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Agreement with RCO for the King Creek Barrier Removal Site BEFORE THE BOARD OF COUNTY COMMISSIONERS OF LEWIS COUNTY, WASHINGTON IN THE MATTER OF Approving the Board of County Commissioners (BOCC) } nn Chair to sign the Agreement between Lewis County and } Resolution No 19- d 6g the Recreation and Conservation Office (RCO) for the King } Creek Barrier Removal Site 700120 (King Road MP 5 31) ) WHEREAS, Public Works has listed fish passage restoration projects on the maintenance program, and WHEREAS, Public Works has received grant funding administered through the RCO for the King Creek Barrier Removal Site 700120 (King Road MP 5.31), RCO#19-1576, CMP 1509, in the amount of$371 678 00 and WHEREAS, the conditions of receiving the grant funding requires an Agreement signed by the BOCC Chair; and WHEREAS the Public Works County Engineer has reviewed the Agreement between Lewis County and the RCO NOW, THEREFORE BE IT RESOLVED that the BOCC has determined that proceeding with the Agreement for the King Creek Barrier Removal Site 700120 (King Road MP 5 31), RCO #19-1576, CMP 1509 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 16th day of September, 2019 APPROVED AS TO FORM. BOAT OF COUNTY COMMISSIONERS Jonathan L Meyer Prosecuting Attorney LEWIS COUNTY,/ ASHINGTON . rik,i2P (I r ---77- By Deputy Prosecut ' Attorney — obert/ Jac son Chair AIN iAL ATTEST: Gary S - pe , ice h:it C- ?i�o' �� .••••„„ a Ni, / yy Edna J Fund, Co ' ssioner Rieva Lester, Cler S'Cgt �'�y. Board of County C, irnisionprt \o . 4001 sliS 4■9 V645 21,.. • ' ®;g ?'cor ?. Page 1 of 1 .` IN Ots s S• a i:Dol;5 r e o ,-, O ' {x w , , ' h NN f O o &4 a a J ! • ^ m� � iIF* ` r , '' r• ..e. W;' 7• ° z cv A � _�4 + 'R ` ; ,-, E -5 s �� ,' , ,:� ,• r fir ° C C o tt- ,,. , ,40 ,,,p, 4--t,'Ititc iftr : ; v *it . ' . .' , 0- 1, 3 r-, . -, 4000) 34 1 I . • 11 liiii,- , O r • co f . . 'rte` rl� +� „ , r if„ o I Pr ;4 I. . 0 tiff.' 4.iits, , cerw. . . 4,,,,,, ,..,.. __,.? 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O1 c t. ,o 'f �1`r!' r n s��`r T xtt4~. m I • v WASHINGTON STATE RCO Project Agreement Recreation and Conservation Office Project Sponsor' Lewis County Public Works Project Number' 19-1576R Project Title King Creek Barrier Removal Site 700120 Approval Date 08/15/2019 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 Kresky Ave Chehalis,WA 98532 and shall be binding on the agents and all persons acting by or through the parties 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(s)/Agent(s)have full authority to legally bind the Sponsor(s)regarding all matters related to the project, including but not limited to,full authority to (1)sign a grant application 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 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 Amendments and Agreement Section 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 PROJECT REIMBURSEMENTS Section) 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) DESCRIPTION OF PROJECT Lewis County Public Works will complete preliminary and final designs and implement construction of a fish passable structure at RM 8.43 of King Creek Barrier Site ID 700120 This project will restore access to 2.3 linear miles of potential habitat for the Lower Columbia River evolutionary significant unit(ESU)of coho salmon,the Lower Columbia River distinct population segment(DPS)of winter steelhead trout,as well as searun cutthroat trout once the downstream barriers at Site 700119 Site 601793 and Site 700102 are removed A total of 2.5 linear miles of potential habitat will be accessible once the remaining upstream tributary barrier is removed PERIOD OF PERFORMANCE The period of performance begins on July 1 2019(project start date)and ends on July 1,2021 (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 STANDARD TERMS AND CONDITIONS INCORPORATED The Standard Terms and Conditions of the Agreement are hereby incorporated by reference as part of this Agreement LONG TERM OBLIGATIONS For this restoration project,the sponsor's on-going obligations shall be for a minimum of ten(10)years,or more as specific in the Landowner Agreement,after the final payment and shall survive the completion/termination of this Project Agreement unless otherwise identified in the Agreement RCO 19 1576 Revision Date 1/1/2019 Page 1 of 20 PROJECT FUNDING The total grant award provided for this project shall not exceed$371 678.00 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 Coordinated Pathway 75.00% $371,678.00 State Project Sponsor 25.00% $123,892.00 Total Project Cost 100.00% $495,570.00 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 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 email)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 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 date of this Agreement and with respect to any amendments to 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 For 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 • Long Term Obligations-Manual 7 • Reimbursements Manual 8 • 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 SPECIAL CONDITIONS Special Condition Preliminary design documents,following the Brian Abbott Fish Barrier Removal Board(BAFBRB)Manual #22,Appendix D-2 requirements, must be reviewed and approved by the WDFW habitat biologist and RCO staff prior to advancing to final design Final design documents,following the Brian Abbott Fish Barrier Removal Board(BAFBRB)Manual #22 Appendix D-3 requirements, must be reviewed and approved by the WDFW habitat biologist and RCO staff prior to RCO 19-1576 Revision Date 1/1/2019 Page 2 of 20 advancing to construction Allow 30 days for each review The RCO will only reimburse for construction expenditures following approval of final designs This agreement requires compliance with Executive Order 05-05 and/or Section 106 of the National Historic Preservation Act. No ground disturbing activities may be initiated until the sponsor has received notice from RCO that the appropriate cultural resource review process has been completed Construction started without a Notice to Proceed from RCO staff will be considered a breach of contract. 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 Protect Contact RCO Contact Ann Weckback Josh Lambert Environmental Planner Natural Resources Building 2025 NE Kresky Ave PO Box 40917 Chehalis WA 98532 Olympia WA 98504-0917 ann.weckback @lewiscountywa.gov Josh.Lambert@rco.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 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 EFFECTIVE DATE This Agreement for project 19-1576 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 the PERIOD OF PERFORMANCE Section 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 STANDA:a ER' S AND CONDITIONS OFT. E RECREATION AND CONSERVATION OFFICE AGREEMENT The signators ' ted belo represent and warrant the authority to bind the parties to this Agreement. Lewis Co ty P -• •rks /'] // ,, I � Date / / r rs Name(printed) / jr,j �Q�sjr1/e/,�pni Title %,04. -- eeer/ State of Washington Recreation and Conservation Office On behalf of the By Date Kaleen Cottingham Director Recreation and Conservation Office RCO 19-1576 Revision Date 1/1/2019 Page 3 of 20 Pre-approved as to form By Date 01/01/2019 _ Assistant Attorney General RCO 19-1576 Revision Date. 1/1/2019 Page 4 of 20 ,� WASHING TpN SfAit RCO Project Agreement Recreation and Conservation Off Project Sponsor Lewis County Public Works Project Number 19-1576R Project Title King Creek Barrier Removal Site 700120 Approval Date 08/15/2019 Eligible Scope Activities ELIGIBLE SCOPE ACTIVITIES Restoration Metrics Worksite#1 Site 700120 Targeted salmonid ESU/DPS(A.23). Coho Salmon Lower Columbia River ESU, Steelhead-Lower Columbia River DPS Targeted species(non-ESU species) Cutthroat, Searun Cutthroat Project Identified In a Plan or Watershed Assessment(C.O.c). N/A Type Of Monitoring (C.O.d 1) None Fish Passage Improvement Type Of Barrier(C.2.b.3) Culvert Miles Of Stream Made Accessible(C.2.b 1) 1 12 Culvert installed or improved(C.2.f 1) Miles of stream made accessible by culvert installation/repair(C.2.f.3) 1 12 Number of culverts(C.2.f.2) 1 Cultural Resources Cultural resources Permits Obtain permits Architectural&Engineering Architectural&Engineering(A&E) RCO 19-1576 Revision Date 1/1/2019 Page 5 of 20 ti WASH.NGTON STATE RCO Project Agreement Recreation and Conservation Off i Project Sponsor Lewis County Public Works Project Number. 19-1576R Project Title King Creek Barrier Removal Site 700120 Approval Date 08/15/2019 Project Milestones PROJECT MILESTONE REPORT Complete Milestone Target Date Comments/Description Project Start 07/01/2019 Preliminary Design to RCO 11/01/2019 Special condition WOFW technical review Progress Report Due 12/31/2019 Final Design to RCO 12/31/2019 Special condition WDFW technical review Applied for Permits 01/31/2020 Cultural Resources Complete 04/15/2020 Landowner Agreement to RCO 05/01/2020 Permits Complete 05/01/2020 Bid Awarded/Contractor Hired 06/01/2020 Progress Report Due 06/30/2020 Restoration Started 07/01/2020 Annual Project Billing Due 07/31/2020 Restoration Complete 10/31/2020 Stewardship Plan to RCO 12/31/2020 Progress Report Due 12/31/2020 Funding Acknowl Sign Posted 06/01/2021 Other 06/01/2021 As-built designs as necessary RCO Final Inspection 06/01/2021 Agreement End Date 07/01/2021 Final Billing Due 07/01/2021 No later than 90 days from Agreement End Date Final Report Due 07/01/2021 No later than 90 days from Agreement End Date RCO 19 1576 Revision Date 1/1/2019 Page 6 of 20 ti WASHINGTON STATE RCO Project Agreement AiRecreation and Conservation Off i Project Sponsor Lewis County Public Works Project Number 19-1576R Project Title King Creek Barrier Removal Site 700120 Approval Date 08/15/2019 Standard Terms and Conditions of the Recreation and Conservation Office Table of Contents STANDARD TERMS AND CONDITIONS EFFECTIVE DATE . .. . .. . .. .... 8 CITATIONS, HEADINGS AND DEFINITIONS . .. . .. . .. . . .8 PERFORMANCE BY THE SPONSOR ... ........... .. . .. .... . . . . . . ... . .. . . . . . . . . .. . ... . . ... . .. . .. . 10 ASSIGNMENT . ... . .... .. . .... .... .... .. .... .. . .. . .... ..... 10 RESPONSIBILITY FOR PROJECT . .. . . . .. .. . .... . . 10 INDEMNIFICATION 10 INDEPENDENT CAPACITY OF THE SPONSOR.... ..... .. .. ......... . 11 CONFLICT OF INTEREST. 11 COMPLIANCE WITH APPLICABLE LAW . 11 RECORDS . . .. .. . . .. .. ..... ... ....... .... . 12 PROJECT FUNDING... . . . .. . .. 13 PROJECT REIMBURSEMENTS 13 RECOVERY OF PAYMENTS . . . . .. . . . . . . . . . . . .. .. . .. . . 14 COVENANT AGAINST CONTINGENT FEES . 14 INCOME(AND FEES)AND USE OF INCOME .. ....... .. .. . . . . . . . . . .. . . .. . . .. 14 PROCUREMENT REQUIREMENTS . 14 TREATMENT OF EQUIPMENT AND ASSETS . . . . . .. . . ... .. . . . . . . . .. . . . . .. .. 15 RIGHT OF INSPECTION 15 STEWARDSHIP AND MONITORING . .... . . .. . . .... . . 15 ACKNOWLEDGMENT AND SIGNS . . 15 PROVISIONS APPLYING TO DEVELOPMENT, MAINTENANCE RENOVATION AND RESTORATION PROJECTS 16 LONG-TERM OBLIGATIONS OF THE PROJECTS AND SPONSORS 16 CONSTRUCTION, OPERATION USE AND MAINTENANCE OF ASSISTED PROJECTS .. ..... .. . . .. ... .... . . .. .. 17 ORDER OF PRECEDENCE . .... .. . . ..... .. .. . ... ...... ... . . . 17 . . .. .... .. ....... .. . . ..... ... LIMITATION OF AUTHORITY . . . .... .. .. . . . . . . 17 WAIVER OF DEFAULT .. . 17 APPLICATION REPRESENTATIONS—MISREPRESENTATIONS OR INACCURACY OR BREACH . .. ... . .. . . .. .. ... . 18 SPECIFIC PERFORMANCE 18 TERMINATION AND SUSPENSION . ... 18 DISPUTE HEARING .. .. . . .. . ... . .. . ... . .. .. . . . . . .. . . . . 19 ATTORNEYS' FEES 19 GOVERNING LAWNENUE . .. . . . . . . . 19 SEVERABILITY 19 END OF AGREEMENT .20 RCO 19-1576 Revision Date 1/1/2019 Page 7 of 20 STANDARD TERMS AND CONDITIONS EFFECTIVE DATE This agreement reflects Standard Terms and Conditions as of 08/21/2019 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 Agreement or project agreement—The document entitled"Recreation and Conservation Office Agreement" accepted by all parties to the present project and transaction, including without limitation the Standard Terms and Conditions of the Recreation and Conservation Office Agreement,all attachments addendums,and amendments and any intergovernmental agreements or other documents that are incorporated into the 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. 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 director—The chief executive officer of the Recreation and Conservation Office or that person's designee effective date—The date when the signatures of all parties to this agreement are present in the agreement 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 Entity—the entity that approves the project that is the subject to 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 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 RCO 19 1576 Revision Date 1/1/2019 Page 8 of 20 years long-term obligations—Sponsor's obligations after the project end date as specified in the Agreement and applicable regulations and policies 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 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 Office—Means the Recreation and Conservation Office or RCO 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 pre-agreement cost—A project cost incurred before the penod 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 A geographic area that delineates a grant assisted site which is subject to project agreement requirements project cost—The total allowable costs incurred under this Agreement and all required match share and voluntary committed matching share, including third-party contributions(see also 2 C.F.R §200.83(2013)for federaly funded projects) project end date—The specific date identified in the Agreement on which the penod 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 RCO—Recreation and Conservation Office—The state agency that 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/or 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 RCO• 19-1576 Revision Date 1/1/2019 Page 9 of 20 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 the Project Funding Section 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. 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 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 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 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 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 RCO. 19 1576 Revision Date 1/1/2019 Page 10 of 20 This provision shall be included in any agreement between Sponsor and any contractors subcontractor and vendor of any tier 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 funding board 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 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. 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 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 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 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 RCO 19-1576 Revision Date 1/1/2019 Page 11 of 20 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 12.40 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 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. 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 the PROJECT REIMBURSEMENTS Section 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 RCO 19-1576 Revision Date 1/1/2019 Page 12 of 20 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 PROJECT FUNDING A Authority This Agreement and funding is made available to Sponsor through 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 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 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 or Funding Entity may have under this Agreement,the grant amounts identified in this Agreement shall be reduced to exclude any such expenditure from participation 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 the PROJECT FUNDING Section 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 RCO 19-1576 Revision Date 1/1/2019 Page 13 of 20 7 Final amendments have been processed 8. Fiscal transactions are complete,and 9 RCO has accepted a final boundary map of the project area for which the Agreement terms will apply in the future RECOVERY OF PAYMENTS 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 funds under this recovery provision shall occur within 30 days of demand by RCO Interest shall accrue at the rate of twelve percent(12%)per annum from the time that payment becomes due and owing 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 INCOME(AND FEES)AND USE OF INCOME A 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 3 Value of any opportunities furnished and 4 Prevailing range of public fees in the state for the activity involved 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 RCO 19-1576 Revision Date 1/1/2019 Page 14 of 20 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 Altematively 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 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 Dtscontfnued 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. 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 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 STEWARDSHIP AND MONITORING Sponsor agrees to perform monitoring and stewardship functions as stated in the applicable WACs 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 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 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 RCO 19-1576 Revision Date 1/1/2019 Page 15 of 20 ceremonies PROVISIONS APPLYING TO DEVELOPMENT, MAINTENANCE, RENOVATION,AND RESTORATION PROJECTS The following provisions shall be in force 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. 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 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 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 uselaccess 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 RCO 19-1576 Revision Date 1/1/2019 Page 16 of 20 allows CONSTRUCTION,OPERATION,USE,AND MAINTENANCE OF ASSISTED PROJECTS The following provisions shall be in force for this agreement 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 projects 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 and/or other locations openly visible signs with such information 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* A Federal law and binding executive orders, B, Code of federal regulations, C Terms and conditions of a grant award to the state from the federal government, D Federal grant program policies and procedures adopted by a federal agency that are required to be applied by federal law, E State law(constitution,statute), F Washington Administrative Code, G Applicable RCO manuals 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 WAIVER OF DEFAULT Waiver of any default shall not be deemed to be a waiver of any subsequent default.Waiver or breach of any provision of the Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a RCO 19-1576 Revision Date 1/1/2019 Page 17 of 20 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 APPLICATION REPRESENTATIONS—MISREPRESENTATIONS OR INACCURACY OR BREACH The Funding Entity(if different from RCO)and RCO relies on the Sponsors 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 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 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 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 RCO 19-1576 Revision Date. 1/1/2019 Page 18 of 20 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 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 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 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. 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 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 19-1576 Revision Date 1/1/2019 Page 19 of 20 END OF AGREEMENT This is the end of the agreement RCO 19-1576 Revision Date 1/1/2019 Page 20 of 20 BOCC AGENDA ITEM SUMMARY Resolution BOCC Meeting Date: Sep 16, 2019 Suggested Wording for Agenda Item: Agenda Type. Consent Approving an Agreement between Lewis County and the Recreation and Conservation Office(RCO)for King Creek Barrier Removal Site 700120 (King Road MP 5 31) Contact Josh Metcalf Phone: 2762 Department: Public Works aLCEI V ED Action Needed Approve Resolution SU) U b 619 Description LEWIS uuuN i PROSECUTING A`1 TORNL;I Public Works has listed fish passage restoration projects on the maintenance program The King Creek Bamer Removal Site 700120(King Road MP 5 31)#19-1576, CMP 1509, was awarded funding in the amount of $371,678 00 for design and construction Approval of this resolution secures funding and authorizes the Chair of the BOCC to sign the Agreement between Lewis County and the RCO Additional Copies Kim Amrine- PW,Tim Fife-PW, Malcolm Bowie-PW, Ann Weckback-PW,Robin Saline, PW Please return two(2)signed originals of the Agreement to Public Works