance with existing requirements be redone. Fcr the purpose of this Agreement the following RCO manuals are deemed applicable and shall apply as terms of this Agreement: Brian Abbott Fish Barrier Removal Board-Manual 22 Reimbursements-Manual B Restoration Projects-Manual 5 Provided,where a manual refers to a funding board's responsibility and/or authority,the RCO director shall have that responsibility and/or authority. RCO 18-2602P Revision Date: 1/11/2018 Page 2 of 30 L. SPECIAL CONDRIONS Special Condition:Preliminary and Final designs completed to Manual 22 Appendix C specifications must be submitted to RCO and approved by WOFW staff prior to implementing construction activities"Allow up to 30 days for review. M. AGREEMENT CONTACTS The parties will provide all written communications and notices under this Agreement to the mail address or the email address listed below if not both: Sponsor Project Contact RCO Contact Name: Ann Weckback Josh Lambert Title: Environmental Planner Natural Resources Building Address: 2025 NE Kresky Ave PO Box 40917 Chehalis,WA 98532 Olympia,Washington 98504-0917 Email: ann.weckback @lewiscountywa.gov Josh.Lambert@nco.wa.gov These addresses and contacts shall be effective until receipt by one party from the other of a written notice of any change.Decisions relating to the Agreement must be made by the Authorized Representative/Agent,who may or may not be the Project Contact for purposes of notices and communications. N. ENTIRE AGREEMENT 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. O. EFFECTIVE DATE This Agreement,for project 18-2602P,shall be subject to the written approval of the RCO's authorized representative and shall not be effective and binding until the date signed by both the Sponsor and the RCO,whichever is later (effective date).Reimbursements for eligible and allowable costs incurred within the period of performance identified in Section D:PERIOD OF PERFORMANCE are allowed only when this Agreement is fully executed and an original is received by RCO. The Sponsor has read,fully understands,and agrees to be bound by all terms and conditions as set forth in this Agreement and the Standard Terris and Conditions of the Recreation and Conservation Office Agreement The signators listed below represent and warrant their authority to bind the parties to this Agreement Lewis County Putt" Works / By: Date: 12/i i 7 /g C[�� Name: (printed) . 4 rt'^CJ Title: ('r 1-11-1 (:;_)t��c RECEIVED DEC 1 8 2018 State of Washington Recreation and Conservation Office On behalf of the RCO WA STATE RECREATION AND CONSERVATION OFFICE By: /I Date: ) t /d- � Kaleen Cottingham Director Recreation and Conservation Office Pr pproved asto : By: Date: June 13,2016 Assistant Attorney General RCO 18-2602P Revision Date: 1/11/2018 Page 3 of 30 Table of Contents Recreation and Conservation Office Agreement 1 Standard Terms and Conditions of the Recreation and Conservation Office Agreement 4 SECTION 1. CITATIONS,HEADINGS AND DEFINITIONS 6 SECTION 2. PERFORMANCE BY THE SPONSOR 10 SECTION 3. ASSIGNMENT 10 SECTION 4. RESPONSIBILITY FOR PROJECT 10 SECTION 5. INDEMNIFICATION 10 SECTION 6. INDEPENDENT CAPACITY OF THE SPONSOR 11 SECTION 7. CONFLICT OF INTEREST 11 SECTION 8. COMPLIANCE WITH APPLICABLE LAW 11 SECTION 9. RECORDS 13 SECTION 10. PROJECT FUNDING 13 SECTION 11. PROJECT REIMBURSEMENTS 14 SECTION 12. ADVANCE PAYMENTS 16 SECTION 13. RECOVERY OF PAYMENTS 16 SECTION 14. COVENANT AGAINST CONTINGENT FEES 16 SECTION 15. INCOME(AND FEES)AND USE OF INCOME 16 SECTION 16. PROCUREMENT REQUIREMENTS 17 SECTION 17. TREATMENT OF EQUIPMENT AND ASSETS 18 SECTION 18. RIGHT OF INSPECTION 19 SECTION 19. STEWARDSHIP AND MONITORING 19 SECTION 20. PREFERENCES FOR RESIDENTS 19 SECTION 21. ACKNOWLEDGMENT AND SIGNS 19 SECTION 22. PROVISIONS FOR BOATING PROJECT GRANTS 20 SECTION 23. PROVISIONS APPLYING TO DEVELOPMENT, MAINTENANCE,RENOVATION, 20 AND RESTORATION PROJECTS SECTION 24. PROVISIONS APPLYING TO ACQUISITION PROJECTS 21 SECTION 25. LONG-TERM OBLIGATIONS OF THE PROJECTS AND SPONSORS 22 SECTION 26. CONSTRUCTION, OPERATION, USE AND MAINTENANCE OF ASSISTED 23 PROJECTS SECTION 27. RECORDED NOTICE OF GRANT 24 SECTION 28. PROVISIONS RELATED TO CORPORATE(INCLUDING NONPROFIT) 24 SPONSORS SECTION 29. PROVISIONS FOR FEDERAL SUBAWARDS ONLY 24 RCO 18-2602P Revision Date: 1/11/2018 Page 4 of 30 SECTION 30. ORDER OF PRECEDENCE 33 SECTION 31. LIMITATION OF AUTHORITY 33 SECTION 32. WAIVER OF DEFAULT 33 SECTION 33. APPLICATION REPRESENTATIONS-MISREPRESENTATIONS OR 33 INACCURACY OR BREACH SECTION 34. SPECIFIC PERFORMANCE 34 SECTION 35. TERMINATION AND SUSPENSION 34 SECTION 36. DISPUTE HEARING 35 SECTION 37. ATTORNEYS'FEES 36 SECTION 38. GOVERNING LAW/VENUE 36 SECTION 39. PROVISIONS APPLICABLE ONLY IF FEDERALLY RECOGNIZED INDIAN TRIBE 36 IS THE SPONSOR SECTION 40. SEVERABILITY 37 RCO 18-2602P Revision Date' 1/11/2018 Page 5 of 30 WASHINGTON STATE Recreation and Standard Terms and Conditions Conservation Office of the Recreation and Conservation Office Agreement Project Sponsor: Lewis County Public Works Project Number: 18-2602P Project Title: MF Newaukum Fish Passage_Site ID 021(94001)(15790) Approval Date: 12/4/2018 SECTION 1. CITATIONS,HEADINGS AND DEFINITIONS A. Any citations referencing specific documents refer to the current version on the effective date of this Agreement or the effective date of any amendment thereto. 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 project—A project that purchases or receives a donation of fee or less than fee interests in real property_These interests include, but are not limited to, conservation easements,access/trail easements, covenants,water rights, leases,and mineral rights. Agreement or project agreement—Agreement or project agreement—The document entitled "Recreation and Conservation Office Agreement"accepted by all parties to the present transaction, including without limitation these Standard Terms and Conditions of the Project Agreement,all attachments,addendums, and amendments, and any intergovernmental agreements or other documents that are incorporated into the RCO Office Agreement subject to any limitations on their effect. applicable manual(s)-A manual designated in this Agreement to apply as terms of this Agreement, subject to substitution of the"RCO director"for instances where the term"board"occurs. applicable WAC(s)-Designated chapters or provisions of the Washington Administrative Code that are deemed under this Agreement to apply as terms of the Agreement, subject to substitution of the 'RCO director"for instances where the term"board"occurs. applicant—Any party that meets the qualifying standards, including deadlines,for submission of an application soliciting a grant of funds administered by RCO. application—The documents and other materials that an applicant submits to the RCO to support the applicant's request for grant funds; this includes materials required for the-Application'in the RCO's automated project information system, and other documents as noted on the application checklist including but not limited to legal opinions, maps, plans, evaluation presentations and scripts. Authorized Representative/Agent—A Sponsor's agent(employee, political appointee,elected person, etc.)authorized to be the signatory of this Agreement and any amendments requiring a Sponsor signature. This person has the signature authority to bind the Sponsor to this Agreement, grant, and project. C.F.R.—Code of Federal Regulations contractor—An entity that receives a contract from a Sponsor related to performance of work or another obligation under this Agreement. RCO 18-2602P Revision Date: 1111)2018 Page 6 of 30 conversion—A conversion occurs 1)when facilities acquired, developed, renovated or restored within the project area are changed to a use other than that for which funds were approved,without obtaining prior written formal RCO or board approval, 2)when property interests are conveyed to a third party not otherwise eligible to receive grants in the program from which funding was approved without obtaining prior written formal RCO or board approval, or 3)when obligations to operate and maintain the funded property are not complied with after reasonable opportunity to cure. development project—A project that results in the construction of,or work resulting in, new elements, including but not limited to structures, facilities, and/or materials to enhance outdoor recreation resources. director—The chief executive officer of the Recreation and Conservation Office or that person's designee_ education project—A project that provides information,education, and outreach programs for the benefit of outdoor recreationists. education and enforcement project—A project that provides information, education,and outreach programs;encourages responsible recreational behavior, and may provide law enforcement for the benefit of outdoor recreationists. effective date—The date when the signatures of all parties to this agreement are present in the agreement_ enhancement project—1)A project that brings a site back to its historic function as part of a natural ecosystem or that improves the ecological functionality of a site, or 2)a project that(i)supports hatchery reform to improve hatchery effectiveness to minimize impacts to wild fish populations, (ii) ensures compatibility between hatchery production and salmon recovery programs,or(iii)supports sustainable fisheries(WAC 420.04.010). equipment—Tangible personal property (including information technology systems)having a useful service life of more than one year and a per-unit acquisition cost which equals or exceeds the lesser of the capitalization level established by the Sponsor or$5,000(2 C.F.R. §200.33 (2013)). funding board or board—The Washington State Recreation and Conservation Funding Board, and Washington State Salmon Recovery Funding Board. Funding Entity—the entity that awards the grant and provides the funding that is the subject to this Agreement. This entity may be the RCO if it is the source of the grant. The Funding Entity may also be a different entity that provides the funding and contracts with the RCO to administer the grant. grant-the funding awarded that is the subject of this Agreement. grant program —The source of the grant funds received. May be an account in the state treasury, or a grant category within a larger grant program, or a federal source. indirect cost—Costs incurred for a common or joint purpose benefitting more than one cost objective,and not readily assignable to the cost objectives specifically benefitted, without effort disproportionate to the results achieved (2 C.F.R. §200.56(2013)). long-term compliance period—The period of time after the project end date or end of the period of performance (depending on the project types and grant program). During this period,the Sponsor has continuing obligations under the Agreement. This period may have a nonspecific end date(in perpetuity)or an expressly specified number of years. long-term obligations—Sponsor's obligations after the project end date,as specified in the Agreement and applicable regulations and policies. RCO 18-2602P Revision Date: 1/11/2018 Page 7 of 30 landowner agreement—An agreement that is required between a Sponsor and landowner for projects located on land not owned, or otherwise controlled, by the Sponsor. maintenance—A project that maintains existing areas and facilities through repairs and upkeep for the benefit of outdoor recreation or salmon recovery. maintenance and operation—A project that maintains and operates existing areas and facilities through repairs, upkeep,and routine services for the benefit of outdoor recreationists_ match or matching share—The portion of the total project cost provided by the Sponsor. milestone—An important event with a defined date to track an activity related to implementation of a funded project and monitor significant stages of project accomplishment. monitoring project—Means a project that tracks the effectiveness of salmon recovery restoration actions, or provides data on salmon populations or their habitat conditions. monitoring and research project—Means a project that tracks the effectiveness of salmon recovery restoration actions,or provides data on salmon populations or their habitat conditions. Office—Means the Recreation and Conservation Office or RCO. notice of grant—As required by RCO or another authority, a document that has been legally recorded in the county or counties where the project property is located that describes the grant funded project located on the property, the funding sources, and agencies responsible for awarding the grant_ pass-through entity—A non-Federal entity that provides a subaward to a subrecipient to carry out part of a Federal program (2 C. F. R. § 200.74 (2013)). If this Agreement is a federal subaward, RCO is the pass-through entity. period of performance—The period beginning on the project start date and ending on the project end date. planning—A project that results in one or more of the following :a study,a plan, assessment, project design, inventory,construction plans and specifications, and permits. pre-agreement cost—A project cost incurred before the period of performance. primary Sponsor—The Sponsor who is not a secondary Sponsor and who is specifically identified in the Agreement as the entity to which RCO grants funds to and authorizes and requires to administer the grant. This administration includes but is not limited to acting as the fiscal agent for the grant(e.g. requesting and accepting reimbursements, submitting reports). Primary Sponsor includes its officers, employees,agents and successors. project—An undertaking that is, or may be,funded in whole or in part with funds administered by RCO. project area,(for projects where WAC 286 is applied)—A geographic area that delineates a grant assisted site which is subject to project agreement requirements(WAC 286.04.010). project area,(for projects where WAC 420 is applied) -The area consistent with the geographic limits of the scope of work of the project and subject to project agreement requirements. For restoration projects,the project area must include the physical limits of the project's final site plans or final design plans. For acquisition projects, the project area must include the area described by the legal description of the properties acquired for or committed to the project(WAC 420.04.010). RCO 18-2602P Revision Date: 1/11/2018 Page B of 30 project end date—The specific date identified in the Agreement on which the period of performance ends,as may be changed by amendment. This date is not the end date for any long-term obligations. project start date—The specific date identified in the Agreement on which the period of performance starts. research project—Means a project that studies salmon and the effectiveness of recovery restoration efforts on the population or habitat condition. RCO—Recreation and Conservation Office—The state agency that awards and/or administers the grant that is the subject of this Agreement. RCO includes the director and staff. reimbursement—RCO's payment of funds from eligible and allowable costs that have already been paid by the Sponsor per the terms of the Agreement. renovation project—A project intended to improve an existing site or structure in order to increase its useful service life beyond current expectations or functions.This does not include maintenance activities to maintain the facility for its originally expected useful service life. restoration project—A project that brings a site back to its historic function as part of a natural ecosystem or improving the ecological functionality of a site. restoration and enhancement project—A project that brings a site back to its historic function as part of a natural ecosystem or that improves the ecological functionality of a site or a larger ecosystem which improvement may include benefiting fish stocks. RCW— Revised Code of Washington secondary Sponsor—One of two or more Sponsors who is not a primary Sponsor. Only the primary Sponsor may be the fiscal agent for the project. Sponsor—A Sponsor is an organization that is listed in and has signed this Agreement. Sponsor Authorized Representative/Agent—A Sponsor's agent (employee,political appointee, elected person, etc.) authorized to be the signatory of this Agreement and any amendments requiring a Sponsor signature. This person has the signature authority to bind the Sponsor to this Agreement, grant, and project. subaward—Funds allocated to the RCO from another organization,for which RCO makes available to or assigns to another organization via this Agreement. Also, a subaward may be an award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of any award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a federal or other program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.Also see 2 C.F.R.§200.92 (2013). For federal subawards, a subaward is for the purpose of carrying out a portion of a Federal award and creates a federal assistance relationship with the subrecipient(2 C.F.R. § 200.330(2013)). If this Agreement is a federal subaward, the subaward amount is the grant program amount in Section G: Project Funding. subrecipient—Subrecipient means an entity that receives a subaward. For non-federal entities receiving federal funds, a subrecipient is an entity that receives a subaward from a pass-through entity to carry out part of a federal program; but does not include an individual that is a beneficiary of such program. A subrecipient may also be a recipient of other federal awards directly from a federal awarding agency(2 C.F.R. § 200.93 (2013)). If this Agreement is a federal subaward,the Sponsor is the subrecipient. RCO 18-2602P Revision Date: 1/11/2018 Page 9 of 30 useful service life—Period during which an asset or property is expected to be useable for the purpose it was acquired,developed, renovated, and/or restored per this Agreement. WAC—Washington Administrative Code. SECTION 2. PERFORMANCE BY THE SPONSOR The Sponsor shall undertake the project as described in this Agreement, 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 RCO. All submitted documents are incorporated by this reference as if fully set forth herein. Timely completion of the project and submission of required documents, including progress and final reports, is important. Failure to meet critical milestones or complete the project, as set out in this Agreement, is a material breach of the Agreement_ 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 RCO. SECTION 4. RESPONSIBILITY FOR PROJECT While RCO administers the grant that is the subject of this Agreement,the project itself remains the sole responsibility of the Sponsor.The RCO and Funding Entity (if different from the RCO)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.When a project is Sponsored by more than one entity,any and all Sponsors are equally responsible for the project and all post-completion stewardship responsibilities and long-term obligations unless otherwise stated in this Agreement. The RCO has no responsibility for reviewing, approving, overseeing or supervising design or construction of the project and leaves such review, approval, oversight and supervision exclusively to the Sponsor and others with expertise or authority. In this respect, the RCO will act only to confirm at a general, lay,and nontechnical level, solely for the purpose of compliance and payment and not for safety or suitability,that the project has apparently been completed as per the Agreement. SECTION 5. INDEMNIFICATION The Sponsor shall defend, indemnify, and hold the State and its officers and employees harmless from all claims, demands,or suits at law or equity arising in whole or in part from the actual or alleged acts, errors, omissions or negligence in connection with this Agreement (including without limitation all work or activities thereunder), or the breach of any obligation under this Agreement by the Sponsor or the Sponsor's agents, employees, contractors, subcontractors, or vendors, of any tier, or any other persons for whom the Sponsor may be legally liable. Provided that nothing herein shall require a Sponsor to defend or indemnify the State against and hold harmless the State from claims, demands or suits based solely upon the negligence of the State, its employees and/or agents for whom the State is vicariously liable. Provided further that if the claims or suits are caused by or result from the concurrent negligence of(a)the Sponsor or the Sponsor's agents, employees, contractors, subcontractors or vendors,of any tier,or any other persons for whom the Sponsor is legally liable, and (b)the State its employees and agents for whom it is vicariously liable,the indemnity obligation shall be valid and enforceable only to the extent of the Sponsor's negligence or the negligence of the Sponsor's agents, employees,contractors,subcontractors or vendors, of any tier, or any other persons for whom the Sponsor may be legally liable. This provision shall be included in any agreement between Sponsor and any contractors, subcontractor and vendor,of any tier. RCO 18-2602P Revision Date. 1/11/2018 Page 10 of 30 The Sponsor shall also defend, indemnify, and hold the State and its officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents,proprietary information, know-how, copyright rights or inventions by the Sponsor or the Sponsor's agents,employees, contractors, subcontractors or vendors, of any tier, or any other persons for whom the Sponsor may be legally liable, in performance of the work under this Agreement or arising out of any use in connection with the Agreement of methods, processes,designs, information or other items furnished or communicated to the State, its agents, officers and employees pursuant to the Agreement. Provided,this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets,patents, proprietary information, know-how, copyright rights or inventions resulting from the State's, its agents', officers'and employees'failure to comply with specific written instructions regarding use provided to the State, its agents, officers and employees by the Sponsor, its agents, employees,contractors, subcontractors or vendors, of any tier,or any other persons for whom the Sponsor may be legally liable. As part of its obligations provided above, the Sponsor specifically assumes potential liability for actions brought by the Sponsor's own employees or its agents against the State and, solely for the purpose of this indemnification and defense,the Sponsor specifically waives any immunity under the state industrial insurance law, RCW Title 51. The RCO and Funding Entity are included within the term State,as are all other agencies,departments, boards, councils, committees,divisions, bureaus, offices, societies, or other entities of state government. 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 RCO or Funding Entity. The Sponsor will not hold itself out as nor claim to be an officer, employee or agent of the RCO or the Funding Entity, 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 RCW 41.06. 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, RCW 42.52;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 herein, 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 or this Agreement. SECTION 8. COMPLIANCE WITH APPLICABLE LAW In implementing the Agreement,the Sponsor shall comply with all applicable federal, state, and local laws (including without limitation all applicable ordinances, codes, rules, and regulations). Such compliance includes,without any limitation as to other applicable laws,the following laws: A. Nondiscrimination Laws.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 RCO or Funding Entity. The Sponsor is responsible for any and all costs or liability arising from the Sponsor's failure to so comply with applicable law . RCO 18-2602P Revision Date: 1/11/2018 Page 11 of 30 B. Secular Use of Funds. No funds awarded under this grant may be used to pay for any religious activities,worship,or instruction,or for lands and facilities for religious activities,worship,or instruction_Religious activities,worship,or instruction may be a minor use of the grant supported recreation and conservation land or facility. C. Wages and Job Safety.The Sponsor agrees to comply with all applicable laws,regulations,and policies of the United States and the State of Washington or other jurisdiction which affect wages and job safety.The Sponsor agrees when state prevailing wage laws(RCW 39.12)are applicable,to comply with such laws,to pay the prevailing rate of wage to all workers, laborers,or mechanics employed in the performance of any part of this contract,and to file a statement of intent to pay prevailing wage with the Washington State Department of Labor and Industries as required by RCW 39.12.040_ The Sponsor also agrees to comply with the provisions of the rules and regulations of the Washington State Department of Labor and Industries. 1. Exception,Service Organizations of Trail and Environmental Projects(RCW 79A.35.130). If allowed by state and federal law and rules, participants in conservation corps programs offered by a nonprofit organization affiliated with a national service organization established under the authority of the national and community service trust act of 1993,P.L. 103-82,are exempt from provisions related to rates of compensation while performing environmental and trail maintenance work provided: (1)The nonprofit organization must be registered as a nonprofit corporation pursuant to RCW 24.03; (2)The nonprofit organization's management and administrative headquarters must be located in Washington; (3)Participants in the program must spend at least fifteen percent of their time in the program on education and training activities;and (4)Participants in the program must receive a stipend or living allowance as authorized by federal or state law. Participants are exempt from provisions related to rates of compensation only for environmental and trail maintenance work conducted pursuant to the conservation corps program. D. Archaeological and Cultural Resources. RCO facilitates the review of applicable projects for potential impacts to archaeological sites and state cultural resources.The Sponsor must assist RCO in compliance with Governor's Executive Order 05-05 or the National Historic Preservation Act before and after initiating ground-disturbing activity or construction, repair, installation,rehabilitation, renovation,or maintenance work on lands,natural resources,or structures.The funding board requires documented compliance with Executive Order 05-05 or Section 106 of the National Historic Preservation Act,whichever is applicable to the project. If a federal agency declines to consult,the Sponsor shall comply with the requirements of Executive Order 05-05. 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. If human remains are discovered during 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 Tribe's cultural staff and cultural committee, RCO, State Department of Archaeology, the coroner and local law enforcement in the most expeditious manner possible according to RCW 68.50. E. 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 designed 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 appropriations pending before the U.S.Congress or any state legislature_ RCO 18-2602P Revision Date: 1/11/2018 Page 12 of 30 F. Debarment and Certification. By signing the Agreement with RCO, the Sponsor certifies that neither it nor its principals nor any other lower tier participant are presently debarred,suspended, proposed for debarment,declared ineligible or voluntarily excluded from participation in this transaction by Washington State Labor and Industries. Further,the Sponsor agrees not to enter into any arrangements or contracts related to this Agreement with any party that is on Washington State Department of Labor and Industries''Debarred Contractor List." SECTION 9. RECORDS A. Digital Records. If requested by RCO,the Sponsor must provide a digital file(s)of the project property and funded project site in a format specified by the RCO. B. 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 deems the project complete, as defined in Section 11: PROJECT REIMBURSEMENTS. 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. C. Access to Records and Data.At no additional cost, the records relating to the Agreement, 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. This includes access to all information that supports the costs submitted for payment under the grant and all findings, conclusions, and recommendations of the Sponsor's reports, including computer models and methodology for those models. D. Public Records.Sponsor acknowledges that the RCO is subject to RCW 42.56 and that this Agreement and any records Sponsor submits or has submitted to the State shall be a public record as defined in RCW 42.56. RCO administers public records requests per WAC 286-06 and 420-04 (which ever applies).Additionally,the Sponsor agrees to disclose any information in regards to the expenditure of that funding as if the project sponsor were subject to the requirements of chapter 42.56 RCW. By submitting any record to the State, Sponsor understands that the State may be requested to disclose or copy that record under the state public records law, currently codified at RCW 42.56.The Sponsor warrants that it possesses such legal rights as are necessary to permit the State to disclose and copy such document to respond to a request under state public records laws_The Sponsor hereby agrees to release the State from any claims arising out of allowing such review or copying pursuant to a public records act request, and to indemnify against any claims arising from allowing such review or copying and pay the reasonable cost of state's defense of such claims_ SECTION 10. PROJECT FUNDING A. Authority.This Agreement is funded through a grant award from the RCO or Funding Entity (if different than the RCO). B. Additional Amounts_The RCO or Funding Entity shall not be obligated to pay any amount beyond the dollar amount as identified in this Agreement, unless an additional amount has been approved in advance by the RCO director and incorporated by written amendment into this Agreement . RCO 18-2602P Revision Date: 1/11/2018 Page 13 of 30 C. Before the Agreement_No expenditure made, or obligation incurred, by the Sponsor before the project start date shall be eligible for grant funds, in whole or in part, unless specifically provided for by the RCO director,such as a waiver of retroactivity or program specific eligible pre-Agreement costs. For reimbursements of such costs, this Agreement must be fully executed and an original received by RCO. The dollar amounts identified in this Agreement may be reduced as necessary to exclude any such expenditure from reimbursement. D. Requirements for Federal Subawards.Pre-Agreement costs before the federal award date in Section H: FEDERAL FUND INFORMATION are ineligible unless approved by the federal award agency(2 C.F.R§200.458(2013)). E. 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 to any remedy the RCO may have under this Agreement , the grant amounts identified in this Agreement shall be reduced to exclude any such expenditure from participation. SECTION 11. PROJECT REIMBURSEMENTS A. Reimbursement Basis.This Agreement is administered on a reimbursement basis per WAC 286-13 and/or 420-12, which ever has been designated to apply. Only the primary Sponsor may request reimbursement for eligible and allowable costs incurred during the period of performance.The primary Sponsor may only request reimbursement after(1) this Agreement has been fully executed and (2)the Sponsor has remitted payment to its vendors. RCO will authorize disbursement of project funds only on a reimbursable basis at the percentage as defined in Section G: PROJECT FUNDING. Reimbursement shall not be approved for any expenditure not incurred by the Sponsor or for a donation used as part of its matching share. RCO does not reimburse for donations.All reimbursement requests must include proper documentation of expenditures as required by RCO. B. Reimbursement Request Frequency. The primary Sponsor is 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 or as identified in the milestones.Sponsors must refer to the most recent applicable RCO manuals and this Agreement regarding reimbursement requirements. C. 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 and other agreements between RCO and the Sponsor. D. Retainage Held Until Project Complete. RCO reserves the right to withhold disbursement 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 and accepted by RCO; 4. Any other required documents and media 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; 8. Fiscal transactions are complete, and RCO 18-2602P Revision Date: 1/11/2018 Page 14 of 30 9. RCO has accepted a final boundary map, if requested by RCO, for which the Agreement terms will apply in the future. 10. Notice of Grant(if applicable) filed with the county lands records office and a stamped copy received by RCO E. Requirements for Federal Subawards: Match. The Sponsor's matching share must comply with 2 C.F.R. §200.306 (2013).Any shared costs or matching funds and all contributions, including cash and third party in-kind contributions, can be accepted as part of the Sponsor's matching share when such contributions meet all of the following criteria: 1. Are verifiable from the non-Federal entity's(Sponsor's)records; 2. Are not included as contributions for any other Federal award; 3. Are necessary and reasonable for accomplishment of project or program objectives; 4. Are allowable under 2 C.F.R. Part 200, Subpart E—Cost Principles(2013); 5. Are not paid by the Federal Government under another Federal award, except where the Federal statute authorizing a program specifically provides that Federal funds made available for such program can be applied to matching or cost sharing requirements of other Federal programs; 6. Are provided for in the approved budget when required by the Federal awarding agency identified in Section H: FEDERAL FUND INFORMATION of this Agreement;and 7. Conform to other provisions of 2 C.F.R. Part 200, Subpart D—Post Federal Award Requirements (2013), as applicable. F. Requirements for Federal Subawards: Close out. Per 2 C.F.R§200.343(2013),the non-Federal entity(Sponsor) must: 1. Submit, no later than 90 calendar days after the end date of the period of performance, all financial, performance, and other reports as required by the terms and conditions of the Federal award. The Federal awarding agency or pass-through entity(RCO)may approve extensions when requested by the Sponsor. 2. Liquidate all obligations incurred under the Federal award not later than 90 calendar days after the end date of the period of performance as specified in the terms and conditions of the Federal award. 3. Refund any balances of unobligated cash that the Federal awarding agency or pass-through entity(RCO)paid in advance or paid and that are not authorized to be retained by the non-Federal entity (Sponsor)for use in other projects. See OMB Circular A-129 and see 2 C.F.R§200.345 Collection of amounts due (2013),for requirements regarding unreturned amounts that become delinquent debts. 4. Account for any real and personal property acquired with Federal funds or received from the Federal Government in accordance with 2 C.F.R§§200.310 Insurance coverage through 200.316 Property rust relationship and 200.329 Reporting on real property(2013). SECTION 12. ADVANCE PAYMENTS Advance payments of or in anticipation of goods or services are not allowed unless approved by the RCO director and are consistent with legal requirements and Manual 8: Reimbursements. SECTION 13. RECOVERY OF PAYMENTS RCO 18-2602P Revision Date: 1/11/2018 Page 15 of 30 A. Recovery for Noncompliance. 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,or meet its percentage of the project total, 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. B. Overpayment Payments.The Sponsor shall reimburse RCO for any overpayment or erroneous payments made under the Agreement. Repayment by the Sponsor of such hinds 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. C. Requirements for Federal Subawards. RCO, acting as a pass-through entity, may impose any of the remedies as authorized in 2 C.F.R§§200.207 Specific conditions and/or 200.338 Remedies for noncompliance(2013). SECTION 14. 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 15. INCOME(AND FEES)AND USE OF INCOME A. Income.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 and any applicable manuals, RCWs, and WACs. B. Use of Income.Subject to any limitations contained in applicable state or federal law and applicable rules and policies, income or fees generated at a project work site (including entrance,utility corridor permit,cattle grazing,timber harvesting,farming, etc.)during or after the reimbursement period cited in the Agreement, must be used to offset: 1. The Sponsor's matching resources; 2. The project's total cost; 3. The expense of operation, maintenance,stewardship, monitoring,and/or repair of the facility or program assisted by the grant funding; 4. The expense of operation, maintenance,stewardship, monitoring,and/or repair of other similar units in the Sponsor's system; 5. Capital expenses for similar acquisition and/or development and renovation; and/or 6. Other purposes explicitly approved by RCO C. Fees. User and/or other fees may be charged in connection with land acquired or facilities developed, maintained,renovated,or restored and shall be consistent with the: 1. Grant program laws, rules, and applicable manuals; 2. Value of any service(s)furnished; RCO 18-2602P Revision Date: 1/11/2018 Page 16 of 30 3. Value of any opportunities furnished; and 4. Prevailing range of public fees in the state for the activity involved. D. Requirements for Federal Subawards. Sponsors must also comply with 2 C.F.R.§200.307 Program income(2013). SECTION 16. PROCUREMENT REQUIREMENTS A. Procurement Requirements. If the Sponsor has, or is required to have,a procurement process that follows applicable state and/or federal law or procurement rules and principles,it must be followed, documented, and retained. If no such process exists the Sponsor must follow these minimum procedures: 1. Publish a notice to the public requesting bids/proposals for the project; 2. Specify in the notice the date for submittal of bids/proposals; 3. Specify in the notice the general procedure and criteria for selection; and 4. Sponsor must contract or hire from within its bid pool. If bids are unacceptable the process needs to be repeated until a suitable bid is selected. 5. Comply with the same legal standards regarding unlawful discrimination based upon race, gender, ethnicity, sex,or sex-orientation that are applicable to state agencies in selecting a bidder or proposer. Alternatively, Sponsor may choose a bid from a bidding cooperative if authorized to do so. This procedure creates no rights for the benefit of third parties, including any proposers,and may not be enforced or subject to review of any kind or manner by any entity other than the RCO_ Sponsors may be required to certify to the RCO that they have followed any applicable state and/or federal procedures or the above minimum procedure where state or federal procedures do not apply. B. Requirements for Federal Subawards. 1. For all Federal subawards, non-Federal entities(Sponsors)must follow 2 C.F.R§§200.318 General procurement standards through 200.326 Contract Provisions(2013). SECTION 17. TREATMENT OF EQUIPMENT AND ASSETS Equipment shall be used and managed only for the purpose of this Agreement , unless otherwise provided herein or in the applicable manuals,or approved by RCO in writing. A. Discontinued Use. Equipment obtained under this Agreement shall remain in the possession of the Sponsor for the duration of the project, or RULES of applicable grant assisted program.When the Sponsor discontinues use of the equipment for the purpose for which it was funded, RCO may require the Sponsor to deliver the equipment to RCO, or to dispose of the equipment according to RCO published policies. B. Loss or Damage.The Sponsor shall be responsible for any loss or damage to equipment. C. Requirements for Federal Subawards. Procedures for managing equipment(including replacement equipment),whether acquired in whole or in part under a Federal award or match for the award, until disposition takes place will, at a minimum, meet the following requirements(2 C.F.R§200.313 (2013)): RCO 18-2602P Revision Date: 1/11/2018 Page 17 of 30 1. Property records must be maintained that include a description of the properly,a serial number or other identification number,the source of funding for the property(including the Federal Award Identification Number),who holds title,the acquisition date, and cost of the property, percentage of Federal participation in the project costs for the Federal award under which the property was acquired,the location,use and condition of the property,and any ultimate disposition data including the date of disposal and sale price of the property_ 2. A physical inventory of the property must be taken and the results reconciled with the property records at least once every two years. 3. A control system must be developed to ensure adequate safeguards to prevent loss,damage, or theft of the property.Any loss,damage, or theft must be investigated. 4. Adequate maintenance procedures must be developed to keep the property in good condition_ 5. If the non-Federal entity is authorized or required to sell the property, proper sales procedures must be established to ensure the highest possible return. SECTION 18. 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, long-term obligations, compliance,and/or quality assurance under this Agreement. If a landowner agreement or other form of control and tenure as described in Section 23.C:Control and Tenure has been executed, it will further stipulate and define the RCO's right to inspect and access lands acquired or developed with this funding assistance. SECTION 19. STEWARDSHIP AND MONITORING Sponsor agrees to perform monitoring and stewardship functions as stated in the applicable WAGS and manuals, this Agreement,or as otherwise directed by RCO consistent with the existing laws and applicable manuals. Sponsor further agrees to utilize,where applicable and financially feasible,any monitoring protocols recommended by the RCO;provided that RCO does not represent that any monitoring it may recommend will be adequate to reasonably assure project performance or safety. It is the sole responsibility of the Sponsor to perform such additional monitoring as may be adequate for such purposes. SECTION 20. 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. 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. SECTION 21. 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 referring to,the project during the project period and in the future. B. Signs. RCO 18-2602P Revision Date: 1/11/2018 Page 18 of 30 1. During the period of performance through the period of long-term obligation,the Sponsor shall post openly visible signs or other appropriate media at entrances and other locations on the project area that acknowledge the applicable grant program's funding contribution,unless waived by the director; and 2. During the period of long-term obligation, the Sponsor shall post openly visible signs or other appropriate media at entrances and other locations to notify the public of the availability of the site for reasonable public access. 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 fund source; 2. The percentage of the total costs of the project that is financed with federal money; 3. The dollar amount of federal funds for the project; and 4. The percentage and dollar amount of the total costs of the project that is financed by nongovernmental sources. SECTION 22. PROVISIONS FOR BOATING PROJECT GRANTS If requested by RCO, or required per state or federal law or rule with respect to any project or project element that supports recreational boating, Sponsor shall manage the project or project element per federal rules to include 2 C.F.R. Part 200, and place a United States Coast Guard (or other federal agency)logo and funding program information at the project site. SECTION 23. PROVISIONS APPLYING TO DEVELOPMENT, MAINTENANCE, RENOVATION,AND RESTORATION PROJECTS The following provisions shall be in force only if the project described in this Agreement is for construction of land or facilities in a development, maintenance, renovation or restoration project: A. Operations and Maintenance. Properties, structures, and facilities developed, maintained,or operated with the assistance of money granted per this Agreement Entity and within the project area shall be built, operated, and maintained according to applicable regulations, laws, building codes, and health and public safety standards to assure a reasonably safe condition and to prevent premature deterioration. It is the Sponsor's sole responsibility to ensure the same are operated and maintained in a safe and operable condition. The RCO does not conduct safety inspections or employ or train staff for that purpose. B. Document Review and Approval. Prior to commencing construction or finalizing the design,the Sponsor agrees to submit one copy of all construction and restoration plans and specifications to RCO for review solely for compliance with the scope of work to be identified in the Agreement. RCO does not review for,and disclaims any responsibility to review for safety, suitability, engineering, compliance with code,or any matters other than the scope so identified. Although RCO staff may provide tentative guidance to a Sponsor on matters related to site accessibility by persons with a disability, it is the Sponsor's responsibility to confirm that all legal requirements for accessibility are met even if the RCO guidance would not meet such requirements. RCO 18-2602P Revision Date: 1/11/2018 Page 19 of 30 1. Change orders that impact the amount of funding or changes to the scope of the project as described to and approved by the RCO must receive prior written approval of the RCO. C. Control and Tenure.The Sponsor must provide documentation that shows appropriate tenure(such as landowner agreement,long-term lease,easement, or fee simple ownership)for the land proposed for construction.The documentation must meet current RCO requirements identified in this Agreement and any applicable manual as of the effective date of this Agreement and determines the long-term compliance period unless otherwise provided in any applicable manual, RCW, WAC,or as approved by the RCO. D. 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 this contract,the contractor agrees to comply with all federal and state nondiscrimination laws,regulations and policies." E. Use of Best Management Practices. Sponsors are encouraged to use best management practices including those developed as part of the Washington State Aquatic Habitat Guidelines (AHG) Program.AHG documents include"Integrated Streambank Protection Guidelines',2002;"Land Use Planning for Salmon, Steelhead and Trout:A land use planner's guide to salmonid habitat protection and recovery",2009","Protecting Nearshore Habitat and Functions in Puget Sound",2010;"Stream Habitat Restoration Guidelines",2012; "Water Crossing Design Guidelines",2013;and"Marine Shoreline Design Guidelines",2014.These documents, along with new and updated guidance documents,and other information are available on the AHG Web site. Sponsors are also encouraged to use best management practices developed by the Washington Invasive Species Council (WISC) described in"Reducing Accidental Introductions of Invasive Species"which is available on the WISC Web site. SECTION 24. PROVISIONS APPLYING TO ACQUISITION PROJECTS The following provisions shall be in force only if the project described in this Agreement is an acquisition project(including projects with any acquisition component): A. Evidence of Land Value.Before disbursement of funds by RCO as provided under this Agreement , the Sponsor agrees to supply documentation acceptable to RCO that the cost of the property rights acquired has been established according to all applicable manuals and RCWs or WACs_ B. Evidence of Title.The Sponsor agrees to provide documentation that shows 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 Acquired.The legal description of the real property rights purchased with funding assistance provided through this Agreement (and protected by a recorded conveyance of rights to the State of Washington)shall be delivered to RCO before final payment_ D. Conveyance of Rights to the State of Washington. When real property rights(both fee simple and lesser interests)are acquired,the Sponsor agrees to execute an appropriate document(provided or approved by RCO)conveying certain rights and responsibilities to RCO or the Funding Entity on behalf of the State of Washington or another agency of the state,or federal agency,or other organization.These documents include a Deed of Right,Assignment of Rights, Easements and/or Leases as described below.The Sponsor agrees to use document language provided by 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. RCO 18-2602P Revision Date:1/11/2018 Page 20 of 30 1. Deed of Right. The Deed of Right as described in RCO Manual#3 conveys to the people of the state of Washington the right to preserve, protect, access, and/or use the property for public purposes consistent with the funding source and project agreement. 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 as described in RCO Manual #3 document transfers certain rights to RCO and the state such as public access, access for compliance, and enforcement. Sponsors shall use this document when an easement or lease is being acquired under this Agreement . 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. E. Real Property Acquisition and Relocation Assistance. 1. Federal Acquisition Policies.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, and applicable regulations and procedures of the federal agency implementing that Act. 2. State Acquisition Policies. When state 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 Policy of the State of Washington, Chapter 8.26 RCW, and WAC 286, or WAC 420,which ever applies. 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, conservation, or salmon recovery. Sponsors agree to remove or demolish ineligible structures. Sponsor must consult with RCO regarding treatment of such structures and compliance with Section 8.D Archeological and Cultural Resources. G. Hazardous Substances. 1. Certification.The Sponsor shall inspect, investigate, and conduct an environmental audit of the proposed acquisition site for the presence of hazardous substances,as defined in RCW 70.105D.020(13), and certify: a. No hazardous substances were found on the site,or b. Any hazardous substances found have been treated and/or disposed of in compliance with applicable state and federal laws, and the site deemed°clean." 2. Responsibility. Nothing in this provision alters the Sponsor's duties and liabilities regarding hazardous substances as set forth in RCW 70.105D. RCO 18-2602P Revision Date: 1/11/2018 Page 21 of 30 3. Hold Harmless.The Sponsor will defend, protect and hold harmless the State 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 attorneys'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 the Sponsor is acquiring,except to the extent, if any, that the State, its officers and agents caused or contributed to the release .The funding boards and RCO are included within the term State, as are all other agencies, departments, boards, councils,committees, divisions, bureaus, offices, societies, or other entities of state government. H. Requirements for Federal Subawards.The non-federal entity(Sponsor)must submit reports at least annually on the status of real property in which the federal government retains an interest, unless the federal interest in the real property extends 15 years or longer. In those instances where the federal interest attached is for a period of 15 years or more, the federal awarding agency or the pass-through entity(RCO), at its option, may require the Sponsor to report at various multi-year frequencies(e.g., every two years or every three years, not to exceed a five-year reporting period;or a federal awarding agency or RCO may require annual reporting for the first three years of a federal award and thereafter require reporting every five years)(2 C.F.R§ 200.329 (2013)). SECTION 25. LONG-TERM OBLIGATIONS OF THE PROJECTS AND SPONSORS A. Long-Term Obligations. Sponsor shall comply with the terms of this Agreement. B. Perpetuity.For acquisition, development, and restoration projects, or a combination thereof, unless otherwise allowed by applicable manual, policy, program rules, or this Agreement,or approved in writing by RCO. RCO requires that the project area continue to function as intended after the period of performance in perpetuity. C. Conversion.The Sponsor shall not at any time convert any real property(including any interest therein)or facility acquired, developed, renovated, and/ or restored pursuant to this Agreement, unless provided for in applicable statutes, rules, and policies. Conversion includes,but is not limited to, putting such property to uses other than those purposes for which funds were approved or transferring such property to another entity without prior approval via a written amendment to the Agreement.All real property or facilities acquired, developed, renovated, and/or restored with funding assistance shall remain in the same ownership and in public use/access status in perpetuity unless otherwise expressly provided in the Agreement or applicable policy or unless a transfer or change in use is approved by the RCO through an amendment. Failure to comply with these obligations is a conversion. Further, if the project is subject to operation and or maintenance obligations,the failure to comply with such obligations,without cure after a reasonable period as determined by the RCO, is a conversion. Determination of whether a conversion has occurred shall be based upon the terms of this Agreement, including without limitation all WACs and manuals deemed applicable and all applicable laws. For acquisition projects that are expressly term limited in the Agreement, such as one involving a lease or a term-limited restoration, renovation or development project or easement,the restriction on conversion shall apply only for the length of the term, unless otherwise provided by this Agreement, any applicable manual or WAC, or any applicable state or federal law. When a conversion has been determined to have occurred, the Sponsor is required to remedy the conversion per this Agreement and the applicable manuals, WACs and laws, and the RCO may pursue such remedies as the above allows. SECTION 26. CONSTRUCTION,OPERATION, USE AND MAINTENANCE OF ASSISTED PROJECTS The following provisions shall be in force only if the project described in this Agreement is an acquisition, development, maintenance, renovation,or restoration project: RCO 18-2602P Revision Date: 1/11/2018 Page 22 of 30 A. Property and facility operation and maintenance. Sponsor must ensure that properties or facilities assisted with the grant funds, including undeveloped sites, are built, operated, used,and maintained: 1. According to applicable federal, state,and local laws and regulations, including public health standards and building codes; 2. In a reasonably safe condition for the project's intended use; 3. Throughout its estimated useful service life so as to prevent undue deterioration; 4. In compliance with all federal and state nondiscrimination laws, regulations and policies. B. Open to the public. Unless otherwise specifically provided for in the Agreement, and in compliance with applicable statutes, rules, and applicable WACs and manuals,facilities must be open and accessible to the general public,and must: 1. Be constructed, maintained, and operated to meet or exceed the minimum requirements of the most current guidelines or rules, 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 amended and updated_ 2. Appear attractive and inviting to the public except for brief installation,construction,or maintenance periods. 3. Be available for appropriate use by the general public at reasonable hours and times of the year,according to the type of area or facility, unless otherwise stated in RCO manuals, by a decision of the RCO director in writing. Sponsor shall notify the public of the availability for use by posting and updating that information on its website and by maintaining at entrances andlor other locations openly visible signs with such information. SECTION 27. RECORDED NOTICE OF GRANT At the request of RCO,Sponsor shall record a notice of grant on the property and shall submit to the RCO a recorded and registry stamped copy of such notice.The purpose of the notice of grant is to ensure that the present and future use of the facility is and shall remain subject to the terms and conditions described in this Agreement.The notice of grant shall be in a format specified by RCO. SECTION 28. PROVISIONS RELATED TO CORPORATE(INCLUDING NONPROFIT)SPONSORS A corporate Sponsor,including any nonprofit Sponsor, shall: A. Maintain corporate status with the state, including registering with the Washington Secretary of State's office,throughout the Sponsor's obligation to the project as identified in the Agreement. B. Notify RCO before corporate dissolution at any time during the period of performance or long-term obligations. Within 30 days of dissolution the Sponsor shall name a qualified successor that will agree in writing to assume any on-going project responsibilities, and transfer all property and assets to the successor.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. RCO will process an amendment transferring the Sponsor's obligation to the qualified successor if requirements are met. C. Maintain sites or facilities open to the public and may not limit access to members. SECTION 29. PROVISIONS FOR FEDERAL SUBAWARDS ONLY The following provisions shall be in force only if the project described in this Agreement is funded with a federal subaward as identified in Section H: FEDERAL FUND Information: RCP 18-2602P Revision Date: 1/11/2018 Page 23 of 30 A. Sub-Recipient(Sponsor)must comply with the cost principles of 2 C.F.R. Part 200 Subpart E(2013). Unless otherwise indicated,the cost principles apply to the use of funds provided under this Agreement to include match and any in-kind matching donations. The applicability of the cost principles depends on the type of organization incurring the costs. B. Binding Official. Per 2 CFR 200.415, Sponsor certifies through its actions or those of authorized staff, at the time of a request for reimbursement, the following: "To the best of my knowledge and belief that the report is true,complete, and accurate, and the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the Federal award. I am aware that any false,fictitious,or fraudulent information, or the omission of any material fact, may subject me to criminal,civil or administrative penalties for fraud,false statements,false claims or otherwise. (U.S_Code Title 18, Section 1001 and Title 31, Sections 3729-3730 and 3801-3812)." C. Equal Employment Opportunity. Except as otherwise provided under 41 C.F.R. Part 60,all contracts that meet the definition of"federally assisted construction contract"in 41 C.F.R.§60-1.3 must include the equal opportunity clause provided under 41 C.F.R. §60- 1.4(b), in accordance with Executive Order 11246, Equal Employment Opportunity(30 Fed. Reg. 12319, 12935,3 C.F.R. Part, 1964-1965 Comp., p_339), as amended by Executive Order 11375,Amending Executive Order 11246 Relating to Equal Employment Opportunity,and implementing regulations at 41 C.F.R. Part 60 (Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor). See 2 C.F.R. Part 200,Appendix II, paragraph C. 1. Federally Assisted Construction Contract.The regulation at 41 C.F.R. §60-1.3 defines a "federally assisted construction contract"as any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance,or guarantee,or undertaken pursuant to any Federal program involving such grant,contract, loan, insurance,or guarantee, or any application or modification thereof approved by the Government for a grant,contract, loan, insurance,or guarantee under which the applicant itself participates in the construction work. 2. Construction Work.The regulation at 41 C.F.R. § 60-1.3 defines"construction work"as the construction, rehabilitation, alteration, conversion,extension, demolition or repair of buildings, highways,or other changes or improvements to real property, including facilities providing utility services_The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction. D. Davis-Bacon Act,as amended (40 U.S.C. 3141-3148).When required by federal program legislation,all prime construction contracts in excess of$2,000 awarded by non-federal entities (Sponsors)must include a provision for compliance with the Davis-Bacon Act(40 U.S.C. 3141-3148) as supplemented by Department of Labor regulations (29 C.F.R. §5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute,contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week.The non-federal entity(Sponsor)must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation.The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity(Sponsor)must report all suspected or reported violations to the federal awarding agency identified in Section H: Federal Fund Information. RCO 18-2602P Revision Date: 1/11/2018 Page 24 of 30 The contracts must also include a provision for compliance with the Copeland"Anti-Kickback"Act (40 U. S. C. 3145),as supplemented by Department of Labor regulations(29 C.F.R Part 3,"Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient (Sponsor) must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work,to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity(Sponsor)must report all suspected or reported violations to the Federal awarding agency identified in Section H: Federal Fund Information. E. Contract Work Hours and Safety Standards Act(40 U.S.C.3701-3708).Where applicable, all contracts awarded by the non-federal entity(Sponsor)in excess of$100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous.These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. F. Rights to inventions Made Under a Contract or Agreement. If the Federal award meets the definition of"funding agreement" under 37 C.F.R§401.2(a)and the recipient or subrecipient (Sponsor)wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental,developmental,or research work under that"funding agreement,"the recipient or subrecipient(Sponsor)most comply with the requirements of 37 C.F.R Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,"and any implementing regulations issued by the awarding agency. G. Clean Air Act(42 U.S.C.7401-7671q.)and the Federal Water Pollution Control Act(33 U.S.C. 1251-1387),as Amended.Contracts and subgrants of amounts in excess of$150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).Violations must be reported to the Federal awarding agency identified in Section H: Federal Fund Information and the Regional Office of the Environmental Protection Agency (EPA). H. Byrd Anti-Lobbying Amendment(31 U.S.C. 1352). By signing this Agreement, the Sponsor certifies (per the certification requirements of 31 U.S.C.)that none of the funds that the Sponsor has(directly or indirectly)received or will receive for this project from the United States or any agency thereof, have been used or shall be used to engage in the lobbying of the Federal Government or in litigation against the United States. Such lobbying includes any influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress,or an employee of a Member of Congress in connection with this project. Contractors that apply or bid for an award exceeding$100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract,grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. RCO 18-2602P Revision Date: 1/11/2018 Page 25 of 30 I. Procurement of Recovered Materials.A non-federal entity(Sponsor)that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act,as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency(EPA)at 40 C.F.R part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition,where the purchase price of the item exceeds$10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. J. Required Insurance.The non-federal entity(Sponsor)must, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired or improved with federal funds as provided to property owned by the non-federal entity. Federally-owned property need not be insured unless required by the terms and conditions of the Federal award(2 C.F.R§200.310(2013)). K. Debarment and Suspension(Executive Orders 12549 and 12689).The Sponsor must not award a contract to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the Office of Management and Budget (OMB)guidelines at 2 C.F.R§ 180 that implement Executive Orders 12549 (3 C.F.R part 1986 Comp., p. 189)and 12689(3 C.F.R part 1989 Comp.,p.235), "Debarment and Suspension."SAM Exclusions contains the names of parties debarred,suspended,or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. L. Conflict of Interest. Sponsor agrees to abide by the conflict of interest policy and requirements of the federal funding agency established pursuant to 2 C.F.R 200. SECTION 30. 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 a direct and irreconcilable conflict between the terms of this Agreement and any applicable statute, rule,or policy or procedure,the conflict shall be resolved by giving precedence in the following order: 1. Federal law and binding executive orders; 2. Code of federal regulations; 3. Terms and conditions of a grant award to the state from the federal government; 4. Federal grant program policies and procedures adopted by a federal agency that are required to be applied by federal law; 5. State law(constitution, statute); 6. Washington Administrative Code as a may be applicable; 7. Applicable RCO manuals. SECTION 31. LIMITATION OF AUTHORITY Only RCO's Director or RCO's delegate by writing (delegation to be made prior to action)shall have the authority to alter,amend, modify, or waive any clause or condition of this Agreement;provided that any such alteration,amendment,modification, or waiver of any clause or condition of this Agreement is not effective or binding unless made as a written amendment to this Agreement and signed by the RCO Director or delegate. SECTION 32. WAIVER OF DEFAULT RCO 18-2602P Revision Date: 1/11/2018 Page 26 of 30 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 as an amendment to the original Agreement. SECTION 33. APPLICATION REPRESENTATIONS—MISREPRESENTATIONS OR INACCURACY OR BREACH The Funding Entity(if different from RCO)and RCO relies 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 34. SPECIFIC PERFORMANCE RCO may enforce this Agreement by the remedy of specific performance , which usually will mean completion of the project as described in this Agreement and /or enforcement of long-term obligations. However,the remedy of specific performance shall not be the sole or exclusive remedy available to RCO. No remedy available to the RCO shall be deemed exclusive. The 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, including but not limited to seeking full or partial repayment of the grant amount paid and damages. SECTION 35. TERMINATION AND SUSPENSION The 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 RCO policies, and with the representations of the Sponsor in its application for a grant as finally approved by RCO. For federal awards,notification of termination will comply with 2 C.F.R. §200.340. A. For Cause. 1. The RCO director may suspend or terminate the obligation to provide funding to the Sponsor under this Agreement: a. If the Sponsor breaches any of the Sponsor's obligations under this Agreement; b. If the Sponsor fails to make progress satisfactory to the RCO 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; or c. If the primary and secondary Sponsor(s)cannot mutually agree on the process and actions needed to implement the project; 2. Prior to termination, the RCO shall notify the Sponsor in writing of the opportunity to cure. If corrective action is not taken within 30 days or such other time period that the director approves in writing, the Agreement may be terminated. In the event of termination, the Sponsor shall be liable for damages or other relief as authorized by law and/or this Agreement. 3. RCO reserves the right to suspend all or part of the Agreement, withhold further payments, or prohibit the Sponsor from incurring additional obligations of funds during the investigation of any alleged breach and pending corrective action by the Sponsor, or a decision by the RCO to terminate the Contract. B. 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 when it is in the best interest of the state. If this Agreement is so terminated, RCO shall be liable only for payment required under the terms of this Agreement prior to the effective date of termination. A claimed termination for cause shall be deemed to be a "Termination for Convenience"if it is determined that: RCO 18-2602P Revision Date: 1/11/2018 Page 27 of 30 1. The Sponsor was not in default;or 2. Failure to perform was outside Sponsor's control, fault or negligence. C. Rights of Remedies of the RCO. 1. The rights and remedies of RCO provided in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. 2. In the event this Agreement is terminated by the director , after any portion of the grant amount has been paid to the Sponsor under this Agreement ,the director may require that any amount paid be repaid to RCO for redeposit into the account from which the funds were derived. However, any repayment shall be limited to the extent it would be inequitable and represent a manifest injustice in circumstances where the project will fulfill its fundamental purpose for substantially the entire period of performance and of long-term obligation. D. Non Availability of Funds.The obligation of the RCO to make payments is contingent on the availability of state and federal funds through legislative appropriation and state allotment. If amounts sufficient to fund the grant made under this Agreement are not appropriated 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 the Office of Financial Management 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. 1. Suspension: The obligation of the RCO to manage contract terms and make payments is contingent upon the state appropriating state and federal funding each biennium. In the event the state is unable to appropriate such funds by the first day of each new biennium RCO reserves the right to suspend the Agreement,with ten (10)days written notice, until such time funds are appropriated.Suspension will mean all work related to the contract must cease until such time funds are obligated to RCO and the RCO provides notice to continue work. SECTION 36. DISPUTE HEARING Except as may otherwise be provided in this Agreement,when a dispute arises between the Sponsor and the RCO, 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 the assigned 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 on, the persons chosen by the Sponsor and director shall be dismissed and an alternate person chosen by the Sponsor, and one by the director shall be appointed and they shall agree on a third person. This process shall be repeated until a three person panel is established. 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. RCO 18-2602P Revision Date: 1/11/2018 Page 28 of 30 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 37. 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 38. GOVERNING LAWNENUE 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 in Thurston County Superior Court if legally proper;otherwise venue shall be in a county where the project is situated, if venue there is legally proper, and if not, in a county where venue is legally proper. The Sponsor, by execution of this Agreement acknowledges the jurisdiction of the courts of the State of Washington. SECTION 39. PROVISIONS APPLICABLE ONLY IF FEDERALLY RECOGNIZED INDIAN TRIBE IS THE SPONSOR In the cases where this Agreement is between the RCO and a federally recognized Indian Tribe,the following terms and conditions apply, but only between those parties: A. Notwithstanding the above venue provision, if the State of Washington intends to initiate legal action against a federally recognized Indian tribe relating to the performance, breach,or enforcement of this Agreement, it shall so notify the Tribe. If the Tribe believes that a good faith basis exists for subject matter jurisdiction of such an action in federal court, the Tribe shall so notify the State within five days of receipt of such notice and state the basis for such jurisdiction. If the Tribe so notifies the State,the State shall bring such action in federal court, otherwise the State may sue the Tribe in the Thurston County Superior Court, or such other superior court where venue is proper, if not proper in Thurston County. Interpretation of the Agreement shall be according to applicable State law,except to the extent preempted by federal law. In the event suit is brought in federal court and the federal court determines that it lacks subject matter jurisdiction to resolve the dispute between the State and Tribal Party, then the State may bring suit in Thurston County Superior Court or such other superior court where venue is proper, if not proper in Thurston County. B. Any judicial award,determination, order, decree or other relief,whether in law or equity or otherwise, resulting from such actions under subsection A above, shall be binding and enforceable on the parties. Any money judgment or award against a Tribe, tribal officers, or employees, or the State of Washington, its agencies, or its officers and employees may exceed the amount of funding awarded under this Agreement. C. As requested by RCO, the Tribe shall provide to RCO its governing requirements and procedures for entering into Agreement with RCO and waiving its sovereign immunity. In addition,the tribe shall provide to RCO all authorizations the Tribe requires to authorize the person(s)signing the Agreement on the Tribe's behalf to bind the Tribe and waive the Tribe's sovereign immunity as provided herein. RCO 18-2602P Revision Date: 1/11/2018 Page 29 of 30 D. The Tribe hereby waives its sovereign immunity for suit in federal and state court for the limited purposes of allowing the State to bring and prosecute to completion such actions relating to the performance, breach,or enforcement of this Agreement as provided in subsection A above, and to bring actions to enforce any judgment arising from such actions. This waiver is not for the benefit of any third party and shall not be enforceable by any third party or by any assignee of the parties. In any enforcement action,the parties shall bear their own enforcement costs, including attorneys'fees. For purposes of this provision,the State includes the Funding Entity, the RCO, and any other state entity or agencies as the term "agency"is broadly understood to include, but not be limited to, departments, commissions, boards,divisions, bureaus, committees, offices, councils, societies,etc. SECTION 40. 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. RCO 18-2632P Revision Date: 1/11/2018 Page 30 of 30 Eligible Scope Activities Project Sponsor: Lewis County Public Works Project Number: 18-2602 Project Title: MF Newaukum Fish Passage_Site ID 021(94001)(15790) Project Type: Planning Program: FBRB Watershed Pathway Approval: 12/4/2018 Planning Metrics Worksite#1, Site 021(94001)(15790) Targeted salmonid ESU/DPS(A.23): Coho Salmon-Southwest Washington ESU,Steelhead-Southwest WashingtonNVashington Coast DPS Targeted species(non-ESU species): Cutthroat,Searun Cutthroat Design for Fish Passage Final design and permitting for fish passage Cultural Resources Cultural resources ELIGREIM.RPT December 11,2018 Page: 1 Milestone Report By Project Project Number: 18-2602 P Project Name: MF Newaukum Fish Passage_Site ID 021(94001)(15790) Sponsor: Lewis County Public Works X ! Milestone Target Date Comments(Description Project Start 11/20/2018 Data Gathering Started 12/312018 RFP Complete/Consultant Hired 12/31/2018 Cultural Resources Complete 02/15/2019 Preliminary Design to RCO 04/01/2019 WDFW Conditional review of design package ! Progress Report Due 06/01/2019 I Final Design to RCO 06/01/2019 WDFW Conditional review of design package Applied for Permits 08/152019 I Annual Project Billing Due 11/20/2019 I Progress Report Due 12/012019 Final Report Due 05/152020 Agreement End Date 05/15/2020 Final Billing Due 05/15/2020 X=Milestone Complete I=Critical Milestone 1MILESTO.RPT December 11,2018 Page: 1 BOCC AGENDA ITEM SUMMARY Resolution: BOCC Meeting Date: Dec 10, 2018 Suggested Wording for Agenda Item: Agenda Type: Consent Approving the Board of County Commissioners(BOCC)Chair to sign the Project Agreement between Lewis County and the Recreation and Conservation Office (RCO) for the MF Newaukum Fish Passage- Site ID 021 (94001) (15790) Contact Josh Metcalf Phone: 2697 RECEIVED Department: Public Works NOV 3 a 2018 Action Needed: Approve Resolution P R tEwis COUNTY HYING ARN Description Public Works has listed the MF Newaukum Fish Passage- Site ID 021 (94001) (15790)project on the maintenance program and it has been chosen to receive RCO funding. Approval of this resolution secures funding and authorizes the Chair of the BOCC to sign the Project Agreement between Lewis County and the RCO for the fish passage restoration project. Additional Copies Josh Metcalf,PW; Robin Saline, PW;Ann Weckback-PW Please return two(2)signed originals of the Project Agreement to Public Works.