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HomeMy WebLinkAbout5082 RESOLUTION NO. 5082 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A GRANT AGREEMENT BETWEEN THE CITY OF AUBURN AND THE STATE DEPARTMENT OF ECOLOGY WHEREAS, the Auburn City Council finds that restoration of that portion of Mill Creek located within the City will benefit the citizens of Auburn by enhancing flood control within the City and by improving fish habitat, and WHEREAS, the Auburn City Council previously adopted Resolution No. 4558 authorizing the execution of a Design Agreement between the City of Auburn and the Department of the Army for design of the Mill Creek Wetland 5K Green Duwamish Ecosystem Restoration Project on February 12, 2010; and WHEREAS, the design for construction of the Mill Creek Wetland 5K Green Duwamish Ecosystem Restoration Project has been completed under the Design Agreement; and WHEREAS, U.S. Army Corps of Engineers has received federal funding to construct the Mill Creek Wetland 5K Green Duwamish Ecosystem Restoration Project; and WHEREAS, under the Water Resources Development Act of 1986, local governments wishing to have such projects constructed within their jurisdictions must contribute a portion of the project costs; and WHEREAS, the City of Auburn has included the Mill Creek Wetland 5K Green Duwamish Ecosystem Restoration Project in its 2014-2019 Capital Facility ---------------------------- Resolution No. 5082 July 16, 2014 Page 1 of 1 Plan, subject to securing additional grant funding to assist with paying project costs; and WHEREAS, the city applied for and was awarded a Floodplain Management and Control Grant from the Department of Ecology; and WHEREAS, the Floodplain Management and Control Grant would provide $532,000.00 to the City to assist with real estate acquisition, pre-construction site preparation activities, and construction of the Mill Creek Wetland 5K Green Duwamish Ecosystem Restoration Project NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, HEREBY RESOLVES as follows: Section 1. That the Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute a Floodplain Management and Control Grant Agreement between the City of Auburn and the Department of Ecology which agreement shall be in substantial conformity with the Agreement attached hereto as Exhibit "A" and incorporated herein by this reference.. Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. ---------------------------- Resolution No. 5082 July 16, 2014 Page 2 of 2 Dated and Signed this ��S✓ day of , 2014. CIT F AUBURN --��Aca )�U�uj NANCY B C MAYOR ATTEST: Daniel . Daskam, City Clerk APPROVED AS TO FORM: e - 1 \—Daaniel B. Heid, City XttoNz ---------------------------- Resolution No. 5082 July 16, 2014 Page 3 of 3 Y DEPARTMENT OF ECOLOGY State of Washington ECOLOGY Grant Agreement No. G1400661 between the State of Washington Department of Ecology and City of Auburn Project Title: Mill Creek Restoration THIS is a binding agreement entered into by and between the state of Washington, Department of ECOLOGY, (PO Box 47600, Olympia, Washington, 98504-7600) hereinafter referred to as "ECOLOGY" and City of Auburn, hereinafter referred to as the "RECIPIENT'to carry out the activities described herein. RECIPIENT Name: City of Auburn 25 West Main Street Auburn, WA 98001 RECIPIENT Project Coordinator: Chris Andersen Environmental Services Program Community Development & Public Works Dept. Telephone Number: (253) 876-1962 E-mail address: candersen @auburnwa.gov Fiscal Contact for RECIPIENT: (same) Telephone Number: E-mail address: Payee on Warrant: City of Auburn (address as above) Project Manager for ECOLOGY: Jessica Hamill SEA Program Northwest Regional Office 3190 160th Ave SE Bellevue, WA 98008-5452 Telephone Number: (425) 649-7049 E-mail address: Jessica.Hamill()ecy.wa.gov The source of funds provided by ECOLOGY are authorized by the 2013 Washington State Legislature, §3069 of the Capital Budget. Maximum Capital Investment Funding: $532,000 Maximum Eligible Project Cost: $5,738,048 State Maximum Cost Share Rate: 80% UP TO a maximum State Share of$532,000 The start date of this agreement is May 1, 2014; the end date is June 30, 2015 Page 1 of 22 Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration Scope of Work Project Title: Mill Creek Restoration Description Background Mill Creek was historically an active floodplain surrounded by a broad wetland community. As the area developed, Mill Creek has been straightened and the land cleared; first for agricultural purposes and then urban and industrial development. In the project reach, Mill Creek has been channelized to facilitate agricultural activities that ceased by the early 1990s. Currently, invasive plant species have overrun the channel and floodplain; thereby interrupting natural riparian processes and significantly degrading habitat function within the Creek. The project reach is currently characterized by a wide, flat plain; dominated by non-native invasive reed canary grass. Reed canary grass chokes the undersized stream channel and contributes to frequent flood events. Proiect The project would restore stream and floodplain along an estimated one mile of Mill Creek. The project would create and enhance stream channel, increase floodplain connectivity and storage(approximately 17.5 acre-feet of new storage), and re- vegetate approximately 19 acres of riparian habitat. This project is a joint effort between the City of Auburn and the United States Army Corps of Engineers (USACOE). Scope of Work The design of the project has been completed and a plan set is currently under review. The funding provided by this grant agreement will be applied to the costs of pre- construction activities (invasive species removal) and property acquisition necessary to implement the project. The property to be acquired (King County Assessor's parcel numbers: 1221049037, 1221049038, 1221049039, 1221049007) is a vacant 21.12-acre site consisting of four degraded wetland parcels located between State Route-167 (SR-167) and West Valley Highway N in Auburn. The site is dominated with invasive, non-native reed canary grass, and native willow species are found along portions of Mill Creek. The existing stream channel has aggraded with sediments transported from its upper reaches on West Hill, which then settle out in the project reach as the gradient of the stream bed decreases markedly. The existing 6' x 8' culvert crossing at 15th Street NW has approximately 30 percent of its volume filled with sediment, and is a documented hydraulic conveyance restriction. Mill Creek, a salmonid-bearing stream, currently flows along the eastern portion of the property, ranging between 150-300 feet from SR-167. The property is critical to the project as it is required to facilitate the project's planned relocation of the Mill Creek stream channel 300-500 feet further to the west, away from SR-167 and the replacement of the existing 6' x 8' box culvert at 15th Street NW with a 20-foot wide, fish passable stream simulation culvert. Without the acquisition of the property, the RECIPIENT would not be able to construct the project. Location Latitude: 47.3210 Longitude -121.247 River: Mill Creek River Mile: 4.1 - 5.1 Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration Work Program The RECIPIENT shall perform the following work tasks: Task 1: Project Coordination, Management, and Administration The RECIPIENT will coordinate throughout the grant period with ECOLOGY's Floodplain Program Manager and other state agencies and Indian tribes as applicable to ensure the objectives of this funding opportunity are met. Coordination issues include but are not limited to flood plain management, permit, construction/ restoration, habitat, and public access recreation issues. Deliverables: Updates in Quarterly Progress Reports as follows: Pro port ort Re ortin Period Date.Due First Quarter Year 1 April 1 —June 30, 2014 July 30, 2014 Second Quarter Jul 1 —September 30 October 30, 2014 Third Quarter October 1- December 31 January 30, 2015 Fourth Quarter Year 2 January 1 — March 30 Aril 30, 2015 First Quarter Aril 1 —June 30, 2015 July 30, 2015 See Special Terms and Conditions for details on progress reporting. Due Date: 30 days following end of each quarter. Task Cost: $7,000 Cost to ECOLOGY: $0 RECIPIENT Cost: $7,000 Task 2: Pre-Construction-Invasive Plant Species Removal RECIPIENT will conduct invasive plant species removal throughout the project site to prepare for project construction. The project site is predominantly vegetated with invasive, non-native Reed canary grass (Phalaris arundinacea). This invasive plant species will be removed prior to project construction consistent with the guidelines and requirements of the City of Auburn municipal code. If any herbicide or pesticides will be used during invasive species removal, this shall be conducted by an herbicide/pesticide applicator licensed in the State of Washington. Prior to commencement of any invasive plant species removal activities, the RECIPIENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to ECOLOGY that all approvals and permits have been secured, and make copies available to ECOLOGY. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title Mill Creek Restoration Deliverables: • Copies of permits necessary to conduct pre-construction activities, if applicable • One set: Digital photographic documentation of the project before, during, and after pre-construction to effectively illustrate important pre- construction activities and project progress. Each image will be labeled with the date, location and features represented. Updates in progress reports due quarterly. • Updates in Quarterly Progress Reports to include a permit table depicting all necessary permits and issuing agencies required for project completion. • Copy of an executed construction agreement(Project Partnership Agreement) between the USACOE and the RECIPIENT. Due Date: Quarterly-Submitted with Quarterly Progress Reports, per the matrix in Task 1 Task Cost: $50,000 Cost to ECOLOGY: $20,000 RECIPIENT Cost: $30,000 Task 3 Property Acquisition RECIPIENT will acquire all necessary property or easements required to construct the project. All properties acquired will be used to enhance the restoration project or used in perpetuity for open space purposes only. Restrictions from future development will be placed on the deed and will be recorded on the title. See Exhibit A for the Restrictive Covenant and related documents which shall become part of this acquisition. ECOLOGY shall be in receipt of complete documentation before payment is released for the acquisition. Deliverables: (Two copies)Acquisition Report to include but not limited to: 1. A project vicinity map 2. A project detail map showing the location of properties purchased; 3. List of properties acquired with (previous owner) names/addresses 4. Right of Way plans 5. Acquisition documents for each property including: a. Title Reports 139,048 b. Appraisals c. Appraisal Reviews d. Environmental Assessments, if necessary Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration e. Clean Site Certifications, if necessary f. Closing Statements g. Offer Letters h. Recorded Deeds and Easements with title restrictions L (Digital) photographic documentation of project properties before project implementation in sufficient quantity/ quality to effectively illustrate existing features on the property. Due Date: February 2015 Task Cost: $651,048 Cost to ECOLOGY: $512,000 RECIPIENT Cost: $139,048 Task 4 Planning, Design, Construction, and Monitoring RECIPIENT will prepare final design plans for project construction. Under the terms of the Project Partnership Agreement between the RECIPIENT and USACOE, USACOE is responsible for obtaining all required regulatory permits and approvals for construction of the project. Prior to commencement of any construction, the RECIPIENT shall provide assurance to ECOLOGY that all approvals and permits have been secured, and make copies available to ECOLOGY. The USACOE will lead the contractor procurement process following federal guidelines and regulations. The USACOE will be the lead for construction oversight, with the RECIPIENT providing support as needed. As-built surveys will be prepared following completion of construction, in order to document final locations of all elements and associated topography. Key elements include: 2.1 Creating a new meandering stream channel in sections of the project reach, and enhance the existing channel in other sections. 2.2 Building earthen berms in strategic locations to provide higher ground for trees and shrubs. 2.3 Creating new side channels and connecting existing tributary channels to increase connectivity and provide fish habitat and refuge. 2.4 Clearing non-native plants, and establishing native trees, shrubs and vegetation long a 200 foot wide corridor on both sides of Mill Creek. 2.5 Installing a new streambed simulation culvert under 15th ST NW for improved fish passage and flood flows conveyance. Modifying and maintaining the existing culvert. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration RECIPIENT will prepare a monitoring plan to ensure the viability of plantings; with recommendations for corrective action if re-vegetation fails to thrive. Deliverables: . Final Design plan(s) • One hard copy of the as-built or final construction plan set • Copy of Monitoring Plan Due Date: January 2016' Task Cost: $5,030,000 Cost to ECOLOGY: $0 RECIPIENT Cost: $5,030,000 Task 5 Final Report The RECIPIENT will prepare a brief narrative final report detailing the completed project activities during the performance period of this agreement. The final report shall also include digital photos of the acquired parcels during project implementation in sufficient quantity/quality to effectively illustrate existing features on the property. Deliverables: Final Report-including digital photos of acquired parcels during project implementation Due Date: January 20162 Task Cost: Included in Task 1, Project Coordination, Management, and Administration Cost to ECOLOGY Included in Task 1, Project Coordination, Management, and Administration RECIPIENT Cost: Included in Task 1, Project Coordination, Management, and Administration 1 Note: Although no Ecology funding is requested for Task 4, Planning, Design, Construction, and Monitoring, this grant agreement will not conclude prior to receipt of all deliverables described in Tasks 1- 5. 2 Note: Although no Ecology funding is requested for Task 5, Final Report, this grant agreement will not conclude prior to receipt of all deliverables described in Tasks 1-5. Agreement No G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration Note': The RECIPIENT shall notify ECOLOGY in writing of the project's completion and arrange for final inspection of the project by ECOLOGY. Note 2: All deliverables are to be sent to ECOLOGY's Project Manager as listed on page one of this agreement. Schedule 2014 2015 Task M J J A S O N D J F M A M J 1 ❑ ❑ ® ® 2 ❑ ❑ ® ® 3 ❑ ❑ ® ® ® ® ® ® ® ❑ ❑ ❑ ❑ ❑ 4 ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ 5 ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration BUDGET Budget Conditions 1. Failure to comply with required permits constitutes a breach of contract, which may result in termination of this agreement. 2. Project Administration: For the administration of this agreement the RECIPIENT must follow the current edition of the Administrative Requirements for RECIPIENTs of ECOLOGY Grants and Loans (Yellow Book). htti)://www.ecy.wa.gov/biblio/9118.htmi. Please note that this document is being updated. In the event of inconsistency between these documents, unless otherwise provided herein, the inconsistency will be resolved by giving precedence in the following order: a) Applicable Federal and State statutes and regulations. b) Scope of Work. c) Special Terms and Conditions. d) Any terms incorporated herein by reference including the "Administrative Requirements for RECIPIENTs of ECOLOGY Grants and Loans." e) The General Terms and Conditions. 3. Invoicing: • Grants are awarded on a reimbursable basis. The RECIPIENT initially pays project costs as they incur. Invoicing to ECOLOGY is usually by quarter but not more often than once per month. Upon presentation of an invoice to the RECIPIENT, ECOLOGY's share of the project is reimbursed to the RECIPIENT. • The RECIPIENT must submit complete backup documents with each invoice including but not limited to all invoiced costs and time sheets- signed and dated by employee and supervisor. The RECIPIENT must keep these expenses in grant files according to budget task for a period of three years after project completion and make them available at any time for inspection by ECOLOGY. • Expenditures will be monitored by ECOLOGY for compliance with the budget as listed on page 8.When submitting invoices to ECOLOGY, the RECIPIENT shall highlight(or otherwise indicate)all costs on backup documentation to avoid data searches for cost verification by ECOLOGY. These costs will be listed on ECOLOGY's Voucher Support Form (C2 form)with subtotals. All payment requests must have forms A, B, C (and D if applicable for consultant services), be accompanied by a commensurate progress report, and receive ECOLOGY Project Manager approval before payment can be released. • Budget deviations are allowed between budget objects (mobilization, equipment, etc) e.g., a grantee may spend less money on one object and more on another), but in no circumstances may the RECIPIENT exceed the total project cost. If the total of all budget deviations exceeds 10 percent of the entire project cost, the ECOLOGY Project Manager may require a written budget redistribution. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration • NOTE: For payment requests, the RECIPIENT must use the ECOLOGY forms provided. Otherwise, ECOLOGY will return requests to the RECIPIENT for submittal on the correct forms. • Requests for reimbursement must be submitted at least quarterly but not more than once per month by the RECIPIENT on state invoice voucher forms. • Right to Audit: The RECIPIENT agrees that payment(s) made under this grant shall be subject to reduction for amount charged thereto which are found after audit examination not to constitute allowable costs under this grant. The RECIPIENT shall refund by check payable to ECOLOGY the amount of such reduction of payments under completed or terminated grants. • All travel costs shall not exceed State travel rates: htti)://www.ofm.wa.-gov/resources/travel.asp • Payment of invoices is contingent on receipt of viable deliverables as determined by ECOLOGY's Project Manager. 4. The source of funds provided by ECOLOGY are authorized by the 2013 Washington State Legislature, §3069 of the Capital Budget. 5. Expenditure Budget: (for RECIPIENT reporting and ECOLOGY tracking purposes): Maximum Eligible Project Cost $5,738,048 State Maximum Cost Share Rate: 80% UP TO a maximum State Share of $532,000 See matrix that follows for budget breakout. . . Agreement No. G1400001 between the Washington State Department of ECOLOGY and City nfAuburn Project Title: K8iU Creek Restoration Budget Matrix it C69t� ,Cost Subtotal o' 2 IP Acre 22 $2,274 $50,000 Acre 21.1 $30,855 $651,048 Const, t' $5-738,048 $532,000 $5,206,048 ro To i�ll:�Proje6t, $5,738;048 Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration Special Terms and Conditions AGREEMENT PROVISIONS 1. Compliance with all Laws: The RECIPIENT shall comply fully with all applicable federal, state and local laws, orders, regulations and permits. 2. Restrictions on Lobbying: The RECIPIENT of this agreement is prohibited from using funds provided by this agreement for lobbying purposes in accordance with the "Administrative Requirements for Recipients of ECOLOGY Grants and Loans", Publication No. 91-18, current edition, Part III, Section G. 3. Local Decision: This grant is made in response to a request for financial assistance from the RECIPIENT to undertake an Integrated Floodplain Restoration project. The choice of floodplain management activities addressed by this grant is a local decision made solely by the RECIPIENT. The RECIPIENT is not acting as an agent of the State. 4. Lawsuits: ECOLOGY shall not be responsible for any non-contractual damage or inverse condemnation claims resulting from the structures or works constructed, repaired, restored, maintained, or improved pursuant to this grant. 5. 6. Responsibilities of the Project Manager: The RECIPIENT's Project Manager shall be responsible for the procedural obligations under this agreement in addition to his/her duty to coordinate the project hereunder. He/She shall cooperate with all parties concerned in every way possible to promote successful completion of the services described in the Scope of Work. 7. Environmental Standards a. RECIPIENTS who collect environmental-monitoring data must provide these data to ECOLOGY using the Environmental Information Management System (EIM). To satisfy this requirement these data must be successfully loaded into EIM, see instructions on the EIM website at: http://www.ecy.wa.gov/eim. b. RECIPIENTS are required to follow ECOLOGY's data standards when Geographic Information System (GIS) data are collected and processed. More information and requirements are available at: http://www.ecy.wa.gov/services/g is/data/standards/standards.htm. RECIPIENTS shall provide copies to ECOLOGY of all final GIS data layers, imagery, related tables, raw data collection files, map products, and all metadata and project documentation. C. RECIPIENTS must prepare a Quality Assurance Project Plan (QAPP)when a project involves the collection of environmental measurement data. QAPP is to ensure the consistent application of quality assurance principles to the planning and execution of all activities involved in generating data. RECIPIENTS must follow ECOLOGY's Guidelines for Preparing Quality Assurance Project Plans for Environmental Studies, July 3004 (ECOLOGY Publication No. 04-03-030). ECOLOGY shall review and approve the Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration QAPP prior to start of work. The size, cost, and complexity of the QAPP should be in proportion to the magnitude of the sampling effort. 8. Quarterly Reporting: Quarterly Reports are contingent on the start date of the agreement. For timely preparation and review, quarterly reports shall convey essential information in a simple, concise manner through the use of bulleted summary statements, lists, and tables and include the following: a. A comparison of actual accomplishments to the objectives established for the reporting period including a description of issues on fisheries resources; b. For any work related to GIS, designate data standard utilized and associated data documentation. c. Status of project schedule d. Personnel changes e. Any difficulties encountered during the quarter. f. Environmental benefits being achieved by the project Note: A quarterly progress report is required for each quarter of this agreement. If no work was conducted in that quarter, state that and submit the report. Reporting Periods (sample) :-Pro Less Report'. _ Re portin -:Period Date.Due First Quarter Year 1 August 1 —September 30 October 30 Second Quarter October 1 — December 31 January 30 Third Quarter Year 2 January 1 —March 31 April 30 Fourth Quarter April 1 —June 30 July 30 First Quarter Jul 1 —September 30 October 30 Second Quarter October 1- December 31 January 30 Third Quarter Year 3 January 1 — March 31 April 30 Fourth Quarter April 1 —June 30 July 30 For Report Contents and ECOLOGY's form: Please visit our website at: http://www.ecy.wa.gov/programs/sea/grants/flooddamageprevention 9. Identification of Project Materials: All reports, maps, and other documents published as part of this grant agreement shall carry the name of the RECIPIENT, ECOLOGY's grant number (in the upper right hand corner), title, the specific task number of the product and date centered on the front cover or title page (or in the case of maps, the block which contains the name of the Government unit or Department). 10. Format for Publications and Brochures: Any (hard copy) publications or brochures required as a product of this agreement shall conform to minimum standards of size, 8-1/2"x 11"white, recycled paper equivalent in weight to 30 lb. bond, single spaced, printed both sides, no less than V margins. Photos, il- lustrations, and graphs must be of reproducible quality. 11. Amendments and Modifications: This Agreement may be altered, amended, or waived only by a written amendment executed by both parties. No subsequent modification(s) or amendment(s) of this Agreement will be of any force or effect Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration unless in writing and signed by authorized representatives of both parties. ECOLOGY and the RECIPIENT may change their respective staff contacts and administrative information without the concurrence of either party. 12. Minority And Women's Business (MWBE) Participation: The RECIPIENT agrees to solicit and recruit, to the maximum extent possible, certified minority- owned (MBE) and women-owned (WBE) businesses in purchases and contracts initiated after the effective date of this Agreement. In the absence of more stringent goals established by the RECIPIENT's jurisdiction, the RECIPIENT agrees to utilize ECOLOGY'S goals for minority- and women- owned business participation in all bid packages, request for proposals, and purchase orders. These goals are expressed as a percentage of the total dollars available for the purchase or contract and are as follows: Construction/Public Works 10% MBE 6%WBE Architecture/Engineering 10% MBE 6%WBE Purchased Goods 8% MBE 4%WBE Purchased Services 10% MBE 4%WBE Professional Services 10% MBE 4%WBE Meeting these goals is voluntary and no contract award or rejection shall be made based on achievement or non-achievement of the goals. Achievement of the goals is encouraged, however, and the RECIPIENT and ALL prospective bidders or persons submitting qualifications shall take the following affirmative steps in any procurement initiated after the effective date of this Agreement: a. Include qualified minority and women's businesses on solicitation lists. b. Assure that qualified minority and women's businesses are solicited whenever they are potential sources of services or supplies. c. Divide the total requirements, when economically feasible, into smaller tasks or quantities, to permit maximum participation by qualified minority and women's businesses. d. Establish delivery schedules, where work requirements permit, which will encourage participation of qualified minority and women's businesses. e. Use the services and assistance of the State Office of Minority and Women's Business Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as appropriate. By signing this Agreement, the RECIPIENT certifies that the above steps were, or will be followed. Any contractor engaged by the RECIPIENT under this agreement shall be required to follow the above five affirmative steps in the award of any subcontract(s). The RECIPIENT shall report to ECOLOGY at the time of submitting each invoice, on forms provided by ECOLOGY, payments made to qualified firms. The report will address: a. Name and state OMWBE certification number of any qualified firm receiving funds under the voucher, including any sub-and/or sub-subcontractors. b. The total dollar amount paid to qualified firms under this invoice. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration 13. Right to Audit: The RECIPIENT agrees that payment(s) made under this grant shall be subject to reduction for amount charged thereto which are found after audit examination not to constitute allowable costs under this grant. The RECIPIENT shall refund by check payable to ECOLOGY the amount of such reduction of pay- ments under completed or terminated grants. 14. Grant Closeout: The end date for this project is June 30, 3015. A grace period of 453 days for all deliverables and invoice vouchers is allowed as stipulated in the scope of work or by the State Office of Financial Management (OFM) through ECOLOGY's Fiscal Office. 15. All Writings Contained Herein: This agreement, the appended "General Terms and Conditions", and ECOLOGY's current edition of"Administrative Requirements for RECIPIENTs of ECOLOGY Grants and Loans" contain the entire understanding between the parties, and there are no other understandings or representations except those set forth or incorporated by reference herein. No subsequent modification(s) or amendments to this agreement shall be of any force or effect unless in writing, signed by authorized representatives of the RECIPIENT and ECOLOGY and made a part of this agreement. IN WITNESS WHEREOF, the parties hereby sign this Grant Agreement: State of Washington City of Auburn rtment of ECOLOGY JUL 21 2014 Gordon White Date Signatur , A t orized Official Date Program Manager Shorelands and Environmental Assistance Program Print Name of Authorized Official 1rwyd,e Approved as to form only by Title of Authorized Official The Assistant Attorney General (Note: Insert additional signature blocks(s) and/or pages if more than one signature block is required) 3 In the event the agreement ends at June 30, at the end of the State biennium, the RECIPIENT will be required to submit both payment request and all deliverables by July 18 or the date as decided by the ECOLOGY Fiscal Office. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration ATTACHMENT II: General Terms And Conditions Pertaining To Grant And Loan Agreements Of The Department Of ECOLOGY A. RECIPIENT PERFORMANCE All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and RECIPIENT's employees. The RECIPIENT shall only use contractor/consultant assistance if that has been included in the agreement's final scope of work and budget. B. SUBGRANTEE/CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement. C. THIRD PARTY BENEFICIARY The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of Washington is named as an express third-party beneficiary of such subcontracts with full rights as such. D. CONTRACTING FOR SERVICES(BIDDING) Contracts for construction, purchase of equipment and professional architectural and engineering services shall be awarded through a competitive process, if required by State law. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the DEPARTMENT. E. ASSIGNMENTS No right or claim of the RECIPIENT arising under this agreement shall be transferred or assigned by the RECIPIENT. F. COMPLIANCE WITH ALL LAWS 1. The RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders, regulations and permits. Prior to commencement of any construction, the RECIPIENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that all approvals and permits have been secured, and make copies available to the DEPARTMENT upon request. 2. Discrimination. The DEPARTMENT and the RECIPIENT agree to be bound by all Federal and State laws, regulations, and policies against discrimination. The RECIPIENT further agrees to affirmatively support the program of the Office of Minority and Women's Business Enterprises to the maximum extent possible. If the agreement is federally-funded, the RECIPIENT shall report to the DEPARTMENT the percent of grant/loan funds available to women or minority owned businesses. 3. Wages and Job Safety. The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety. 4. Industrial Insurance. The RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the DEPARTMENT shall have the right to immediately terminate this agreement for cause as provided in Section K.1, herein. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration G. KICKBACKS The RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this project to give up any part of the compensation to which he/she is otherwise entitled or, receive any fee, commission or gift in return for award of a subcontract hereunder. H. AUDITS AND INSPECTIONS 1. The RECIPIENT shall maintain complete program and financial records relating to this agreement. Such records shall clearly indicate total receipts and expenditures by fund source and task or object. All grant/loan records shall be kept in a manner which provides an audit trail for all expenditures. All records shall be kept in a common file to facilitate audits and inspections. Engineering documentation and field inspection reports of all construction work accomplished under this agreement shall be maintained by the RECIPIENT. 2 All grant/loan records shall be open for audit or inspection by the DEPARTMENT or by any duly authorized audit representative of the State of Washington for a period of at least three years after the final grant payment/loan repayment or any dispute resolution hereunder. If any such audits identify discrepancies in the financial records, the RECIPIENT shall provide clarification and/or make adjustments accordingly. 3. All work performed under this agreement and any equipment purchased, shall be made available to the DEPARTMENT and to any authorized state, federal or local representative for inspection at any time during the course of this agreement and for at least three years following grant/loan termination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A-133 (Audits of States, Local Governments & Non Profit Organizations), including the compliance Supplement to OMB Circular A-133, if the RECIPIENT expends $500,000 or more in a year in Federal funds. The $500,000 threshold for each year is a cumulative total of all federal funding from all sources. The RECIPIENT must forward a copy of the audit along with the RECIPIENT'S response and the final corrective action plan to the DEPARTMENT within ninety (90) days of the date of the audit report. I. PERFORMANCE REPORTING The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set forth in the Special Conditions. The RECIPIENT shall also report in writing to the DEPARTMENT any problems, delays or adverse conditions which will materially affect their ability to meet project objectives or time schedules. This disclosure shall be accompanied by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT to resolve the situation. Payments may be withheld if required progress reports are not submitted. Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be due within thirty (30) days following the end of the quarter being reported. J. COMPENSATION 1. Method of compensation. Payment shall normally be made on a reimbursable basis as specified in the grant agreement and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by the DEPARTMENT along with documentation of the expenses Payments shall be made for each task/phase of the project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and approved as satisfactory by the Project Manager. The payment request form and supportive documents must itemize all allowable costs by major elements as described in the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for Recipients of ECOLOGY Grants and Loans", Part IV, published by the DEPARTMENT. A copy of this document shall be furnished to the RECIPIENT. When payment requests are approved by the DEPARTMENT, payments will be made to the mutually agreed upon designee. Payment requests shall be submitted to the DEPARTMENT and directed to the Project Manager assigned to administer this agreement. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration 2 Period of Compensation. Payments shall only be made for actions of the RECIPIENT pursuant to the grant/loan agreement and performed after the effective date and prior to the expiration date of this agreement, unless those dates are specifically modified in writing as provided herein. 3. Final Request(s) for Payment. The RECIPIENT should submit final requests for compensation within forty-five (45) days after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply may result in delayed reimbursement. 4. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten percent (10%) of each reimbursement payment as security for the RECIPIENT's performance. Monies withheld by the DEPARTMENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been completed if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this agreement and, as appropriate, upon completion of an audit as specified under section J.S. herein. 5. Unauthorized Expenditures. All payments to the RECIPIENT may be subject to final audit by the DEPARTMENT and any unauthorized expenditure(s) charged to this grant/loan shall be refunded to the DEPARTMENT by the RECIPIENT. 6. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities, it shall not exceed the amount allowed under state law for state employees. 7. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work hereunder. K. TERMINATION 1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to perform any obligation required of it by this agreement, the DEPARTMENT may refuse to pay any further funds there under and/or terminate this agreement by giving written notice of termination. A written notice of termination shall be given at least five working days prior to the effective date of termination. In that event, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, and reports or other materials prepared by the RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become DEPARTMENT property and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials Despite the above, the RECIPIENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by the DEPARTMENT and/or the State of Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT may withhold payments for the purpose of setoff until such time as the exact amount of damages due the DEPARTMENT from the RECIPIENT is determined. 2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and federal funds through legislative appropriation and state allotment. When this agreement crosses over state fiscal years the obligation of the DEPARTMENT is contingent upon the appropriation of funds during the next fiscal year. The failure to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above. When this agreement crosses the RECIPIENT's fiscal year, the obligation of the RECIPIENT to continue or complete the project described herein shall be contingent upon appropriation of funds by the RECIPIENT's governing body; provided, however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of ALL funds paid to the RECIPIENT in accordance with Section O herein. 3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project funded herein within four months after the effective date of this agreement, or by any date agreed upon in writing for commencement of work, the DEPARTMENT reserves the right to terminate this agreement. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration L. WAIVER Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of any provision of this agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement unless stated as such in writing by the authorized representative of the DEPARTMENT M. PROPERTY RIGHTS 1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property, the RECIPIENT may copyright or patent the same but the DEPARTMENT retains a royalty-free, nonexclusive and irrevocable license to reproduce, publish, recover or otherwise use the material(s) or property and to authorize others to use the same for federal, state or local government purposes. Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any inventions that are developed by the RECIPIENT as provided in 35 U.S.C. 200-212. 2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of the DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3. Tangible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Recipients of ECOLOGY Grants and Loans", Part V, shall control the use and disposition of all real and personal property purchased wholly or in part with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the contrary or upon specific instructions with respect thereto in the Scope of Work 4. Personal Property Furnished by the DEPARTMENT. When the DEPARTMENT provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to final payment by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property 5. Acquisition Projects. The following provisions shall apply if the project covered by this agreement includes funds for the acquisition of land or facilities: a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of land/or facilities is fair and reasonable. b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this agreement. Such evidence may include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions establishing that the land is free from any impediment, lien, or claim which would impair the uses contemplated by this agreement. 6. Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time convert any equipment, property or facility acquired or developed pursuant to this agreement to uses other than those for which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other conversion or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction costs of such property. N. SUSTAINABLE PRODUCTS In order to sustain Washington's natural resources and ecosystems, the RECIPIENT is encouraged to implement sustainable practices where and when possible. These practices include use of clean energy, and purchase and use of sustainably produced products (e.g., recycled paper) For more information, see http://www.ecy.wa.gov/sustainability/. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration O. RECOVERY OF PAYMENTS TO RECIPIENT The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance of this agreement including the satisfactory completion of the project described in the Scope of Work. In the event the RECIPIENT fails, for any reason, to perform obligations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the RECIPIENT for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform. Interest shall accrue at the rate of twelve percent (12%) per year from the time the DEPARTMENT demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of such property. P. PROJECT APPROVAL The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project Manager or other designated official to whom the RECIPIENT shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Manager or other designated official as to the extent and character of the work to be done shall govern. The RECIPIENT shall have the right to appeal decisions as provided for below. Q. DISPUTES Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is not disposed of in writing shall be decided by the Project Manager or other designated official who shall provide a written statement of decision to the RECIPIENT. The decision of the Project Manager or other designated official shall be final and conclusive unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director of the DEPARTMENT a written appeal. In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such appeals shall be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the performance of this agreement and in accordance with the decision rendered. R. CONFLICT OF INTEREST No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the review, approval, or carrying out of this agreement, shall participate in any decision which affects his/her personal interest or the interest of any corporation, partnership or association in which he/she is, directly or indirectly interested, nor shall he/she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. S. INDEMNIFICATION 1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the Scope of Work. 2 To the extent that the Constitution and laws of the State of Washington permit, each party shall indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this agreement. I . Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration T. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington U. SEVERABILITY If any provision of this agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this agreement which can be given effect without the invalid provision, and to this end the provisions of this agreement are declared to be severable V. PRECEDENCE In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) applicable Federal and State statutes and regulations; (b) Scope of Work; (c) Special Terms and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for RECIPIENTs of ECOLOGY Grants and Loans", and (e)the General Terms and Conditions. W. FUNDING AVAILABILITY The DEPARTMENT's ability to make payments is contingent on availability of funding In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date and prior to completion or expiration date of this agreement, the DEPARTMENT, at its sole discretion, may elect to terminate the agreement, in whole or part, or to renegotiate the agreement subject to new funding limitations and conditions. The DEPARTMENT may also elect to suspend performance of the agreement until the DEPARTMENT determines the funding insufficiency is resolved. The DEPARTMENT may exercise any of these options with no notification restrictions. SS-010 Rev. 04/04 MODIFIED 12/13 Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration Exhibit A: Restrictive Covenant Template for Property Acquisition Restrictive Covenant for the City of Upon recording return to: Levee Right of Way (Project Manager) Tax Lot# (Department of) (City of) (address) (City) , WA 98 Restrictive Covenant for the City of For the Notice is hereby given that the property acquisition hereinafter referred to as the" "property and legally described below, is subject to certain use restrictions. The purpose of these restrictions is to prevent this land from future development and to ensure that the property will be used to enhance the restoration project in perpetuity while allowing public access. These restrictions are a condition of the grant funding appropriated by the Department of ECOLOGY through the 2013 Washington State Legislature under§3069 of the Capital Budget to restore the stream and floodplain and are enforceable by ECOLOGY. Uses of the property are restricted to those set forth below. These restrictions and obligations are intended to run with the land and shall be binding on the City of , its heirs, successors, and assigns: 1) Restoring the land to natural habitat conditions by removing human structures, materials, waste, etc.; 2) Enhancing the stream and floodplain to protect the City of Auburn from flooding; 3) Re-vegetation of the stream and floodplain to prevent erosion; 4) Providing vegetation management of exotic species (such as Reed Canary grass, purple loosestrife, etc.); 5) Allowing for maintenance, repair, and necessary reconstruction of the restoration project and all associated elements; 6) Allowing for pervious site access; 7) Enhancement of the stream and floodplain for fish and wildlife habitat; and 8) Providing open space and recreation. Agreement No. G1400661 between the Washington State Department of ECOLOGY and City of Auburn Project Title: Mill Creek Restoration Legal Description of Acquisition Area for the That portion of the In witness whereof, the City of has executed this document this day of 20 Signature,Authorized Official, Print Name of Authorized Official Title of Authorized Official Attest: STATE OF WASHINGTON CITY OF SS. On this day before me personally appeared , to me known to be the Mayor of the City of that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of such municipality, for the uses and purposes therein mentioned, and on oath stated that the execution of the instrument was duly authorized. In witness whereof I have hereunto set my hand and affixed my official seal this day of , 20 Notary Signature Notary name printed or typed NOTARY PUBLIC in and for the State of Washington Residing at: