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Approve a SRFB Grant Agreement with RCO for the Berwick Creek at Labree Fish Passage Design Project, BEFORE THE BOARD OF COUNTY COMMISSIONERS LEWIS COUNTY, WASHINGTON IN THE MATTER OF: RESOLUTION NO. 21-086 APPROVING A SRFB GRANT AGREEMENT BETWEEN RCO AND LEWIS COUNTY FOR THE BERWICK CREEK AT LABREE FISH PASSAGE DESIGN PROJECT, SRFB PROJECT NO. 20-1103P WHEREAS, Lewis County Department of Public Works has successfully obtained funding in the amount of $119,622.00 which requires a contract to be executed with RCO for the Berwick Creek at Labree Fish Passage Design Project; and WHEREAS, the County Engineer has reviewed the Agreement and recommends that the Board of County Commissioners (BOCC) authorize the execution of the agreement with RCO. NOW THEREFORE BE IT RESOLVED that the BOCC has determined the grant agreement in the amount of $119,622.00 for the Berwick Creek at Labree Fish Passage Design Project is in the best public interest and the Chair is hereby authorized to sign the same on behalf of the BOCC. DONE IN OPEN SESSION this 9th day of March, 2021. APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON Amber Smith Gary Stamper By: Amber Smith, Gary Stamper, Chair Deputy Prosecuting Attorney ATTEST: ° TY"� ' Lindsey R. Pollock, DVM �• �^,-'go OF'Sri a°� 'Lfrui se R. Pollock, DVM, Vice Chair SI�Cti �,' Y \ ‘-‘S �- '• !!'∎ Rieva Lester ':i: WASHINGTON STATE RCO Grant Agreement Recreation and Conservation Office Project Sponsor: Lewis County Public Works Project Number:20-1103P Project Title: Berwick Creek at Labree Fish Passage Design Approval Date:09/16/2020 PARTIES OF THE AGREEMENT This Recreation and Conservation Office Grant Agreement(Agreement)is entered into between the State of Washington by and through the Salmon Recovery Funding Board(SRFB or funding board)and the Recreation and Conservation Office (RCO), P.O.Box 40917,Olympia,Washington 98504-0917 and 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. The 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. Prior to and during the Period of Performance,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,as provided therein,(3) enter any amendments thereto on behalf of Sponsor(s),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 the AMENDMENTS TO AGREEMENT Section. A. During the Period of Performance, in order for a Sponsor to change its Authorized Representative/Agent as identified on the original signed Applicant Resolution/Authorization the Sponsor must provide the RCO a new Applicant Resolution/Authorization signed by its governing body or a written delegation of authority to sign in lieu of originally authorized Representative/Agency(s). Unless a new Applicant Resolution/Authorization has been provided,the RCO shall proceed on the basis that the person who is listed as the Authorized Representative in the last Resolution/Authorization that RCO has received is the person with authority to bind the Sponsor to the Agreement (including any amendments thereto)and decisions related to implementation of the Agreement. B. Amendments After the Period of Performance.RCO reserves the right to request and Sponsor has the obligation to provide,authorizations and documents that demonstrate any signatory to an amendment has the authority to legally bind the Sponsor as described in the above Sections. 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 General Fund-Federal of the State of Washington.The grant is administered by the Recreation and Conservation Office(RCO). DESCRIPTION OF PROJECT The project proposes to provide a final design to replace an existing fish passage barrier with a fish passable structure at river mile 0.61 of Berwick Creek on Labree Road at MP 0.459.Once the proposed design is constructed,and the downstream culvert barrier(Site 125 1302W05A)is removed,the proposed barrier replacement will restore unimpeded access to 1.51 linear miles of potential habitat for the Southwest Washington ESU of coho salmon and 1.19 linear miles of potential habitat for the Southwest Washington DPS of winter steelhead.According to the SWIFD(Statewide Washington Integrated Fish Distribution)GIS layers provided in the Chehalis Fish Passage Barrier Prioritization interactive mapper(March 2020)total accessible habitat above this culvert,once all upstream barriers are removed, is 11.11 linear miles for the Southwest Washington ESU of coho and 9.09 linear miles for the Southwest Washington DPS of winter steelhead.The proposed project would improve fish passage, sedimentation,and water quality as well as provide access to areas with high quality riparian cover. PERIOD OF PERFORMANCE The period of performance begins on September 16,2020(project start date)and ends on March 16,2022(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. RCO:20-1103 Revision Date:7/1/2020 Page 1 of 22 The RCO reserves the right to summarily dismiss any request to amend this Agreement if not made at least 60 days before the project end date. STANDARD TERMS AND CONDITIONS INCORPORATED The Standard Terms and Conditions of the Recreation and Conservation Office are hereby incorporated by reference as part of this Agreement. LONG-TERM OBLIGATIONS For this planning project,the sponsor's on-going obligation shall be the same as the period of performance identified in the Period of Performance section. PROJECT FUNDING The total grant award provided for this project shall not exceed$119,622.00.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 SRFB-Salmon Federal Projects 100.00% $119,622.00 Federal Total Project Cost 100.00% $119,622.00 FEDERAL FUND INFORMATION If federal funding information is included in this section,this project is funded by, matched by,and/or funded in part by the following federal award,or subaward: Federal Agency: US Dept of Commerce Catalog of Federal Domestic Assistance Number and Name: 11.438-PCSRF Federal Award Identification Number:NA20NMF4380250 Federal Fiscal Year:2020 Federal Award Date:08/04/2020 Total Federal Award:$17,945,000 Federal Award Project Description: FY2020 Washington State Sponsor's Indirect Cost Rate:0.00%of all costs for this agreement This funding is not research and development(R&D). If the Sponsor's total federal expenditures are$750,000 or more during the Sponsor's fiscal-year,the Sponsor is required to have a federal single audit conducted for that year in compliance with 2 C.F.R.Part 200,Sub Part F—Audit Requirements, Section 500(2013).The Sponsor must provide a copy of the final audit report to RCO within nine months of the end of the Sponsor's fiscal year, unless a longer period is agreed to in advance by the federal agency identified in this section. Sponsor shall comply with the federal"Omni-circular"(2 C.F.R.Part 200). RCO may suspend all reimbursements if the Sponsor fails to timely provide a single federal audit;further the RCO reserves the right to suspend any and all RCO Agreement(s)with the Sponsor if such noncompliance is not promptly cured. 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 and/or amended 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 the terms in the Agreement 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 this Agreement will be effective unless set forth in writing signed by all parties.Exception:extensions of the Period of Performance and minor scope adjustments need RCO:20-1103 Revision Date:7/1/2020 Page 2 of 22 only be signed by RCO's director or designee and consented to in writing(including email)by the Sponsor's Authorized Representative/Agent or Sponsor's designated point of contact for the implementation of the Agreement(who may be a person other than the Authorized Agent/Representative), unless otherwise provided for in an amendment.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. Unless otherwise expressly stated in an amendment,any amendment to this Agreement 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. However,any such amendment, unless expressly stated,shall not extend or reduce the long-term obligation term. 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, Exhibits,and any applicable federal program and accounting rules effective as of the date of this Agreement or as of the effective date of an amendment, unless otherwise provided in 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 unless otherwise expressly stated in the amendment. For the purpose of this Agreement,WAC Title 420,SRFB policies shall apply as terms of this Agreement. For the purpose of this Agreement,the following RCO manuals are deemed applicable and shall apply as terms of this Agreement: • Reimbursements-Manual 8 • Salmon Recovery Grants-Manual 18 SPECIAL CONDITIONS Special Condition#1:Cultural Resources-Survey Required This agreement requires compliance with Executive Order 05-05.A cultural resources survey is required to address any early ground disturbing actions(demolition,geo-tech,etc)and to aid in development of final design documents.The survey must meet the DAHP reporting guidelines. If adverse impacts are identified,the project proponent must work with RCO to determine how best to avoid, minimize or mitigate the effect.Archaeological monitoring of geo-tech could be employed to help refine areas where additional testing would be needed. AGREEMENT CONTACTS The parties will provide all written communications and notices under this Agreement to either or both the mail address and/or the email address listed below: Sponsor Project Contact RCO Contact Ann Weckback Brandon Carman Environmental Planner Natural Resources Building 2025 NE Kresky Ave PO Box 40917 Chehalis,WA 98532 Olympia,WA 98504-0917 ann.weckback @lewiscountywa.gov brandon.carman @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. Unless otherwise provided for in this Agreement,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. RCO:20-1103 Revision Date:7/1/2020 Page 3 of 22 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 Unless otherwise provided for in this Agreement,this Agreement,for project 20-1103,shall not be effective and binding until the date signed by both the sponsor and the RCO's authorized representative,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 STANDARD TERMS AND CONDITIONS OF THE RCO GRANT AGREEMENT.The signators listed below represent and warrant their authority to bind the parties to this Agreement. Lewis County Public Wor By: Date: ?j(1//�Z/ tll Name(printed): (l GUti Title: GIN,pt-- r t Bc at o t Lot/`,.I Co/v._ St i pwa JS State of Washington Recreation and Conservation Office On behalf of the Salmon Recovery Funding Board(SRFB or funding board) ram--gam Mar 11, 2021 By. Tara 0aIcs..a War 11.202110.14 PSI, Date: Kaleen Cottingham Director Recreation and Conservation Office Pre-approved as to form: By: Date: 07/01/2020 Assistant Attorney General RCO: 20-1103 Revision Date:7/1/2020 Page 4 of 22 WASHINGTON STATE RCO Grant Agreement Recreation and Conservation Office Project Sponsor: Lewis County Public Works Project Number:20-1103P Project Title: Berwick Creek at Labree Fish Passage Design Approval Date:09/16/2020 Eligible Scope Activities ELIGIBLE SCOPE ACTIVITIES Planning Metrics Worksite#1,Labree Rd MP 0.459 Targeted salmonid ESU/DPS(A.23): Coho Salmon-Southwest Washington ESU, Steelhead-Washington Coast DPS Targeted species(non-ESU species): Cutthroat,Searun Cutthroat Area Encompassed (acres)(B.O.b.1): 1.3 Miles of Stream and/or Shoreline Affected(B.0.b.2): 0.02 Design for Salmon restoration Final design and permitting Project Identified in a Plan or Watershed Assessment.(1221) Fish passage is listed as a Tier 1 concern in (B.1.b.11.a): Berwick Creek on page 158 of the Chehalis Basin Salmon Habitat Restoration and Preservation Work Plan for WRIA 22 and 23(John M Kliem and Deborah A.Holden,June 30,2011,Chehalis Basin Salmon Habitat Restoration and Preservation Work Plan for WRIA 22 and 23, Chehalis Lead Entity website, http://www.chehalisleadentity.org/documents/). This structure is listed in the Centralia and Chehalis Area Tributaries Culvert Assessment (Kelly Verd,April 2004,Centralia and Chehalis Area Tributaries Culvert Assessment,Chehalis Lead Entity website, http://www.chehalisleadentity.org/documents/) Priority in Recovery Plan(1223)(B.1.b.11.b): As mentioned above fish passage is listed as a Tier 1 priority in Berwick Creek on page 158 of the Chehalis Basin Salmon Habitat Restoration and Preservation Work Plan for WRIA 22 and 23.This culvert was not previously classified as a barrier as it was listed as a bridge.This structure was evaluated by the WDFW on June 27, 2017 and determined to be a barrier.The structure is listed as a Tier 1 (top 10 percent)barrier for replacement in the DRAFT-WDFW Chehalis Fish Passage Barrier Prioritization (Match 2020). Cultural Resources Cultural resources RCO:20-1103 Revision Date:7/1/2020 Page 5 of 22 WASHINGTON TON STATE RCO Grant Agreement __.,=ii Recreation and Conservation Office Project Sponsor: Lewis County Public Works Project Number:20-1103P Project Title: Berwick Creek at Labree Fish Passage Design Approval Date:09/16/2020 Project Milestones PROJECT MILESTONE REPORT Complete Milestone Target Date Comments/Description Project Start 09/16/2020 Data Gathering Started 02/15/2021 Annual Project Billing Due 06/30/2021 Progress Report Due 06/30/2021 Preliminary Design to RCO 07/13/2021 Cultural Resources Complete 09/01/2021 Survey required,see special condition#1. (Archaeological monitoring of geo-tech could be employed to help refine areas where additional testing would be needed) Progress Report Due 12/30/2021 Applied for Permits 12/31/2021 Special Conditions Met 02/28/2022 Only special condition for this project concerns cultural resources. Agreement End Date 03/16/2022 Final Design to RCO 03/31/2022 Progress Report Due 04/01/2022 Permits Complete 06/30/2022 Final Report Due 08/16/2022 Final Billing Due 08/16/2022 RCO:20-1103 Revision Date:7/1/2020 Page 6 of 22 WASHINGTON STATE RCO Grant Agreement Recreation and Conservation Office Project Sponsor: Lewis County Public Works Project Number:20-1103P Project Title: Berwick Creek at Labree Fish Passage Design Approval Date:09/16/2020 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 11 RESPONSIBILITY FOR PROJECT 11 INDEMNIFICATION 11 INDEPENDENT CAPACITY OF THE SPONSOR 12 CONFLICT OF INTEREST 12 COMPLIANCE WITH APPLICABLE LAW 12 ARCHAEOLOGICAL AND CULTURAL RESOURCES 13 RECORDS 14 PROJECT FUNDING 14 PROJECT REIMBURSEMENTS 14 RECOVERY OF PAYMENTS 15 COVENANT AGAINST CONTINGENT FEES 16 INCOME(AND FEES)AND USE OF INCOME 16 PROCUREMENT REQUIREMENTS 16 TREATMENT OF EQUIPMENT AND ASSETS 17 RIGHT OF INSPECTION 17 STEWARDSHIP AND MONITORING 17 ACKNOWLEDGMENT AND SIGNS 17 PROVISIONS FOR FEDERAL SUBAWARDS 18 PROVISIONS FOR SALMON RECOVERY FUNDING BOARD PROJECTS 20 ORDER OF PRECEDENCE 20 LIMITATION OF AUTHORITY 20 WAIVER OF DEFAULT 20 APPLICATION REPRESENTATIONS—MISREPRESENTATIONS OR INACCURACY OR BREACH 20 SPECIFIC PERFORMANCE 20 TERMINATION AND SUSPENSION 20 DISPUTE HEARING 21 ATTORNEYS'FEES 22 GOVERNING LAWNENUE 22 SEVERABILITY 22 END OF AGREEMENT 22 RCO:20-1103 Revision Date:7/1/2020 Page 7 of 22 STANDARD TERMS AND CONDITIONS EFFECTIVE DATE This agreement reflects Standard Terms and Conditions of the Recreation and Conservation Office as of 10/15/2020. 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,terms of the Agreement,or project agreement—The document entitled"RCO GRANT AGREEMENT" accepted by all parties to the present project and transaction,including without limitation the Standard Terms and Conditions of the RCO Grant Agreement,all exhibits,attachments,addendums,amendments,and applicable manuals,and any intergovernmental agreements,and/or other documents that are incorporated into the Agreement subject to any limitations on their effect under this Agreement. applicable manual(s), manual—A manual designated in this Agreement to apply as terms of this Agreement, subject(if applicable)to substitution of the"RCO director"for the term"board"in those manuals where the project is not approved by or funded by the referenced board,or a predecessor to the board. applicable WAC(s)—Designated chapters or provisions of the Washington Administrative Code that apply by their terms to the type of grant in question or are deemed under this Agreement to apply as terms of the Agreement, subject to substitution of the"RCO director"for the term"board"or"agency"in those cases where the RCO has contracted to or been delegated to administer the grant program in question. applicant—Any party, prior to becoming a Sponsor,who meets the qualifying standards/eligibility requirements for the grant application or request for funds in question. 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's signature.This person has the signature authority to bind the Sponsor to this Agreement,grant,and project. C.F.R.—Code of Federal Regulations completed project or project completion—The status of a project when all of the following have occurred: • The grant funded project has been inspected by the RCO and the RCO has determined that all scopes of work to implement the project have been completed satisfactorily. • A final project report is submitted to and accepted by RCO. • Any needed amendments to the Agreement have been entered by the Sponsor and RCO and have been delivered to the RCO. • A final reimbursement request has been paid by RCO. • Property rights(including RCO's as may apply)and any applicable notice of grant, have been recorded(as may apply). contractor—An entity that receives a contract from a Sponsor related to performance of work or another obligation under this Agreement. 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)). RCO:20-1103 Revision Date:7/1/2020 Page 8 of 22 funding board or board—The Washington State Recreation and Conservation Funding Board,or the Washington State Salmon Recovery Funding Board.Or both as may apply. 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. 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 obligations—Sponsor's obligations after the project end date,as specified in the Agreement and manuals and other exhibits as may apply. 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. planning project-A project that results in one or more of the following: 1)a study,a plan,assessment,project design, inventory,construction plans and specifications,and permits;or 2)a project that provides money to facilitate the work of an organization engaged in planning and coordination,or resource stewardship. 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.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—The undertaking that is funded by this Agreement either in whole or in part with funds administered by RCO. project area—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. project completion or completed project—The status of a project when all of the following have occurred: • The grant funded project has been inspected by the RCO and the RCO has determined that all scopes of work to implement the project have been completed satisfactorily. • A final project report is submitted to and accepted by RCO. • Any needed amendments to the Agreement have been entered by the Sponsor and RCO and have been delivered to the RCO. • A final reimbursement request has been paid by RCO. • Property rights(including RCO's as may apply)and any applicable notice of grant,have been recorded(as may apply). 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 federally funded projects). 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. RCO:20-1103 Revision Date:7/1/2020 Page 9 of 22 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. RCW—Revised Code of Washington 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. 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. SRFB—Salmon Recovery Funding Board 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. tribal consultation—Outreach,and consultation with one or more federally recognized tribes(or a partnership or coalition or consortium of such tribes,or a private tribal enterprise)whose rights will or may be significantly affected by the proposed project.This includes sharing with potentially-affected tribes the scope of work in the grant and potential impacts to natural areas, natural resources,and the built environment by the project. It also includes responding to any tribal request from such tribes and considering tribal recommendations for project implementation which may include not proceeding with parts of the project,altering the project concept and design,or relocating the project or not implementing the project,all of which RCO shall have the final approval of. useful service life—Period during which a built asset,equipment,or fixture is expected to be useable for the purpose it was acquired, installed,developed,and/or renovated,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(to include any RCO approved changes or amendments thereto).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. RCO:20-1103 Revision Date:7/1/2020 Page 10 of 22 ASSIGNMENT Neither this Agreement, nor any claim arising under this Agreement,shall be transferred or assigned by the Sponsor without prior written approval 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 has more than one Sponsor,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,its employees,assigns,consultants and contractors,and members of any funding board or advisory committee or other RCO grant review individual or body,have no responsibility for reviewing,approving,overseeing or supervising design, construction,or safety 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, its employees, assigns,consultants and contractors,and any funding board or advisory committee or other RCO grant review individual or body will act only to confirm at a general, lay person,and nontechnical level,solely for the purpose of project eligibility and payment and not for safety or suitability,that the project apparently is proceeding or has 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 or employees,and(b)the State,or its employees or agents the indemnity obligation shall be valid and enforceable only to the extent of the Sponsor's negligence or its agents,or employees. 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.Sponsor's waiver of immunity under this provision extends only to claims against Sponsor by Indemnitee RCO,and does not include,or extend to, any claims by Sponsor's employees directly against Sponsor. Sponsor shall ensure that any agreement relating to this project involving any contractors,subcontractors and/or vendors of any tier shall require that the contracting entity indemnify,defend,waive RCW 51 immunity,and otherwise protect the State as provided herein as if it were the Sponsor.This shall not apply to a contractor or subcontractor is solely donating its services to the project without compensation or other substantial consideration. 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. 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. RCO:20-1103 Revision Date:7/1/2020 Page 11 of 22 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 Employment Act(if applicable). 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. 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) Pursuant to RCW 39.12.040(1)(a),all contractors and subcontractors shall submit to Sponsor a statement of intent to pay prevailing wages if the need to pay prevailing wages is required by law.If a contractor or subcontractor intends to pay other than prevailing wages,it must provide the Sponsor with an affirmative statement of the contractor's or subcontractor's intent. Unless required by law,the Sponsor is not required to investigate a statement regarding prevailing wage provided by a contractor or subcontractor. D. 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. E. 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 RCO:20-1103 Revision Date:7/1/2020 Page 12 of 22 that is on Washington State Department of Labor and Industries'"Debarred Contractor List." ARCHAEOLOGICAL AND CULTURAL RESOURCES A. Project Review. RCO facilitates the review of projects for potential impacts to archaeology and cultural resources, except as those listed below.The Sponsor shall follow RCO guidance and directives to assist it with such review as may apply. 1) Projects occurring on State/Federal Lands:Archaeological and cultural resources compliance for projects occurring on State or Federal Agency owned or managed lands,will be the responsibility of the respective agency, regardless of sponsoring entity type.Prior to ground disturbing work or alteration of a potentially historic or culturally significant structure, or release of final payments on an acquisition,the Sponsor must provide RCO all documentation acknowledging and demonstrating that the applicable archaeological and cultural resources responsibilities of such state or federal landowner or manager has been conducted. B. Termination. RCO retains the right to terminate a project due to anticipated or actual impacts to archaeology and cultural resources. C. Notice To Proceed.No work shall commence in the project area until RCO has provided a notice of cultural resources completion. RCO may require on-site monitoring for impacts to archaeology and cultural resources during any demolition,construction, land clearing,restoration,or repair work,and may direct that work stop to minimize, mitigate, or avoid impacts to archaeology and cultural resource impacts or concems. Non ground disturbing projects(such as acquisition or planning project)all cultural resources requirements must be met prior to final reimbursement. D. Compliance and Indemnification.At all times,the Sponsor shall take reasonable action to avoid,minimize,or mitigate adverse effects to archaeological and historic resources in the project area,and comply with any RCO direction for such minimization and mitigation.All federal or state cultural resources requirements under Governor's Executive Order 05-05 and the National Historic Preservation Act,and the State Environmental Policy Act and the National Environmental Policy Act,and any local laws that may apply, must be completed prior to the start of any work on the project site.The Sponsor must agree to indemnify and hold harmless the State of Washington in relation to any claim related to historical or cultural artifacts discovered,disturbed,or damaged due to the project funded under this Agreement.Sponsor shall comply with RCW 27.53, RCW 27.44.055,and RCW 68.50.645,and all other applicable local, state,and federal laws protecting cultural resources and human remains. E. Costs associated with project review and evaluation of archeology and cultural resources are eligible for reimbursement under this agreement.Costs that exceed the budget grant amount shall be the responsibility of the Sponsor Inadvertent Discovery Plan.The Sponsor shall request,review,and be bound by the RCO Inadvertent Discovery Plan,and: 1) Keep the IDP at the project site. 2) Make the IDP readily available to anyone working at the project site. 3) Discuss the IDP with staff and contractors working at the project site. 4) Implement the IDP when cultural resources or human remains are found at the project site. F. Discovery 1) If any archaeological or historic resources are found while conducting work under this Agreement,the Sponsor shall immediately stop work and notify RCO,the Department of Archaeology and Historic Preservation at(360)586-3064,and any affected Tribe,and stop any activity that may cause further disturbance to the archeological or historic resources. 2) If any human remains are found while conducting work under this Agreement,Sponsor shall immediately stop work and notify the local Law Enforcement Agency or Medical Examiner/Coroner's Office,and then RCO,all in the most expeditious manner,and stop any activity that may cause disturbance to the remains. Sponsor shall secure the area of the find will and protect the remains from further disturbance until the State provides a new notice to proceed. a) Any human remains discovered shall not be touched,moved,or further disturbed unless directed by RCO or the Department of Archaeology and Historic Preservation(DAHP). b) The county medical examiner/coroner will assume jurisdiction over the human skeletal remains and make a determination of whether those remains are forensic or non-forensic. If the county medical examiner/coroner determines the remains are non-forensic,then they will report that finding to the Department of Archaeology and Historic Preservation(DAHP)who will then take jurisdiction over the remains.The DAHP will notify any appropriate cemeteries and all affected tribes of the find.The State Physical Anthropologist will make a determination of whether the remains are Indian or Non- RCO:20-1103 Revision Date:7/1/2020 Page 13 of 22 Indian and report that finding to any appropriate cemeteries and the affected tribes.The DAHP will then handle all consultation with the affected parties as to the future preservation,excavation,and disposition of the remains. 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 and Retention.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 nine 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 nine(9)year period,the records shall be retained until all litigation,claims,or audit findings involving the records have been resolved. C. In order to satisfy 15 CFR 24.42(b)&(c)and 2 CFR 200.333,for projects that contain Pacific Coast Salmon Recovery Funds or are used as match to Pacific Coast Salmon Recovery Funds the sponsor shall retain records for a period of nine years from the date RCO deems the project complete as defined in the PROJECT REIMBURSEMENTS Section. D. 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. E. 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. Requirements for Federal Subawards.Pre-Agreement costs before the federal award date in the FEDERAL FUND INFORMATION Section 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 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, whichever 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 RCO:20-1103 Revision Date:7/1/2020 Page 14 of 22 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. Conditions for Payment of Retainage.RCO reserves the right to withhold disbursement of the total amount of the grant to the Sponsor until the following has occurred: 1) RCO has accepted the project as a completed project,which acceptance shall not be unreasonably withheld. 2) On-site signs are in place(if applicable);Any other required documents and media are complete and submitted to RCO;Grant related fiscal transactions are complete,and 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)as updated and amended; 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 the FEDERAL FUND INFORMATION Section 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). 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 RCO:20-1103 Revision Date:7/1/2020 Page 15 of 22 addition to any other remedies available at law or in equity. B. Return of Overpayments.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 the Sponsor received such overpayment. Unless the overpayment is due to an error of RCO,the payment shall be due and owing on the date that the Sponsor receives the overpayment from the RCO. If the payment is due to an error of RCO, it shall be due and owing 30 days after demand by RCO for refund. 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). 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,rent,franchise fees,ecosystem services,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. Requirements for Federal Subawards. Requirements for Federal Subawards.Sponsors must also comply with 2 C.F.R.§200.307 Program income(2013)as updated and amended. 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. RCO:20-1103 Revision Date:7/1/2020 Page 16 of 22 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). 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)as updated and amended): 1) Property records must be maintained that include a description of the property,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. 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 limits access to the project area,it must include(or be amended to include)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. 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: RCO:20-1103 Revision Date:7/1/2020 Page 17 of 22 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. PROVISIONS FOR FEDERAL SUBAWARDS The following provisions shall be in force for this agreement: 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 the Federal Fund Information Section. 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. RCO:20-1103 Revision Date:7/1/2020 Page 18 of 22 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)must 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. 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. RCO:20-1103 Revision Date:7/1/2020 Page 19 of 22 PROVISIONS FOR SALMON RECOVERY FUNDING BOARD PROJECTS For habitat restoration projects funded in part or whole with federal funds administered by the SRFB the Sponsor shall not commence with clearing of riparian trees or in-water work unless either the Sponsor has complied with 50 C.F.R.§223.203 (b)(8)(2000), limit 8 or until an Endangered Species Act consultation is finalized in writing by the National Oceanic and Atmospheric Administration.Violation of this requirement may be grounds for terminating this Agreement.This section shall not be the basis for any enforcement responsibility by RCO. 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 Constitution, RCW,and WAC; F. Agreement Terms and Conditions and Applicable Manuals; G. Applicable deed restrictions,and/or governing documents. LIMITATION OF AUTHORITY Only RCO's Director or RCO's delegate authorized in 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 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 rely on the Sponsor's application in making its determinations as to eligibility for,selection for,and scope of,funding grants.Any misrepresentation,error or inaccuracy in any part of the application may be deemed a breach of this Agreement. SPECIFIC PERFORMANCE RCO may enforce this Agreement by the remedy of specific performance,which means Sponsors'completion of the project and/or its completion of long-term obligations as described in this Agreement.However,the remedy of specific performance shall not be the sole or exclusive remedy available to RCO.No remedy available to the 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 requires 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. RCO:20-1103 Revision Date:7/1/2020 Page 20 of 22 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. 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. 2) No Waiver.The failure or neglect of RCO to require strict compliance with any term of this Agreement or to pursue a remedy provided by this Agreement or by law shall not act as or be construed as a waiver of any right to fully enforce all rights and obligations set forth in this Agreement and in applicable state or federal law and regulations. 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: RCO:20-1103 Revision Date:7/1/2020 Page 21 of 22 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 majority decision of the dispute panelists, unless the remedy directed by that panel is beyond 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 the Superior Court of 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. END OF AGREEMENT This is the end of the agreement. RCO:20-1103 Revision Date:7/1/2020 Page 22 of 22 BOCC AGENDA ITEM SUMMARY { Resolution: BOCC Meeting Date: March 9, 2021 Suggested Wording for Agenda Item: Agenda Type: Deliberation Approving a SRFB Grant Agreement between RCO and Lewis County for the Berwick Creek at Labree Fish Passage Design Project, SRFB Project No. 20-1103P Contact: Tim Fife Phone: 360-740-2711 Department: PW - Public Works Description: This resolution will approve a Salmon Recovery Funding Board (SRFB) Grant Agreement No 20-1103P between Recreation and Conservation (RCO) and Lewis County for the Berwick Creek at Labree Fish Passage Design Project in the amount of $119,622.00. Approvals: Publication Requirements: Publications: User Status PA's Office Pending Additional Copies: Cover Letter To: Kim Amrine, PW; Rose Williams, PW; Tina Hemphill, PW; Ann Weckback, PW