HomeMy WebLinkAbout4329RESOLUTION NO. 4329
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE ACCEPTANCE
OF A GRANT FROM THE WASHINGTON STATE INTERAGENCY
COMMITTEE FOR OUTDOOR RECREATION IN THE AMOUNT
OF FIVE HUNDRED SEVENTY ONE THOUSAND EIGHT
HUNDRED AND FIFTY DOLLARS ($571,850.00) TO TAKE
STEPS TO RESTORE BOTH SALMON AND OTHER CRITICAL
HABITAT WITHIN THE MILL CREEK CORRIDOR BY INITIATING
THE DESIGN, PERMITTING AND CONSTRUCTION IN THE
DEVELOPMENT OF THE AUBURN ENVIRONMENTAL
MITIGATION BANK
WHEREAS, the Washington State Interagency Committee for Outdoor
Recreation, a committee created under chapter 79A.25.110 RCW awarded the
City of Auburn a grant in the amount of $571,850; and
WHEREAS, the City of Auburn's proposal to initiate design, permitting and
construction work associated with the development of the Auburn Environmental
Mitigation Bank and meet the guidelines associated this grant from the
Interagency Committee for Outdoor Recreation; and
WHEREAS, the Interagency Committee for Outdoor Recreation has funds
available under its Habitat Conservation Account, Urban Wildlife Habitat
Category, to be utilized within the City limits of Auburn; and
WHEREAS, the grant agreement will be executed and completed by July
31, 2011 as stipulated in the Agreement for Award of the Interagency Committee
for Outdoor Recreation Grant.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Resolution No. 4329
April 2, 2008
Page 1
Section 1. Purpose. The City hereby accepts the grant from the
Interagency Committee for Outdoor Recreation in the amount of Five Hundred
Seventy One Thousand Eight Hundred and Fifty Dollars ($571,850.00). The
Mayor and City Clerk of the City of Auburn are authorized to execute the
necessary agreements with the Interagency Committee for Outdoor Recreation
for the reimbursement of said funds.
Section 2. Contribution. The City hereby reserves this money and will
contribute an equivalent amount in match money for a total project cost of One
Million One Hundred Forty Three Thousand and Seven Hundred Dollars
($1,143,700.00).
Section 3. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out the
directives of this legislation.
Section 4. Effective Date. This resolution shall be in full force and
effect upon passage and signatures hereon.
Resolution No. 4329
April 2, 2008
Page 2
DATED AND SIGNED this day of, 2008
CI F AU
PE R . EWIS
MAYOR
ATTEST:
Dan'elle E. Daskam,
City Clerk
APPROVED AS TO FO
D iel B. H
City Attorney
Resolution No. 4329
April 2, 2008
Page 3
WWRP Project Agreement
Habitat Conservation Account
Project Sponsor: City of Auburn
Project Number: 06-1834D
Project Title: Auburn Environmental Mitigation Bank Approval Date: 6/7/2007
A. PARTIES OF THE AGREEMENT
This Project Grant Agreement (Agreement) is entered into between the Recreation and Conservation Funding Board
(RCFB), P.O. Box 40917, Olympia, Washington 985040917 and City of Auburn, 25 W Main St, Auburn, WA
98001-4998 (Sponsor) and shall be binding upon the agents and all persons acting by or through the parties.
B. PURPOSE OFAGREEKENT
This Agreement sets out the terms and conditions by which a grant is made from the Habitat Conservation Account of
the State of Washington's General Fund. The grant is administered by the RCFB to the Sponsor for the project
named above.
C. DESCRIPTION OFPROJEC
The subject Project is described on the attached Project Summary.
D. TERM OF AGREEMENT
The Project Sponsors ongoing obligation for the above project is perpetual unless otherwise identified in this
Agreement.
E. PERIOD OF PERFORMANCE
The Project reimbursement period shall begin on February 19, 2008 and end on May 1, 2011. No expenditure made
before or after this period is eligible for reimbursement unless incorporated by written amendment into this
Agreement.
F. PROJECT FUNDING
The total grant award provided by the RCFB for this project shall not exceed $571,850.00. The RCFB shall not pay
any amount beyond that approved for funding of the project. The Sponsor shall be responsible for all total project
costs that exceed this amount. The contribution by the Sponsor toward work on this project at a minimum shall be as
indicated below:
Percentage DollarAmount
RCFB - WWRP - Urban Wildlife
Project Sponsor
Total Project Cost
50.00% $571,850.00
50.00%0 $571,850.00
100.003/6 $1,143,700.00
G. RIGHTS AND OBLIGATIONS
All rights and obligations of the parties to this Agreement are subject to this Agreement and its attachments, including
the Sponsor's Application, Project Summary, Eligible Reimbursement Activities Report, Project Milestones, and the
General Provisions, all of which are attached hereto and incorporated herein.
Except as provided herein, no alteration of any of the terms or conditions of this Agreement will be effective unless
provided in writing. All such alterations, except those concerning the period of performance, must be signed by both
parties. Period of performance extensions need only be signed by RCO's Director.
The Sponsor has read, fully understands and agrees to be bound by all terms and conditions as set forth in these
documents.
H. COMPLIANCE WITH APPLICABLE STATUTES. RULE& AND RCO POLICIES
This Agreement is governed by, and the Sponsor shall comply with, all applicable state and federal laws and
regulations, including Chapter 79A.15 RCW, Chapter 286 WAC and published agency policies, which are
incorporated herein by this reference as if fully set forth.
W W RP Project Agreement
Chapter 79A. 15 RCW, Chapter 286 WAC
PROJAGR.RPT
Habitat Conservation Account
Page 1 of 2
ADDITIONAL PROVISIONS OR MODIFICATIONS OF THE GENERAL PROVISIONS
1. On July 1, 2007, the name of the Interagency Committee for Outdoor Recreation changed to the
Recreation and Conservation Funding Board and the office name changed to the Recreation and
Conservation Office. The General Provisions of the Project Agreement do not reflect this change. To
allow immediate implementation of this project, the existing provisions are hereby incorporated into the
agreement. All references to the Board refer to the Recreation and Conservation Funding Board.
References to the Office refer the Recreation and Conservation Office.
2. Before reimbursement of any property or development or restoration related expenses, the sponsor
must comply with Governor's Executive Order 05-05 regarding Archeological and Cultural Resources
for the scope of work approved in this Project Agreement. The Recreation and Conservation Office will
issue a notice to proceed when appropriate documentation has been received.
In the event that archaeological or historic materials are discovered during project activities, work in the
immediate vicinity must stop; the area must be secured, and the Sponsor must notify the concerned
tribe's cultural staff and cultural committee, the Recreation and Conservation Office, and Department of
Archaeology and Historic Preservation.
3. Should a conversion occur on the property acquired, the project sponsor must value the converted
property as it existed at the time of acquisition and disregard the value of any conservation easements
associated with the mitigation bank.
J. FEDERAL FUND INFORMATION
(none)
K. PROJECT GRANT AGREEMENT REPRESENTATIVE
All written communications sent to the Sponsor under this Agreement will be addressed and delivered to:
Project Contact
L.
Name: Aaron C Nix Recreation and Conservation Office
Title: Environmental Protection Manag Natural Resources Building
Address: 25 W Main St PO Box 40917
Auburn, WA 98001-4998 Olympia, Washington 98504-0917
www.rco.wa.gov/rcfb/
These addresses shall be effective until receipt by one party from the other of a written notice of any change.
This agreement, along with all attachments, constitutes the entire agreement of the parties. No other understandings,
oral or otherwise, regarding this Agreement shall exist or bind any of the parties.
M. EFFECTIVE DATE
This agreement, for project #06-1834D, shall be effective upon signing by all parties.
STATE OF WASHINGTON
RECREATION AND CONSERVATION OFFICE
BY:
Kaleen
PROJECT SPONSOit . \ -
TITLE: 1-?4 Y 0x4_
Pre-approved as to form:
BY: /S/
Assistant Attorney General
DATE: ?.q . ag
APR - 7 2008
yjl`?
W W RP Project Agreement
Chapter 79A.1 5 RCW, Chapter 286 WAC
PROJAGR.RPT
Habitat Conservation Account
Page 2 of 2
07 '?mmyft. Washington Wildlife and Recreation Program
--? OUTDOOR Urban Wildlife Habitat Category
Post-Evaluation Project Summary
TITLE: Auburn Environmental Mitigation Bank NUMBER: 06-1834D (Development)
STATUS: Board Funded
SPONSOR: City of Auburn EVALUATION SCORE: 28.6667
BOARD RANKING: 10 of 12
COSTS: SPONSOR MATCH:
WWRP - Urban Wildlife $571,850 50% Appropriation 1 Cash
Local $571,850 50%
Total $1,143,700 100%
DESCRIPTION:
The Auburn Environmental Park (AEP) is an innovative project that seeks to create open space in an urbanized
area while providing improved wetland habitat and other benefits. The project will include restoration of
approximately 80 acres of existing low-quality wetlands. The restoration will enhance fish and wildlife habitat,
improve water quality in Mill Creek, provide improved storm water detention and flood control, provide visual
improvements along SR 167, provide increased economic development opportunities, and provide passive public
recreation and education opportunities. The AEP mitigation objective is to obtain the maximum allowable wetland
mitigation credits for use in a wetland mitigation bank managed by the City of Auburn. The City anticipates utilizing
approximately 60 acres for a mitigation bank. The AEP trail will provide a much-needed respite for Interurban Trail
users and park visitors. The developed trail will consist of approximately 2 miles of bicycle/pedestrian trail through
the AEP wetland system directly connecting the Interurban Trail and park amenities, such as planned informational
kiosks, covered areas and restroom facilities.
LOCATION INFORMATION:
Within the City of Auburn between downtown and SR 167.
COUNTY: King
SCOPE (ELEMENTS):
Architectural & Engineering Permits Trails
Cultural Resources Sales Tax
Landscaping Site Preparation
ANTICIPATED ACREAGE
ACREAGE TYPE
Acres To
Be Acquired
Acres To
Be Dev/Restored
1.00
60.00
Acres To
Be Renovated
Uplands
Wetlands
FISCAL YEAR: 2008
DATE PRINTED: February 15, 2008
1PAPSUMI.RPT Auburn. Environmental Mitigation Bank
,Com?ittrye for
r? HE BERT ION
Project Sponsor:
Project Title:
Eligible Reimbursement Activities Report
City of Auburn
Auburn Environmental Mitigation Bank
Project Number: 06-1834 D
Approval: 617/2007
Worksite Element Item Unit Quantity Description
#1, Auburn Mitigation Site Architectural & Engineering A & E development Lump Sum 1.00
#1, Auburn Mitigation Site Cultural Resources Cultural resource survey Optional 1.00 Pending cultural
resources reviewed
#1, Auburn Mitigation Site Landscaping Grass - hydro seed Acres 20.00
#1, Auburn Mitigation Site Landscaping Habitat enhancement Lump sum 1.00 Habitat Structures
including snags, LWD
#1, Auburn Mitigation Site Landscaping Trees/shrubs Lump sum 1.00
#1, Auburn Mitigation Site Permits Permits Lump sum 1.00 Including Hydraulic
Study
#1, Auburn Mitigation Site Sales Tax Sales Tax Lump Sum 1.00
#1, Auburn Mitigation Site Site Preparation Clearing Acres 20.00
#1, Auburn Mitigation Site Site Preparation Cut Cubic Yds 21,000.00
#1, Auburn Mitigation Site Site Preparation Erosion control Lump sum 1.00 Erosion Control including
any dewatering
#1, Auburn Mitigation Site Site Preparation Top soil Cubic Yds 1,000.00
#1, Auburn Mitigation Site Trails Board walk - wood Linear Ft 7,920.00 Elevated Boardwalk to
have the least impact on
the wetlands
ELIGREIM.RPT February 15, 2008 Page
,Comm n for
% Fit]
R CRERTION
Project Number:
Project Name:
Sponsor:
Project Manager:
Milestone Report By Project
06-1834 D
Auburn Environmental Mitigation Bank
Auburn City of
Leslie Ryan-Connelly
x Milestone
Project Start Target Date
02/19/2008 Comments/Description
I RFP Complete/Consultant Hired 03/01/2008
I Special Conditions Met 06/30/2008 Submit quarterly narrative and financial
progress reports regarding progress of
the project and the establishment of
the mitigation bank.
Annual Project Billing 07/31/2008
Annual Project Billing 07/31/2009
A&E Complete/Permits Submitted 01/01/2010
Plans/Specs Reviewed Mgmt Agy 01/01/2010 Submit draft restoration plans to RCO
for review.
I Special Conditions Met 05/0112010 Ensure compliance with EO 05-05
before construction begins.
Bid Awarded 06/01/2010
I Construction Started 06/01/2010
Annual Project Billing 07/31/2010
I Special Conditions Met 12/31/2010 Plan approved by RCO for the
utilization of mitigation banking
revenue.
Proposed Completion Date 05/01/2011
I Project Complete 05101/2011
Final Docs/Billing to Mgmt Agy 07131/2011
X = Milestone Complete
I = Critical Milestone
1MILESTO.RPT February 15, 2008 Page:
RECREATION AND CONSERVATION OFFICE
Agency Name
Recreation and Conservation Office
P.O. Box 40917
Olympia, WA 985040917
Sponsor
City of Auburn
25 W Main St
Auburn, WA 98001-4998
FORMA-19 State of Washington
INVOICE VOUCHER
Sponsors Certificate. I hereby certify under penalty of perjury that the items
and totals listed herein are proper charges for materials, merchandise or
services furnished to the State of Washington, and that all goods furnished
and/or services rendered have been provided without discrimination because
of age, sex, madtal status, race, creed, color, national origin, handicap,
religion or Vietnam em or disabled veterans status.
BY
(TITLE) (DATE)
1.INVOICE.RPT 2/1512008 Current Funding
Press Release Template
City of Auburn offered grant to rstore habitat and develop low impact public
access to unique native ecosystems or plant and animal communities.
(Auburn) - City of Auburn was awarded a grant of $571,850.00 from the Washington Wildlife and
Recreation Program, Habitat Conservation Account, Urban Wildlife Habitat category. The grant was
awarded by the Recreation and Conservation Funding Board (RCFB), and will be used for the following:
The Auburn Environmental Park is an innovative project that seeks to combine the need
for wetland mitigation in an urban area with open space. Auburn will use this grant to
restore about 60 acres of low-quality wetlands to improve wildlife habitat and water quality
in Mill Creek, improve storm water detention and flood control, improve the views along
State Route 167, increase economic development opportunities and provide a 2-mile trail
for bicyclists and pedestrians. Project partners include the Auburn School District,
Chamber of Commerce, Auburn Downtown Association, Rainier Audubon Society,
Seattle-King County Association of Realtors, Green River Community College, Syntrix
Biosystems, and Puget Sound Energy. Auburn will contribute $571,850.
There were eight applications submitted for consideration in the Washington Wildlife and Recreation
Program, Habitat Conservation Account, Urban Wildlife Habitat category. Each project went through an
evaluation process prior to being recommended for funding. The RCFB Board approved funding for
projects on Thursday, June 7, 2007.
Funding for the Washington Wildlife and Recreation Program, Habitat Conservation Account, Urban
Wildlife Habitat category comes from the sale of state general obligation bonds. City of Auburn will
leverage local contributions totaling $571,850.00 with grant monies to implement the project. Total
estimated project cost is $1,143,700.00. RCFB is the state's administrator of the grant program.
Contact: Aaron C Nix, (253) 288-7432 (sponsor project manager)
Leslie Ryan-Connelly, (360) 902-3080, leslier@rco.wa.gov (RCFB project manager)
s
General Provisions
Table of Contents Page
A. Heading and Definitions
Section 1. Headings and Definitions .......................................................................................1
B. Performance and Requirements (General Responsibilities)
Section 2. Performance by Sponsor .......................................................................... ............. 2
Section 3. Assignment ............................................................................................... ............. 2
Section 4. Responsibility for Project .......................................................................... ............. 2
Section 5. Indemnification .......................................................................................... .............2
Section 6. Independent Capacity of the Sponsor ...................................................... ............. 2
Section 7. Conflict of Interest ............................................................ :........................ ............. 2
Section B. Acknowledgment and Signs ...................................................................... ............. 3
C. Compliance with Laws, Records, and Inspections
Section 9. Compliance with Applicable Law .............................................................. ............ 3
Section 10. Records Maintenance ................................................................................ ............4
Section 11. Access to Data ........................................................................................... ............4
Section 12. Treatment of Assets ................................................................................... ............ 4
Section 13. Right of Inspection ..................................................................................... ............ 4
Section 14. Stewardship and Monitoring ...................................................................... ............5
Section 15. Debarment Certification ............................................................................. ............ 5
D. Funding, Reimbursements
Section 16. Project Funding .......................................................................................... ............5
Section 17. Project Reimbursements ............................................................................ ............ 5
Section 18. Advance Payments .................................................................................... ............ 5
Section 19. Non-availability of Funds ............................................................................ ............6
Section 20. Recovery of Payments ............................................................................... ............ 6
Section 21. Covenant Against Contingent Fees ........................................................... ............ 6
E. Acquisition and/or Development/Restoration
- Section 22. Provisions Applying to Development/Restoration Projects ........................ ............ 6
Section 23. Provisions Applying to Acquisition Projects ............................................... ............ 7
Section 24. Hazardous Substances .............................................................................. ............ 7
F. Facility Uses and Fees
Section 25. Restriction on Conversion of Facility to Other Uses .................................. ............ 8
Section 26. Construction, Operation, Use and Maintenance of Assisted Projects ....... ............9
Section 27. Income and Income Use ............................................................................ ............9
Section 28. Preferences for Residents ......................................................................... ............ 9
G. Special Provisions
Section 29. Provisions Related to Non-Profit or Not-For-Profit Sponsors .................... ..........10
Section 30. Liability Insurance Requirements for Firearm Range Sponsors ................ ..........10
Section 31. Requirements of the National Park Service ............................................... ..........10
H. Remedies and Disputes
Section 32. Order of Precedence ......................................................................................... ... 11
Section 33. Amendments ..................................................................................................... ...11
Section 34. Limitation of Authority ....................................................................................... ...11
Section 35. Waiver of Default ............................................................................................... ...11
Section 36. Application Representations--Misrepresentations or Inaccuracy or Breach ... ...11
Section 37. Termination and Other Remedies .................................................................... ...11
Section 38. Termination for Convenience .............................................. :............................. ... 12
Section 39. Dispute Hearing ................................................................................................ ... 12
Section 40. Attorneys' Fees ................................................................................................. ...12
Section 41. Governing LawNenue ...................................................................................... ...13
Section 42. Severability ........................................................................................................ ...13
April 15, 2002 - Page 1
General Provisions
SECTION 1. HEADINGS AND DEFINITIONS
A. Headings used in this Agreement are for reference purposes only and shall not be considered a
substantive part of this Agreement.
B. Definitions. As used throughout this Agreement, the following terms shall have the meaning set
forth below:
Acquisition - The gaining of rights of public ownership by purchase, negotiation, or other means, of
fee or less than fee interests in real property.
Agreement - The accord accepted by all parties to the present transaction; the Agreement,
supplemental agreement, intergovernmental agreement, monitoring plan, and/or a landowner
agreement between the Funding Board and a Sponsor.
Applicant - Any agency or organization that meets the qualifying standards, including deadlines,
for submission of an application soliciting a grant of funds from the Funding Board.
Application - The forms and support documents approved by the Funding Board or its Director for
use by applicants in soliciting project funds administered by the Office.
Asset - Equipment purchased by the Sponsor or acquired or transferred to the Sponsor for the
purpose of this Agreement. This definition is restricted to non-fixed assets, such as vehicles,
computers or machinery.
Contractor - shall mean one not in the employment of the Sponsor who is performing all or part of
the eligible activities for this projects under a separate Agreement with the Sponsor. The term
"Contractor" and "Contractors" means Contractor(s) in any tier.
Development/Restoration - The construction, renovation, redevelopment, or installation of
facilities to provide for outdoor recreation or natural resources.
Director - The Office Director or the Director's designee.
Funding Board -As identified in Paragraph A in the Agreement as either the (1) Interagency
Committee for Outdoor Recreation (IAC) - The committee created under Chapter 79A.25.110 RCW
includes eight members. Three are agency heads: the Commissioner of Public Lands, the Director
of Parks and Recreation, and the Director of Fish and Wildlife (or their designees). Five, by
appointment of the Governor with the advice and consent of the Senate, are members of the public
at large who have demonstrated interest in and a general knowledge of outdoor recreation in the
state; (2) Salmon Recovery Funding Board (SRFB) The Board created under Chapter 77.85.110
RCW, is comprised of five governor-appointed voting members (one a cabinet-level appointment)
and five non-voting state officials: the Commissioner of Public Lands, the Secretary of
Transportation, the Director of the Conservation Commission, the Director of Fish and Wildlife, and
the Director of Ecology (or their designees); or (3) Hatchery Scientific Review Group (HSRG) - The
independent Board established by Congress to ensure hatchery reform programs in Puget Sound
and Coastal Washington are scientifically founded and evaluated.
Office - Office of the Interagency Committee - The Office provides support to the IAC, SRFB,
and HSRG. The Office includes the Director and personnel, created by Chapters 79A.25.110 and
79A.25.150 RCW and charged with administering this Agreement by Chapters 77.85.110 and
79A.25.240 RCW.
Landowner Agreement - A landowner agreement is required between a Sponsor and landowner
for projects located on land not owned, or otherwise controlled, by the Sponsor for salmon recovery
projects.
Milestone - Important date(s) tracked in the Agreement for monitoring the Project status.
Period of Performance - The time period specified in the Agreement, under Section E, Period of
Performance.
Post Evaluation Summary - One of the documents used to summarize and describe the actions
untaken in the Agreement.
Project - The undertaking that is the subject of this Agreement and that is, or may be, funded in
whole or in part with funds administered by the Office on behalf of the Funding Board.
Sponsor - The applicant who has been awarded a grant of funds and is bound by this executed
Agreement; includes its officers, employees and agents.
April 15, 2002 - Page 2
General Provisions
SECTION 2. PERFORMANCE BY THE SPONSOR
The Sponsor shall undertake the Project as described in this Agreement, Post Evaluation Summary, the
Sponsor's application, and in accordance with the Sponsor's proposed goals and objectives described in
the application or documents submitted with the application, all as finally approved by the Funding Board.
All submitted documents are incorporated by this reference as if fully set forth herein. The Order of
Precedence is covered in Section 26.
Timely completion of the Project is important. Failure to do so, as set out in this Agreement, is a material
breach of the Agreement.
SECTION 3. ASSIGNMENT
Neither this Agreement, nor any claim arising under this Agreement, shall be transferred or assigned by
the Sponsor without prior written consent of the Funding Board.
SECTION 4. RESPONSIBILITY FOR PROJECT
While the Funding Board undertakes to assist the Sponsor with the Project by providing a grant pursuant
to this Agreement, the Project itself remains the sole responsibility of the Sponsor. The Funding Board
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, as those phases are applicable
to this Project, is solely that of the Sponsor, as is responsibility for any claim or suit of any nature by any
third party related in any way to the Project.
SECTION 5. INDEMNIFICATION
To the fullest extent permitted by the law, the Sponsor expressly agrees to and shall indemnify, defend
and hold harmless the State and its agencies, officials, agents and employees from and against all
claims, actions, costs, damages, or expenses of any nature arising out of or incident to the Sponsor's or
any Contractor's performance or failure to perform the Agreement. Sponsor's obligation to indemnify,
defend and hold harmless also includes any claim by Sponsor's agents, employees, representatives or
any Contractor or its employees. Sponsor's obligation to defend includes payment of any costs or
attorneys' fees. Sponsor's obligation shall not include such claims that may be caused by the sole
negligence of the State and its agencies, officials, agents, and employees. If the claims or damages are
caused by or result from the concurrent negligence of (a) the State, its agents or employees and (b) the
Sponsor, its Contractors, agents, or employees, this indemnity provision shall be valid and enforceable
only to the extent of the negligence of the Sponsor or its Contractors, agents, or employees. The Sponsor
expressly agrees to waive his/her immunity under Title 51 RCW to the extent required to indemnify,
defend, and hold harmless the State and its agencies, officials, agents or employees.
SECTION 6. INDEPENDENT CAPACITY OF THE SPONSOR
The Sponsor and its employees or agents performing under this Agreement are not employees or agents
of the Funding Board or the Office. The Sponsor will not hold itself out as nor claim to be an officer or
employee of the Office or of the state of Washington by reason hereof, nor will the Sponsor make any
claim of right, privilege or benefit which would accrue to an employee under Chapters 41.06 or 288.16
RCW.
The Sponsor is responsible for withholding and/or paying employment taxes, insurance, or deductions of
any kind required by federal, state, and/or local laws.
SECTION 7. CONFLICT OF INTEREST
Notwithstanding any determination by the Executive Ethics Board or other tribunal, the Office may, in its
sole discretion, by written notice to the Sponsor terminate this Agreement if it is found after due notice
and examination by the Office that there is a violation of the Ethics in Public Service Act, Chapter 42.52
RCW; or any similar statute involving the Sponsor in the procurement of, or performance under this
Agreement. In the event this Agreement is terminated as provided above, the Office shall be entitled to
pursue the same remedies against the Sponsor as it could pursue in the event of a breach of the
April 15, 2002 - Page 3
General Provisions
Agreement by the Sponsor. The rights and remedies of the Office provided for in this clause shall not be
exclusive and are in addition to any other rights and remedies provided by law. The existence of facts
upon which the Office makes any determination under this clause shall be an issue and may be reviewed
as provided in the "Disputes Hearing" clause of this Agreement.
In the event this Agreement is terminated as provided above, the Funding Board or the Office 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 the Funding Board or the Office provided for
in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law.
The existence of facts upon which the Funding Board or the Office makes.any determination under this.
clause may be reviewed as provided in the "Disputes" clause of this Agreement.
SECTION 8. ACKNOWLEDGMENT AND SIGNS
A. Publications. The Sponsor shall include language which acknowledges the funding contribution of the
program to this Project in any release or other publication developed or modified for, or referring to,
the Project.
B. Signs. The Sponsor also shall post signs or other appropriate media at Project entrances and other
locations on the Project which acknowledge the program's funding contribution, unless exempted in
Funding Board policy or waived by the Director.
C. Ceremonies. The Sponsor shall notify the Office no later than two weeks before a dedication
ceremony for this Project. The Sponsor shall verbally acknowledge the program's funding contribution
at all dedication ceremonies.
D. Federally Funded Projects. When issuing statements, press releases, requests for proposals, bid
solicitations, and other documents describing a project funded in whole or in part with federal money
provided for in this grant, Sponsors shall clearly state:
1. The percentage of the total costs of the Project that is financed with federal money;
2. The dollar amount of federal funds for the Project; and
3. The percentage and dollar amount of the total costs of the Project that is financed by
nongovernmental sources.
SECTION 9. COMPLIANCE WITH APPLICABLE LAW
The Sponsor will implement the Agreement in accordance with applicable federal, state, and local laws
and regulations.
The Sponsor shall comply with, and the Office is not responsible for determining compliance with, any
and all applicable federal, state, and local laws, regulations, and/or policies, including, but not limited to,
State Environmental Policy Act; Industrial Insurance Coverage; Architectural Barriers Act; permits
(shoreline, Hydraulics Project Approval, demolition); land use regulations (comprehensive areas
ordinances, Growth Management Act); federal and state safety and health regulations (Occupational
Safety and Health Administration/Washington Industrial Safety and Health Act); and Buy American Act.
The Sponsor shall comply with all applicable federal, state, and local nondiscrimination laws and/or
policies, including but not limited to, the Americans with Disabilities Act; Civil Rights Act; and the Age
Discrimination Act. In the event of the Sponsor's noncompliance or refusal to comply with any
nondiscrimination law or policy, the Agreement may be rescinded, cancelled, or terminated in whole or in
part, and the Sponsor may be declared ineligible for further grant awards from the Funding Board. The
Sponsor is responsible for any and all costs or liability arising from the Sponsor's failure to so comply with
applicable law.
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.
April 15, 2002 - Page 4
General Provisions
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.
For habitat restoration projects funded in part or whole with National Marine Fisheries Service funding,
Sponsor shall not commence with clearing of riparian trees or in-water work unless and until an ESA
consultation is completed and delivered by National Marine Fisheries Service to the Sponsor. Violation of
this paragraph shall not be the basis for any enforcement responsibility by the IAC.
SECTION 10. RECORDS MAINTENANCE
The Sponsor shall maintain books, records, documents, data and other evidence relating to this
Agreement and performance of the services described herein, including but not limited to accounting
procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature
expended in the performance of this Agreement. Sponsor shall retain such records for a period of six
years following the date of final payment. At no additional cost, these records, including materials
generated under the Agreement, shall be subject at all reasonable times to inspection, review or audit by
the Office, personnel duly authorized by the Office, the Office of the State Auditor, and federal and state
officials so authorized by law, regulation or agreement.
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall
be retained until all litigation, claims, or audit findings involving the records have been resolved.
SECTION 11. ACCESS TO DATA
In compliance with chapter 39.29 RCW, the Sponsor shall provide access to data generated under this
Agreement to the Office, the Joint Legislative Audit and Review Committee, and the State Auditor at no
additional cost. This includes access to all information that supports the findings, conclusions, and
recommendations of the Sponsor's reports, including computer models and methodology for those
models.
SECTION 12. TREATMENT OF ASSETS
A. Assets shall remain in the possession of the Sponsor for the duration of the project or program. When
the Sponsor discontinues use of the asset(s) for the purpose for which it was funded, the Office will
require the Sponsor deliver the asset(s) to the Office, dispose of the asset according to agency
policies, or return the fair market value of the asset(s) to the Office. Assets shall be used only for the
purpose of this Agreement, unless otherwise provided herein or approved by the Office in writing.
B. The Sponsor shall be responsible for any loss or damage to assets which results from the negligence
of the Sponsor or which results from the failure on the part of the Sponsor to maintain and administer
that property in accordance with sound management practices.
SECTION 13. RIGHT OF INSPECTION
The Sponsor shall provide right of access to its facilities to the Office, 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, compliance, and/or quality assurance under this
Agreement.
If a Landowner Agreement has been executed, it may further stipulate and define the Funding Board and
the Office's right to inspect and access lands acquired or developed with Funding Board assistance.
April 15, 2002 - Page 5
General Provisions
SECTION 14. STEWARDSHIP AND MONITORING
Sponsor agrees to perform monitoring and stewardship functions as stated in the monitoring and
stewardship plans as approved by the Funding Board or the Office. Sponsor further agrees to utilize,
where applicable and financially feasible, any monitoring protocols recommended by the Funding Board.
SECTION 15. DEBARMENT CERTIFICATION
The Sponsor certifies it is not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participating in this Agreement by any Federal department or
agency. If requested by the Office, the Sponsor shall complete a Certification Regarding Debarment,
Suspension, Ineligibility, and Voluntary Exclusion form. Any such form completed by the Sponsor for this
Agreement shall be incorporated into this Agreement by reference.
SECTION 16. PROJECT FUNDING
A. Additional Amounts. The Funding Board 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 Funding Board or Director and incorporated by written amendment into this Agreement.
B. Before the Agreement. No expenditure made, or obligation incurred, by the Sponsor before the
effective date of this Agreement shall be eligible for grant funds, in whole or in part, unless specifically
provided for by Funding Board policy. The dollar amounts identified in this Agreement may be
reduced as necessary to exclude any such expenditure from reimbursement.
C. After the Period of Performance. No expenditure made, or obligation incurred, following the period of
performance shall be eligible, in whole or in part, for grant funds hereunder. In addition to any remedy
the Funding Board may have under this Agreement, the amounts identified in this Agreement shall be
reduced to exclude any such expenditure from participation.
SECTION 17. PROJECT REIMBURSEMENTS
A. Compliance and Payment. The obligation of the Office to pay any amount(s) under this Agreement is
expressly conditioned upon strict compliance with the terms of this Agreement by the Sponsor.
B. Compliance and Retainage. The Office reserves the right to withhold disbursement of the final ten
percent (10%) of the total amount of the grant to the Sponsor until the Project has been completed
and approved by the Director. A Project is considered "complete" when:
1. all approved or required activities outlined in the Agreement are complete;
2. on-site signs are in place (if applicable);
3. a final Project report is submitted to the Office with the Sponsor's final request for reimbursement;
4. the completed Project has been approved by the Office;
5. final amendments have been processed; and
6. fiscal transactions are complete.
C. Invoice Frequency. Invoices are required at least once a quarter from state agency sponsors and at
least once a year from all other sponsors. The year-end invoice should include expenditures through
June 30, the last day of the State's fiscal year and be submitted no later than July 15th. Final
reimbursement requests should be submitted to the Office within ninety (90) days of the completion of
the Project, funding end date, or the termination date, whichever comes first.
SECTION 16. ADVANCE PAYMENTS
Advance payments of or in anticipation of goods or services to be provided under this Agreement are
limited to salmon grants and must comply with SRFB policy.
April 15, 2002 - Page 6
General Provisions
SECTION 19. NON-AVAILABILITY OF FUNDS
If amounts sufficient to fund the grant made under this Agreement are not appropriated by the
Washington State Legislature, or if such funds are not allocated by the Washington State Office of
Financial Management (OFM) to the Office for expenditure for this Agreement in any biennial fiscal
period, the Office shall not be obligated to pay any remaining unpaid portion of this grant unless and until
the necessary action by the Legislature or OFM occurs. If the Office participation is suspended under this
section for a continuous period of one year, the Office's obligation to provide any future funding under this
Agreement shall terminate. Termination of the Agreement under this section is not subject to appeal by
the Sponsor.
SECTION 20. RECOVERY OF PAYMENTS
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, the Office reserves the right to recover grant award
funds in the amount equivalent to the extent of noncompliance in addition to any other remedies available
at law or in equity.
The Sponsor shall reimburse the Office 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 the Office. Interest shall accrue at the rate of twelve percent (12%) per annum from
the time that payment becomes due and owing.
SECTION 21. COVENANT AGAINST CONTINGENT FEES
The Sponsor warrants that no person or selling agent has been employed or retained to solicit or secure
this Agreement upon 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. The Office shall have the right, in the event of breach of
this clause by the Sponsor, to annul this Agreement without liability or, in its discretion, to deduct from the
Agreement price or consideration or recover by other means the full amount of such commission,
percentage, brokerage or contingent fee.
SECTION 22. PROVISIONS APPLYING TO DEVELOPMENT/RESTORATION PROJECTS
The following provisions shall be in force only if the Project described in this Agreement is for
development/restoration of land or facilities for outdoor recreation, habitat conservation, or salmon
recovery:
A. Construction Document Review and Approval. The Sponsor agrees to submit one copy of all
construction plans and specifications to the Office for review. Review and approval by the Office will
be for compliance with the terms of this Agreement.
B. Contracts for Construction. Sponsor shall award all contracts for construction using whatever method
is appropriate and legal for the Sponsor.
C. Construction Contract Change Order. Only change orders that significantly reduce or change the
scope of the Project as described to and approved by the Funding Board or the Office must receive
prior written approval.
D. Control and Tenure. Appropriate control and tenure of the land proposed for use must be executed
and documented.
E. Nondiscrimination. Except where a nondiscrimination clause required by a federal funding agency is
used, the Sponsor shall insert the following nondiscrimination clause in each contract for construction
of this Project:
"During the performance of this contract, the Sponsor agrees to comply with
all federal and state nondiscrimination laws, regulations and policies."
April 15, 2002 - Page 7
General Provisions
SECTION 23. PROVISIONS APPLYING TO ACQUISITION PROJECTS
The following provisions shall be in force only if the Project described in this Agreement is for the
acquisition of interest in real property for outdoor recreation, habitat conservation, or salmon recovery
purposes:
A. Evidence of Land Value. Before disbursement of funds by the Office as provided under this
Agreement, the Sponsor agrees to supply evidence to the Office that the land acquisition cost has
been established per Funding Board policy.
B. Evidence of Title. The Sponsor agrees to show the type of ownership interest for the property that has
been acquired. This shall be done before any payment of financial assistance.
C. Deed of Right to Use Land for Public Purposes. The Sponsor agrees to execute an instrument or
instruments which contain:
1. The legal description of the property acquired under this Agreement;
2. A conveyance to the State of Washington of the right to use the described real property forever
for the purpose identified in the Agreement; and
3. A requirement to comply with applicable statutes, rules, and the Funding Board policies with
respect to conversion of use.
D. Assignment of Right. When acquiring a conservation easement, the Sponsor agrees to execute an
instrument or instruments that contain:
1. The legal description of the conservation easement acquired under this Agreement;
2. An assignment to the State of certain rights for access to and stewardship of the property covered
by the conservation easement;
3. Acknowledgement of the right of the Funding Board and the Office for enforcement of the
provisions of the conservation easement; and
4. A statement that the Sponsor will retain all responsibility for obligations under the terms of the
conservation easement.
E. Real Property Acquisition and Relocation Assistance
1. When federal funds are part of this Agreement, the Sponsor agrees to comply with the terms and
conditions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, 84 Stat. 1894 (1970)--Public Law 91-646, as amended by the Surface Transportation and
Uniform Relocation Assistance Act, PL 100-17-1987, and applicable regulations and procedures
of the federal agency implementing that Act.
2. When state funds are part of this Agreement, the Sponsor, if required by law, agrees to comply
with the terms and conditions of the Uniform Relocation Assistance and Real Property Acquisition
Policy of the State of Washington, Chapter 8.26.010 RCW), and Chapter 468-100 WAC.
3. Housing and Relocation. In the event that housing and relocation costs, as required by federal
law set out in subsection (1) above and/or state law set out in subsection (2) above, are involved
in the execution of this Project, the Sponsor agrees to provide any housing and relocation
assistance required.
SECTION 24. HAZARDOUS SUBSTANCES
A. Definition. "Hazardous substance," as defined in Chapter 70.105D.020 (7) RCW, means:
1. Any dangerous or extremely hazardous waste as defined in Chapter 70.105.010(5) and (6) RCW,
or any dangerous or extremely dangerous waste designated by rule pursuant to Chapter 70.105
RCW;
2. Any hazardous substance as defined in Chapter 70.105.010(14) RCW or any hazardous
substance as defined by rule pursuant to Chapter 70.105. RCW;
3. Any substance that, on March 1, 1989, is a hazardous substance under section 101(14) of the
federal cleanup law, 42 U.S.C. Sec. 9601(14);
4. Petroleum or petroleum products; and
April 15, 2002 - Page 8
General Provisions
5. Any substance or category of substances, including solid waste decomposition products,
determined by the director for director's designee of the department of ecology] by rule to present
a threat to human health or the environment if released into the environment.
6. The term hazardous substance does not include any of the following when contained in an
underground storage tank from which there is not a release: Crude oil or any fraction thereof or
petroleum, if the tank is in compliance with all applicable federal, state, and local law.
B. Certification. The Sponsor shall inspect, investigate, and conduct an environmental audit of the
proposed acquisition site for the presence of hazardous substances and certify:
(1) No hazardous substances were found on the site, or
(2) Any hazardous substances found have been treated and/or disposed of in compliance with
applicable state and federal laws, and the site deemed "clean."
C. Responsibility. Nothing in this.provision alters the Sponsor's duties and liabilities regarding hazardous
substances as set forth in Chapter 70.105D RCW:
D. Hold Harmless. The Sponsor will defend, protect and hold harmless the Office and any and all of its
employees and/or agents, from and against any and all liability, cost (including but not limited to all
costs of defense and attorneys' fees) and any and all loss of any nature from any and all claims or
suits resulting from the presence of, or the release or threatened release of, hazardous substances
on the property being acquired.
SECTION 25. RESTRICTION ON CONVERSION OF FACILITY TO OTHER USES
The Sponsor shall not at any time convert any real property acquired or any facility developed pursuant to
this Agreement to uses other than those purposes for which assistance was originally approved, without
the approval of the Funding Board or Director, in compliance with applicable statutes, rules, and Funding
Board policies as identified in this Agreement. It is the intent of Funding Board's conversion policy that all
lands acquired and all lands developed with funding assistance from the Funding Board remain in the
public domain in perpetuity unless otherwise identified in the Agreement.
A. By Funding Board policy a conversion may occur under any of the following circumstances:
1. Conveyance. Property interests are conveyed for purposes inconsistent with the intent of the
Agreement and the funding source.
2. Use. Non-eligible uses (public or private) are made of the Project area, or portion thereof.
3. Eligibility. Non-eligible facilities are developed within the Project area without prior approval of the
Funding Board or the Office.
4. Termination of Use/Non-Conformance. The property acquired or project developed no longer
meets or conforms to the intent of the Agreement or the funding source.
B. Element Change. When approved by the Funding Board or Director; certain elements may be deleted
from the Agreement without invoking the requirement to replace the elements. Such deletions are
allowed when the Funding Board or Director determines that the elements are not needed or cannot
be retained due to one or more of the following conditions:
1. Obsolescence
2. Extraordinary vandalism
3. Acts of Nature
4. Designed life expectancy reached
5. Fire
6. Property or property rights lost as a result of legal action
7. ICC National Trails System Act reversion order (National Trails System Act 8(d), 16 U.S.C. §
1247(d); WAC 286-27-060(2)).
April 15, 2002 -Page 9
General Provisions
SECTION 26. CONSTRUCTION, OPERATION, USE AND MAINTENANCE OF ASSISTED
PROJECTS
Sponsors must ensure that properties or facilities assisted with Funding Board funds, including
undeveloped sites, are built, operated, used, and maintained:
A. According to applicable federal, state, and local laws and regulations, including public health
standards and building codes.
B. In a reasonably safe condition for the project's intended use.
C. Throughout its estimated life so as to prevent undue deterioration.
D. In compliance with all federal and state nondiscrimination laws, regulations and policies.
Facilities open to the public must:
E. Follow all state and federal accessibility guidelines.
F. Appear attractive and inviting to the public except for brief installation, construction, or maintenance
periods.
G. Be available for use at reasonable hours and times of the year, according to the type of area or
facility.
SECTION 27. INCOME AND INCOME USE
A. Income.
1. Compatible source. The source of any income generated in a Funding Board assisted Project or
project area must be compatible with the funding source and the Agreement.
2. Fees. User and/or other fees may be charged in connection with land acquired or facilities
developed with Funding Board grants if the fees are consistent with the:
(a) Value of any service(s) furnished;
(b) Value of any opportunity(ies) furnished; and
(c) Prevailing range of public fees in the state for the activity involved.
Excepted are Firearms and Archery Range Recreation Program safety classes (firearm and/or
hunter) for which a facility/range fee must not be charged (Chapter 79A.252.210 RCW).
B. Income use. Regardless of whether income or fees in a Funding Board-assisted area (including
entrance, utility corridor permit, cattle grazing, timber harvesting, farming, etc.) are gained during or
after the reimbursement period cited in the Agreement, unless precluded by state law, the revenue
may only be used to offset:
1. the Sponsor's matching funds; and/or
2. the Project's total cost; and/or
3. the expense of operation, maintenance, stewardship, monitoring, and/or repair of the facility or
program assisted by the Funding Board grant; and/or
4. the expense of operation, maintenance, stewardship, monitoring, and/or repair of other similar
units in the Sponsor's system; and/or
5. capital expenses for similar acquisition and/or development.
SECTION 28. PREFERENCES FOR RESIDENTS
Sponsors shall not express a preference for users of grant assisted projects on the basis of residence
(including preferential reservation, membership, and/or permit systems) except that reasonable
differences in admission and other fees may be maintained on the basis of residence. Even so, the
Funding Board discourages the imposition of differential fees. Fees for nonresidents must not exceed
twice the fee imposed on residents. Where there is no fee for residents but a fee is charged to
nonresidents, the nonresident fee shall not exceed the amount that would be imposed on residents at
comparable state or local public facilities.
April 15, 2002 - Page 10.
General Provisions
SECTION 29. PROVISIONS RELATED TO NON-PROFIT OR NOT-FOR-PROFIT SPONSORS
A non-profit or not-for-profit organization sponsor shall:
A. Maintain a non-profit or not-for-profit status (including registering with the Washington Secretary of
State) throughout the Sponsor's obligation to the Project as identified in this Agreement.
B. Notify the Office prior to dissolution and within 30 days of dissolution the Sponsor shall name a
qualified successor that will agree in writing to assume any on-going project responsibilities. A
qualified successor is any party eligible to apply for funds in the subject grant program and capable of
complying with the terms and conditions of this Agreement. The Office will process an amendment
transferring the Sponsor's obligation to the qualified successor.
C. Provide for operation and maintenance of the project. Should the Sponsor fail in this obligation for any
reason, the Project will be considered converted or a failed project, and be subject to all remedies
available to the Funding Board and the Office.
SECTION 30. LIABILITY INSURANCE REQUIREMENTS FOR FIREARM RANGE SPONSORS
A. The Sponsor' shall procure an endorsement, or other addition; to liability insurance it may currently
carry, or shall procure a new policy of liability insurance, in a total coverage amount the Sponsor
deems adequate to ensure it will have resources to pay successful claims of persons who may be
killed or injured, or suffer damage to property, while present at the range facility to which this grant is
related, or by reason of being in the vicinity of that facility; provided that the coverage shall be at least
one million dollars ($1,000,000) for the death of, or injury to, each person.
B. The liability insurance policy, including any endorsement or addition, shall name Washington State,
the Funding Board, and the Office as additional insureds and shall be in a form approved by the
Funding Board or Director.
C. The policy, endorsement or other addition, or a similar liability insurance policy meeting the
requirements of this section, shall be kept in force throughout the Sponsor's obligation to the Project
as identified in this Agreement.
D. The policy, as modified by any endorsement or other addition, shall provide that the issuing company
shall give written notice to the Office not less than thirty (30) calendar days in advance of any
cancellation of the policy by the insurer, and within ten (10) calendar days following any termination of
the policy by the Sponsor.
E. The requirement of Subsection A through D above shall not apply if the Sponsor is a federal, state,
or municipal government which has established a program of self-insurance or a policy of self-
insurance with respect to claims arising from its facilities or activities generally, including such
facilities as firearms or archery ranges, when the applicant declares and describes that program or
policy as a part of its application to the Funding Board.
F. By this requirement, the Funding Board and the Office does not assume any duty to any individual
person with respect to death, injury, or damage to property which that person may suffer while
present at, or in the vicinity of, the facility to which this grant relates. Any such person, or any other
person making claims based upon such death, injury, or damage, must look to the Sponsor, or
others, for any and all remedies that may be available by law.
SECTION 31. REQUIREMENTS OF THE NATIONAL PARK SERVICE
If the Project has been approved by the National Park Service, United States Department of the Interior,
for assistance from the Federal Land and Water Conservation Fund (LWCF), the Agreement General
Provisions in Section 660.3 Attachment B of the L&WCF Grants-in-Aid Manual as now existing or
hereafter amended are made part of this Agreement, and the Sponsor shall also abide by these
Agreement General Provisions. Further, the Sponsor agrees to provide the Office with reports or
documents needed to meet the requirements of the Agreement or Section 660.3 Attachment B of the
L&WCF Grants-in-Aid Manual.
' As used in this Section, Sponsor refers to Firearms Range Sponsors.
April 15, 2002 - Page 11
General Provisions
SECTION 32. 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
an inconsistency in the terms of this Agreement, or between its terms and any applicable statute, rule, or
policy or procedure, the inconsistency shall be resolved by giving precedence in the following order:
A. Applicable federal and/or state statutes, regulations, policies and procedures including applicable
federal Office of Management and Budget (OMB) circulars and federal and state executive orders;
B. Project Agreement including attachments;
C. Additional Provisions or Modifications of General Provisions;
D. General Provisions.
SECTION 33. AMENDMENTS
This Agreement may be amended by mutual agreement of the parties. Such amendments shall not be
binding unless they are in writing and signed by personnel authorized to bind each of the parties.
SECTION 34. LIMITATION OF AUTHORITY
Only the Office or Office's delegate by writing (delegation to be made prior to action) shall have the
express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this
Agreement. Furthermore, any alteration, amendment, modification, or waiver or any clause or condition of
this Agreement is not effective or binding unless made in writing and signed by the Office.
SECTION 35. WAIVER OF DEFAULT
Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of
any provision of the Agreement shall not be deemed to be a waiver of any other or subsequent breach
and shall not be construed to be a modification of the terms of the Agreement unless stated to be such in
writing, signed by the Director, or the Director's designee, and attached to the original Agreement.
SECTION 36. APPLICATION REPRESENTATIONS - MISREPRESENTATIONS OR INACCURACY
OR BREACH
The Funding Board and the Office rely upon the Sponsor's application in making its determinations as to
eligibility for, selection for, and scope of, funding grants. Any misrepresentation, error or inaccuracy in any
part of the application may be deemed a breach of this Agreement.
SECTION 37. TERMINATION AND OTHER REMEDIES
The Funding Board and the Office may require strict compliance by the Sponsor with the terms of this
Agreement including, but not limited to, the requirements of the applicable statutes, rules and Funding
Board policies which are incorporated into this Agreement, and with the representations of the Sponsor in
its application for a grant as finally approved by the Funding Board.
The Funding Board or the Director, may suspend, or may terminate, the obligation to provide funding to
the Sponsor under this Agreement:
A. In the event of any breach by the Sponsor of any of the Sponsor's obligations under this Agreement;
or
B. If the Sponsor fails to make progress satisfactory to the Funding Board or Director toward completion
of the Project by the completion date set out in this Agreement.
In the event this Agreement is terminated by the Funding Board or Director, under this section or any
other section after any portion of the grant amount has been paid to the Sponsor under this Agreement,
the Funding Board or Director may require that any amount paid be repaid to the Office for redeposit into
the account from which the funds were derived.
April 15, 2002 - Page 12
General Provisions
The Funding Board and the Office may enforce this Agreement by the remedy of specific performance,
which usually will mean completion of the Project as described in this Agreement. However, the remedy
of specific performance shall not be the sole or exclusive remedy available to the Office. No remedy
available to the Funding Board or the Office shall be deemed exclusive. The Funding Board or the Office
may elect to exercise any, any combination, or all of the remedies available to it under this Agreement, or
under any provision of law, common law, or equity.
SECTION 38. TERMINATION FOR CONVENIENCE
Except as otherwise provided in this Agreement, the Office may, by ten (10) days written notice,
beginning on'the second day after the mailing, terminate this Agreement, in whole or in part. If this
Agreement is so terminated, the Office shall be liable only for payment required under the terms of this
Agreement for services rendered or goods delivered prior to the effective date of termination.
SECTION 39. DISPUTE HEARING
Except as may otherwise be provided in this Agreement, when a dispute arises between the Sponsor and
the Funding Board, which cannot be resolved, either party may request a dispute hearing according to the
process set out in this section. Either party's request for a dispute hearing must be in writing and clearly
state:
A. The disputed issues;
B. The relative positions of the parties;
C. The Sponsor's name, address, project title, and the assigned project number.
In order for this section to apply to the resolution of any specific dispute or disputes, the other party must
agree in writing that the procedure under this section shall be used to resolve those specific issues. The
dispute shall be heard by a panel of three persons consisting of one person chosen by the Sponsor, one
person chosen by the Director, and a third person chosen by the two persons initially appointed. If a third
person cannot be agreed upon, the third person shall be chosen by the Funding Board's Chair.
Any hearing under this section shall be informal, with the specific processes to be determined by the
disputes panel according to the nature and complexity of the issues involved. The process may be solely
based upon written material if the parties so agree. The disputes panel shall be governed by the
provisions of this Agreement in deciding the disputes.
The parties shall be bound by the decision of the disputes panel, unless the remedy directed by that
panel shall be without the authority of either or both parties to perform, as necessary, or is otherwise
unlawful
Request for a disputes hearing under this section by either party shall be delivered or mailed to the other
party. The request shall be delivered or mailed within thirty (30) days of the date the requesting party has
received notice of the action or position of the other party which it wishes to dispute. The written
agreement to use the process under this section for resolution of those issues shall be delivered or
mailed by the receiving party to the requesting party within thirty (30) days of receipt by the receiving
party of the request.
All costs associated with the implementation of this process shall be shared equally by the parties.
SECTION 40. ATTORNEYS' FEES
If either party brings litigation to enforce any term or condition of this Agreement, or as a result of this
Agreement, the prevailing party shall be awarded its reasonable attorneys' fees together with necessary
fees, expenses, and costs incurred for such litigation at both trial and appellate levels, as well as in
obtaining execution of judgment. The reasonableness of such costs and attorneys' fees shall be
determined by the court and not a jury.
April 15, 2002 - Page 13
General Provisions
SECTION 41. GOVERNING LAW/VENUE
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 proper only in Thurston
County Superior Court. The Sponsor, by execution of this Agreement acknowledges the jurisdiction of the
courts of the State of Washington.
In the cases where this agreement is between the Funding Board and a federally recognized Indian tribe,
the following Governing LawNenue applies:
A. The State of Washington agrees that it shall initiate any lawsuit against a federally recognized Indian
tribe arising out of or relating to the performance, breach or enforcement of this agreement in Federal
Court. Interpretation shall be according to the law of the State of Washington. In the event that the
Federal Court determines that it lacks subject matter jurisdiction to resolve the dispute between the
State and Tribal Party, then the parties agree to venue in Thurston County Superior Court, but the
parties agree that the matter shall not be pursued in superior court unless there is a Federal Court
determination that it lacks subject matter jurisdiction.
B. Any judicial award, determination, order, decree or other relief, whether in law or equity or otherwise,
resulting from the action shall be binding and enforceable upon the parties. Any money judgment or
award against the Tribe, tribal officers and members, or the State of Washington and its officers and
employees may not exceed the amount provided for in Section F- Project Funding of the Agreement.
C. The Tribe hereby waives its sovereign immunity as necessary to give effect to this section, and the
State of Washington has waived its immunity to suit in state court. These waivers are only for the
benefit of the Tribe and State and shall not be enforceable by any third party or by any assignee or
delegate of the parties. In any enforcement action, the parties shall bear their own enforcement costs,
including attorneys' fees.
SECTION 42. 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.
Amendment to Project Agreement
Project Sponsor: City of Auburn Project Number: 06-1834D
Project Title: Auburn Environmental Mitigation Bank Amendment Number: 1
Amendment Type:
Scope Change
Amendment Description:
Per the sponsor's request, the project agreement is amended to include costs for
construction of a viewing tower as part of the boardwalk trail.
Agreement Terms
In all other respects the Agreement, to which this is an Amendment, and attachments thereto, shall
remain in full force and effect. In witness whereof the parties hereto have executed this Amendment.
State Of Washington
Recreation and Conservation Office
Q*aLt t6ttx-k
BY: Stu iareX "1 ,
Kaleen CottinqharrY
Project Sponsor
AGENCY: (1 ?i it Vl
BY:
TITLE: Director
DATE: 1%i1 or
Pre-approved as to form:
BY: /S/
Assistant Attorney General
WWRP Project Scope Change Amendment
Habitat Conservation Account
AMENAGR2.RPT
TITLE: Nor
DATE: tolayla???
Chapter 79A.15 RCW, Chapter 286 WAC
Amendment Eligible Reimbursement Activities Report
Project Sponsor: City of Auburn Project Number: 06-1834 D
Project Title: Auburn Environmental Mitigation Bank Amendment Number: 1
Development Items:
Worksite
Element
Item
Unit
Quantity
Description
Auburn Mitigation Site Architectural & Engineering A & E development Lump Sum 1.00
Auburn Mitigation Site Trails Board walk - wood Linear Ft 7,920.00 Elevated Boardwalk to
have the least impact on
the wetlands
Auburn Mitigation Site Site Preparation Clearing Acres 20.00
Auburn Mitigation Site Cultural Resources Cultural resource survey Optional 1.00 Pending cultural resources
reviewed
Auburn Mitigation Site Site Preparation Cut Cubic Yds 21,000.00
Auburn Mitigation Site Site Preparation Erosion control Lump sum 1.00 Erosion Control including
any dewatering
Auburn Mitigation Site Landscaping Grass - hydro seed Acres 20.00
Auburn Mitigation Site Landscaping Habitat enhancement Lump sum 1.00 Habitat Structures
including snags, LWD
Auburn Mitigation Site Permits Permits Lump sum 1.00 Including Hydraulic Study
Auburn Mitigation Site Sales Tax Sales Tax Lump Sum 1.00
Auburn Mitigation Site Site Preparation Top soil Cubic Yds 1,000.00
Auburn Mitigation Site Landscaping Trees/shrubs Lump sum 1.00
Auburn Mitigation Site Viewpoints Viewpoints Lump sum 1.00 bird viewing tower
AELIGREIM.RPT October 6, 2008 Page: 1