044-19 - Reid Middleton, Inc. - ContractCITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT
THIS Agreement is made effective as of the 25'b day of June 2019, by and between the City of
Port Orchard, a municipal corporation, organized under the laws of the State of Washington, whose
address is:
CITY OF PORT ORCHARD, WASHINGTON (hereinafter the "CITY")
216 Prospect Street
Port Orchard, Washington 98366
Contact: Mayor Robert Putaansuu Phone: 360.876.4407 Fax: 360.895.9029
And Reid Middleton, Inc., a Corporation, organized under the laws of the State of Washington,
doing business at:
Reid Middleton, Inc.
728 134t' Street SW, Suite 200
Everett, WA 98204
Contact: Julian L. Dodge, P.E.,
(hereinafter the "CONSULTANT")
Phone: 425.741.3800
for professional services in connection with the following Project:
2019-2020 Downtown Basin Stormwater Plan Project
TERMS AND CONDITIONS
1. Services by Consultant.
A. Consultant shall perform the services described in the Scope of Work attached to this
Agreement as Exhibits "A thru E." The services performed by the Consultant shall not exceed the Scope
of Work without prior written authorization from the City.
B. The City may from time to time require changes or modifications in the Scope of Work.
Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by
the parties and incorporated in written amendments to the Agreement.
2. Schedule of Work.
A. Consultant shall perform the services described in the Scope of Work in accordance with
the Tasks identified within Exhibit "F" and the Terms of this Agreement. If delays beyond Consultant's
reasonable control occur, the parties will negotiate in good faith to determine whether an extension is
appropriate.
B. Consultant is authorized to proceed with services upon receipt of a written Notice to
Proceed.
City of Port Orchard and Reid Middleton, Inc.
Public Works Project No. PW2019-004
Professional Service Agreement Contract No. C044-19
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3. Terms. This Agreement shall commence on June 26, 2019 ("Commencement Date") and shall
terminate December 31, 2020 unless extended or terminated in writing as provided herein.
Additionally, the City reserves the right to retain Reid Middleton, Inc. for the 100% Ad
Ready PS&E and Permitting Phase, and therefore, reserves the right to offer one year
extensions as -needed, prior to contract expiration to retain the selected company's services
for services that fall within the budget authority for this project.
4. Compensation.
❑ LUMP SUM. Compensation for these services shall be a Lump Sum of $
X TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not
exceed $206,593.00 without written authorization and will be based on the list of billing rates and
reimbursable expenses attached hereto as Exhibits "A thru F."
❑ TIME AND MATERIALS. Compensation for these services shall be on a time and material
basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit
❑ OTHER.
5. Payment.
A. Consultant shall maintain time and expense records and provide them to the City monthly
after services have been performed, along with monthly invoices in a format acceptable to the City for
work performed to the date of the invoice.
B. All invoices shall be paid by City warrant within sixty (60) days of receipt of a proper
invoice. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the
same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in
dispute, and the parties shall immediately make every effort to settle the disputed portion.
C. Consultant shall keep cost records and accounts pertaining to this Agreement available
for inspection by City representatives for three (3) years after final payment unless a longer period is
required by a third -party agreement. Copies shall be made available on request.
D. On the effective date of this Agreement (or shortly thereafter), the Consultant shall
comply with all federal and state laws applicable to independent contractors, including, but not limited to,
the maintenance of a separate set of books and records that reflect all items of income and expenses of the
Consultant's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to
show that the services performed by the Consultant under this Agreement shall not give rise to an
employer -employee relationship between the parties, which is subject to Title 51 RCW, Industrial
Insurance.
E. If the services rendered do not meet the requirements of the Agreement, Consultant will
correct or modify the work to comply with the Agreement. City may withhold payment for such work
until the work meets the requirements of the Agreement.
City of Port Orchard and Reid Middleton, Inc.
Public Works Project No. PW2019-004
Professional Service Agreement Contract No. C044-19
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6. Discrimination and Compliance with Laws
A. Consultant agrees not to discriminate against any employee or applicant for employment
or any other person in the performance of this Agreement because of race, creed, color, national origin,
marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or
ordinance, except for a bona fide occupational qualification.
B. Even though the Consultant is an independent contractor with the authority to control and
direct the performance and details of the work authorized under this Agreement, the work must meet the
approval of the City and shall be subject to the City's general right inspection to secure the satisfactory
completion thereof. The Consultant agrees to comply with all federal, state and municipal laws, rules and
regulations that are now effective or become applicable within the terms of this Agreement to the
Consultant's business, equipment and personnel engaged in operations covered by this Agreement or
accruing out of the performance of such operations.
C. Consultant shall obtain a City of Port Orchard business license prior to receipt of written
Notice to Proceed.
D. Violation of this Paragraph 6 shall be a material breach of this Agreement and grounds
for cancellation, termination, or suspension of the Agreement by City, in whole or in part, and may result
in ineligibility for further work for City.
7. Relationship of Parties. The parties intend that an independent contractor -client relationship
will be created by this Agreement. As the Consultant is customarily engaged in an independently
established trade which encompasses the specific service provided to the City hereunder, no agent,
employee, representative or sub -consultant of the Consultant shall be or shall be deemed to be the
employee, agent, representative or sub -consultant of the City. In the performance of the work, the
Consultant is an independent contractor with the ability to control and direct the performance and details
of the work, the City being interested only in the results obtained under this Agreement, None of the
benefits provided by the City to its employees including, but not limited to, compensation, insurance, and
unemployment insurance are available from the City to the employees, agents, representatives or sub -
consultants of the Consultant. The Consultant will be solely and entirely responsible for its acts and for
the acts of its agents, employees, representatives and sub -consultants during the performance of this
Agreement. The City may, during the term of this Agreement, engage other independent contractors to
perform the same or similar work that the Consultant performs hereunder.
8. Suspension and Termination of Agreement
A. Termination without cause. This Agreement may be terminated by the City at any time
for public convenience, for the Consultant's insolvency or bankruptcy, or the Consultant's assignment for
the benefit of creditors.
B. Termination with cause. The Agreement may be terminated upon the default of the
Consultant and the failure of the Consultant to cure such default within a reasonable time after receiving
written notice of the default.
C. Rights Upon Termination.
City of Port Orchard and Reid Middleton, Inc.
Public Works Project No. PW2019-004
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1. With or Without Cause. Upon termination for any reason, all finished or
unfinished documents, reports, or other material or work of Consultant pursuant to this
Agreement shall be submitted to City, and Consultant shall be entitled to just and equitable
compensation for any satisfactory work completed prior to the date of termination, not to exceed
the total compensation set forth herein. Consultant shall not be entitled to any reallocation of
cost, profit or overhead. Consultant shall not in any event be entitled to anticipated profit on work
not performed because of such termination. Consultant shall use its best efforts to minimize the
compensation payable under this Agreement in the event of such termination. Upon termination,
the City may take over the work and prosecute the same to completion, by contract or otherwise.
2. Default. If the Agreement is terminated for default, the Consultant shall not be
entitled to receive any further payments under the Agreement until all work called for has been
fully performed. Any extra cost or damage to the City resulting from such default(s) shall be
deducted from any money due or coming due to the Consultant. The Consultant shall bear any
extra expenses incurred by the City in completing the work, including all increased costs for
completing the work, and all damage sustained, or which may be sustained by the City by reason
of such default.
D. Suspension, The City may suspend this Agreement, at its sole discretion. Any
reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable
expenses, and shall be subject to verification. The Consultant shall resume performance of services under
this Agreement without delay when the suspension period ends.
E. Notice of Termination or Suspension. If delivered to the Consultant in person,
termination shall be effective immediately upon the Consultant's receipt of the City's written notice or
such date as stated in the City's notice of termination, whichever is later. Notice of suspension shall be
given to the Consultant in writing upon one week's advance notice to Consultant. Such notice shall
indicate the anticipated period of suspension. Notice may also be delivered to the Consultant at the
address set forth in Section 15 herein.
9. Standard of Care. Consultant represents and warrants that it has the requisite training, skill and
experience necessary to provide the services under this agreement and is appropriately accredited and
licensed by all applicable agencies and governmental entities. Services provided by Consultant under this
agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised
by members of the same profession currently practicing in similar circumstances.
10. Ownership of Work Product,
A. All data, materials, reports, memoranda, and other documents developed under this
Agreement whether finished or not shall become the property of City, shall be forwarded to City at its
request and may be used by City as it sees fit. Upon termination of this agreement pursuant to paragraph 8
above, all finished or unfinished documents, reports, or other material or work of the Consultant pursuant
to this Agreement shall be submitted to City. Any reuse or modification of such documents, reports or
other material or work of the Consultant for purposes other than those intended by the Consultant in its
scope of services shall be at the City's risk and without liability to the Consultant.
B. All written information submitted by the City to the Consultant in connection with the
services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at
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least the same extent as the Consultant safeguards like information relating to its own business. If such
information is publicly available or is already in Consultant's possession or known to it, or is rightfully
obtained by the Consultant from third parties, the Consultant shall bear no responsibility for its disclosure,
inadvertent or otherwise. The Consultant is permitted to disclose any such information to the extent
required by law, subpoena or other court order,
11. Work Performed at the Consultant's Risk. The Consultant shall take all precautions necessary
and shall be responsible for the safety of its employees, agents and sub -consultants in the performance of
the work hereunder, and shall utilize all protection necessary for that purpose. All work shall be done at
the Consultant's own risk, and the Consultant shall be responsible for any loss or damage to materials,
tools, or other articles used or held by the Consultant for use in connection with the work.
12. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or
suits, including reasonable attorneys' fees, to the extent caused by the negligent acts, errors or omissions
of the Consultant in performance of this Agreement, except for injuries or damages caused by the sole
negligence of the City.
This Agreement is Subject to RCW 4.24.115. In the event of liability for damages arising out of bodily
injury to persons or damages to property caused by or resulting from the concurrent negligence of the
Consultant and the City, its officers, officials, employees, agents and Volunteers, the Consultant's liability
hereunder shall be only to the extent of the Consultant's negligence. The provisions of this section shall
survive the expiration or termination of this Agreement.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES
OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE
MUTUALLY NEGOTIATED THIS WAIVER.
13. Insurance. The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise from or in
connection with the performance of the work hereunder by the Consultant, its agents, representatives, or
employees.
A, Minimum Scope of Insurance
Consultant shall obtain insurance of the types described below:
I. Automobile Liability insurance covering all owned, non -owned, hired and leased
vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00
01 or a substitute form providing equivalent liability coverage, If necessary, the
policy shall be endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO occurrence form CG
00 01 or a substitute form providing equivalent liability coverage and shall cover
liability arising from premises, operations, independent contractors and personal
injury and advertising injury. The City shall be named by endorsement as an
City of Port Orchard and Reid Middleton, Inc.
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additional insured under the Consultant's Commercial General Liability insurance
policy with respect to the work performed for the City.
3. Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
4. Professional Liability insurance appropriate to the Consultant's profession.
B. Minimum Amounts of Insurance
Consultant shall maintain the following insurance limits:
1. Automobile Liability insurance with a minimum combined single limit for bodily
injury and property damage of $1,000,000 per accident.
2. Commercial General Liability insurance shall be written with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate.
3. Professional Liability insurance shall be written with limits no less than $1,000,000
per claim and $1,000,000 policy aggregate limit.
4. Employer's Liability each accident $1,000,000, Employer's Liability Disease each
employee $1,000,000, and Employer's Liability Disease — Policy Limit $1,000,000.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Automobile Liability, Professional Liability and Commercial General Liability insurance:
1. The Consultant's insurance coverage shall be primary insurance as respect the City.
Any insurance, self-insurance, or insurance pool coverage maintained by the City
shall be excess of the Consultant's insurance and shall not contribute with it.
2. The Consultant's insurance shall be endorsed to state that coverage shall not be
cancelled by either party, except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City.
3. The City will not waive its right to subrogation against the Consultant. The
Consultant's insurance shall be endorsed acknowledging that the City will not waive
their right to subrogation. The Consultant's insurance shall be endorse to waive the
right of subrogation against the City, or any self-insurance, or insurance pool
coverage maintained by the City.
4. If any coverage is written on a "claims made" basis, then a minimum of a three (3)
year extended reporting period shall be included with the claims made policy, and
proof of this extended reporting period provided to the City.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII.
City of Port Orchard and Reid Middleton, Inc
Public Works Project No. PW2019-004
Professional Service Agreement Contract No. C044-19
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E. Verification of Coverage
Consultant shall furnish the City with original certificates and a copy of the amendatory
endorsements, including but not necessarily limited to the additional insured endorsement,
evidencing the insurance requirements of the Consultant before commencement of the work.
14. Assigning or Subcontracting. Consultant shall not assign, transfer, subcontract or encumber
any rights, duties, or interests accruing from this Agreement without the express prior written consent of
the City, which consent may be withheld in the sole discretion of the City.
15. Notice. Any notices required to be given by the City to Consultant or by Consultant to the City shall
be in writing and delivered to the parties at the following addresses:
Robert Putaansuu
Mayor
216 Prospect Street
Port Orchard, WA 98366
Phone: 360.876.4407
Fax: 360.895.9029
CONSULTANT
Reid Middleton, Inc.
Kenneth D. Andersen, P.E.
728 134t' Street SW, Suite 200
Everett, WA 98204
Phone: (425) 741.3800
16. Resolution of Disputes and Governing Law.
A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions
contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term
or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between
the parties relative to the actual services provided or to the sufficiency of the performance hereunder.
B. If any dispute arises between the City and the Consultant under any of the provisions of
this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the
Consultant does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting
litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington.
C. This Agreement shall be governed by and construed in accordance with the laws of the
State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the
substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable
attorney's fees from the other party.
17. General Provisions.
A. Non -waiver of Breach. The failure of either party to insist upon strict performance of any
of the covenants and agreements contained herein, or to exercise any option herein contained in one or
more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or
options, and the same shall be in full force and effect.
City of Port Orchard and Reid Middleton, Inc.
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B. Modification. No waiver, alteration, modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duty authorized representative of the City
and the Consultant.
C. Severahility. The provisions of this Agreement are declared to be severable. If any
provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of
any other provision.
D. 1_ni n, The written provisions of this Agreement, together with any Exhibits
attached hereto, shall supersede all prior verbal statements of any officer or other representative of the
City, and such statements shall not be effective or be construed as entering into or forming a part of 6r
altering in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement
between the parties with respect to the subject matter hereunder is contained in this Agreement and the
Exhibits attached hereto, which may or may not have been dated prior to the execution of this Agreement.
All of the above documents are hereby made a part of this Agreement and form the Agreement document
as fully as if the same were set forth herein. Should any language in any of the Exhibits to this
Agreement conflict with any language contained in this Agreement, then this Agreement shall prevail.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set
forth above.
CITY OF PORT ORCHARD, CONSULTANT
WASHINGTON'PQR
X.
By
Robert Pu tr �1+fiam�rtsnctM r tnth,�c,r' t
Mayor _ SEA- Sul;q l L • n"19e P/-;n&?q/
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Date: of l �9��k g
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Attest7BMV9
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By:
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BrandyRinears,1C.
City Cleric
APPROVED AS TO FORIM
or. Cates
City Attorney
City of Port Orchard and Reid Middleton. Inc
Public Works Project No. PW2019-004
Professional Service Agreement Contract No. C044-19
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Reididdleton
May 31, 2019
File No. 212019.913.013
Mr. Mark Dorsey, P.E.
Public Works Director/City Engineer
City of Port Orchard
216 Prospect Drive
Port Orchard, WA 98366
Subject: Proposal for Professional Services
City of Port Orchard - Downtown Basin Stormwater Plan Project
Dear Mr. Dorsey:
Thank you for selecting Reid Middleton to provide professional engineering services for
the City of Port Orchard, Downtown Basin Stormwater Plan project. We look forward to
working with you on this project.
A. PROJECT UNDERSTANDING
The City of Port Orchard (City) has received a Washington State Department of
Ecology (DOE) grant to develop the Downtown Basin Stormwater Plan. The
scope of work for this fee proposal will match the scope of work given in the
DOE Agreement No. WQC-2018-PoOrPW-00206 with the City of Port Orchard
and provided in Exhibit B. The basin to be studied extends from Sinclair Inlet
uphill and south to approximately Taylor Street and just east of Cline Avenue on
the west and west of Harrison Avenue on the east. The basin is shown shaded in
yellow on Exhibit C, and for this fee proposal and study is referred to as the
Central Basin. The study is divided into four task as follows:
• Task 1: Project Administration/Management will be primarily the City of
Port Orchard's task to perform.
• Task 2: Data Review, Gap Analysis, Field Investigation will be
performed by Reid Middleton.
• Task 3: Model Development and Application will be performed by
GeoEngineers as a subconsultant to Reid Middleton.
• Task 4: Downtown Basin Stormwater Plan will be performed by Reid
Middleton.
The grant agreement requires that these four tasks are completed for the Central
Basin and are included in this scope of work.
Mr. Mark Dorsey
City of Port Orchard
May 31, 2019
File No. 212019.913.013
Page 2
There are also two basins immediately east and west of the Central Basin referred
to as the East and West Basins. The East and West Basins are delineated by a
blue dashed line, the edges of the Central Basin and the Sinclair Inlet shoreline as
shown on the map in Exhibit C. These basins will be described and briefly
discussed in the Downtown Basin Stormwater Plan. If there is grant budget
remaining, Reid Middleton will perform Task 2, Task 3, and possibly Task 4 for
the East and West Basins. The amount of work for the East and West Basins will
be based on remaining budget after the four tasks are performed for the Central
Basin.
It is our understanding that notice -to -proceed will occur in June 2019, and the
work shall be completed by December 2020.
B. SCOPE OF SERVICES
I . See Exhibit B, DOE Agreement No. WQC-2018-PoOrPW-00206 with the
City of Port Orchard.
2. See Exhibit C, Downtown Stormwater Basin Map.
3. See Exhibit D, GeoEngineers Fee Spreadsheet.
4. See Exhibit E, Reid Middleton Fee Spreadsheet.
C. COMPENSATION
For civil engineering services described in Exhibit B, Reid Middleton
shall be paid on a time -plus -expense basis using the rates indicated in
Exhibit "A," Schedule of Charges Effective July 1, 2019, attached to the
agreement. We estimate the fee for this portion of the services to be
$136,229, as summarized below and in the attached Exhibit E. We will
not exceed this amount without prior approval from the City of Port
Orchard.
Task 2 $ 56,222
Task 3 3,930
Task 4 76,077
Reid Middleton Tasks Total $ 136,229
2. For services described in Exhibit D, GeoEngineers SOW and Fee
Proposal, Reid Middleton shall be paid on a time -plus -expense basis. We
estimate the fee for this portion of the services to be $70,364, as
summarized below:
Reid iddleton
Mr. Mark Dorsey
City of Port Orchard
May 31, 2019
File No. 212019.913.013
Page 3
Task 2
Task 3
Task 4
Subtotal
Reid Middleton Mark -Up (10%)
GeoEngineers Total
Estimated Project Cost:
D. REID MIDDLETON STAFF
$ 640
45,347
17,980
$ 63,967
$ 6,397
$ 70,364
$206,593
Julian Dodge, PE will be Reid Middleton's project manager. However, other
individuals at Reid Middleton will work on aspects of your project as required.
We appreciate the opportunity to submit this proposal. if you have any questions or
comments please call me.
Sincerely,
Reid Middleton, Inc.
Julian L. Dodge, P.E.
Director of Civil Projects
Attachments
kab\H:\21Cp\19\!913\013 City of Port Orchard Downtown Basin Study\Agreement Letter -
19053 l .docx\jld
ReidMiddleton
Reid Middleton, Inc.
Exhibit "A" Schedule of Charges
Effective July 1, 2019 through June 30, 2020
Personnel
Hourly Rate
Principal...................................................................................................................... $ 205.00 - $ 260.00
Principal Engineer/Principal Planner/Principal Surveyor ........................................... $ 205.00 - S 250.00
Senior Engineer/Senior Planner/Senior Surveyor....................................................... $ 180.00 - $ 205.00
Project Engineer/Project Des'ggner/Project Surveyor/Project Planner ......................... $ 140.00 - $ 175.00
Design Engineer/Designer II/Designechnician/Survey Crew Chief!
Technical Writer I I/ Graphic Designer I I................................................................. $ 115.00 - $ 140.00
Designer I/Planner/CAD Technician I I....................................................................... $ 105.00 - $ 125.00
Pri:i! ect Administrator................................................................................................. $ 100.00 - $ 120.00
CA Technician 1/Survey1'echniciani-l'echniciariTechnical Writer I ...................... S 90.00 - $ 110.00
Survey Crew (1 Person/R'I'K/Robotic/Scanning)........................................................ $ 135.00
Survey Crew (2 Person/RTK/Robotic/Scanning) ....................................................... $ 185.00
(
Survey Crew 3 Person/ RTK/Robotic/Scanning).......................................... $ 235.00
Expert Witness/Forensic Engineering ......................... 1.5 times usual hourly rate (4 hour minimum)
Individuals not in the regular employ of Reid Middleton may occasionally be engaged to meet specific
ppro ect requirements. Charges for such personnel will be comparable to charges for regular Reid
Mlleton personnel.
A premium may be charged if project requirements make overtime work necessary.
11. Equipment Rate
Design Software/Computer Aided Drafting............................................................... $ 12.00/hour
Ill. Reimbursable Expenses
Local Mileage - Automobile....................................................................................... $ 0.58/mile
Local Mileage - Survey Truck.................................................................................... S 0.65/mile
Expenses that are directly attributable to the project are invoiced at cost plus 15%. These expenses
include, but are not limited to, subconsultant or subcontractor services, travel and subsistence,
communications, couriers, postage, fees and permits, document reproduction, special instrumentation and
field equipment rental, premiums for additional insurance where required, special supplies, and other costs
directly applicable to the project.
A new schedule ofcharges is issued and becomes effective July I each year. Charges for all work,
including continuing projects initiated in prior years, will be based on the latest schedule of charges.
IV. Client Advances
Unless the parties agree otherwise in writing, charges for the follow!ng items shall be paid by the client
directly, shall not be the responsibility of Reid Middleton, and shall be in addition to any fee stipulated in
the a reement; �Y�
vrnmtfesincluding permit and reiewfeessoilsetinfesand casts; charges for
aeriaphotogrand chargesormonuments.IfReid Middleton determinesin itsdiscetionto
advanceanyoese costsin the interestoftheproject,theamountofthe advance, plusaFftcen percent
admin'strative f, shall be paid by the client upon presentation of an invoice therefore.
H TORMST..XHIBITS\2019-A doux
DEPARTMENT OF
ECOLOGY
State of Washington
Agreement No. WQC-2018-PoOrPW-00206
WATER QUALITY COMBINED FINANCIAL ASSISTANCE AGREEMENT
BETWEEN
THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY
AND
CITY OF PORT ORCHARD PUBLIC WORKS DEPT.
EXHIBIT B
This is a binding Agreement entered into by and between the state of Washington, Department of Ecology,
hereinafter referred to as "ECOLOGY," and City of Port Orchard Public Works Dept., hereinafter referred to as the
"RECIPIENT," to carry out with the provided funds activities described herein.
GENERAL INFORMATION
Project Title:
Total Cost:
Total Eligible Cost:
Ecology Share:
Recipient Share:
The Effective Date of this Agreement is:
The Expiration Date of this Agreement is no later than:
Project Type:
Port Orchard Downtown Basin Stormwater Plan
$216,840.00
$216,840.00
$216,840.00
$0.00
07/01 /2018
06/30/2021
Stormwater Facility
Project Short Description:
This project will develop a Downtown Basin Stormwater Plan for the City of Port Orchard. This project will
provide a roadmap for implementing water quality treatment for total suspended solids (TSS) and will also
reduce flows to Sinclair Inlet by increasing stormwater treatment, infiltration and/or providing stormwater
detention. Additional benefits of this project include modernizing infrastructure and flow control in nearshore
areas.
Project Lone Description:
This project will develop a Downtown Basin Stormwater Plan to improve stormwater quality for Port Orchard's
downtown and shoreline areas. Port Orchard's downtown basins drain approximately 74 acres of existing mixed
development to Sinclair Inlet. The Plan will guide the investment in structural and non-structural best
management practices (BMPs) to improve stormwater water quality draining from Port Orchard's older
developed commercial and residential areas. These areas currently lack any permanent runoff collection,
conveyance, or treatment measures. The Plan will identify prioritized stormwater capital improvement projects
State of Washington Department of Ecology
Agreement No: WQC-20l8-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name City of Port Orchard Public Works Dept
and stormwater-related activities that most efficiently provide flow control within the downtown basin and
improve the long-term water quality of Sinclair Inlet.
The RECIPIENT will inventory stormwater management constraints and opportunities in the basin, analyze
water quality data, use modeling tools to assess current water quality and flows at the downtown outfalls, and
determine the most cost-effective altemative(s) to address the water quality deficiencies. Any essential data gaps
in terms of stormwater infrastructure or water quality will be addressed. Plan sections will include an existing
conditions assessment, plan objectives, basin opportunities and constraints, facility and activity alternatives,
funding alternatives, alternatives evaluation, and plan recommendations and implementation.
Overall Goal:
This project will help protect and restore water quality in Washington state by reducing stormwater impacts
from existing infrastructure and development.
Version 10130/2015
Page 2 of 42
State of Washington Department of Ecology
Agreement No WQC-2018-PoOrPW-00206
Project "fide: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
RECIPIENT INFORMATION
Organization Name: City of Port Orchard Public Works Dept.
Federal Tax ID: 91-6001487
DUNS Number: 081932790
Mailing Address: 216 Prospect Street
Port Orchard, WA 98366
Physical Address: 216 Prospect Street
Port Orchard, Washington 98366
Contacts
Project Manager Zack Holt
Stormwater Program Manager
216 Prospect St.
Port Orchard, Washington 98366
Email: zholt(acityofportorchard.us
Phone: (360) 876-4991
Billing Contact I Heidi Draper
iJ Accounting Assistant III
216 Prospect Street
Port Orchard, Washington 98366
Email: hdraper(a�cityofportorchard.us
Phone: (360) 874-5523
Authorized I Robert B Putaansuu
Signatory Mayor
216 Prospect Street
Port Orchard, Washington 98366
Email: rputaansuu(acityofportorchard.us
Phone: (360) 876-4991
Version 10/30/2015
Page 3 of 42
State of Washington Department of Ecology Page 4 of 42
Agreement No: WQC-201 B-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
ECOLOGY INFORMATION
Mailing Address: Department of Ecology
Water Quality
PO BOX 47600
Olympia, WA 98504-7600
Physical Address: Water Quality
300 Desmond Drive SE
Lacey, WA 98503
Contacts
Denise Di Santo
Project
Manager
3190 - 160th Ave SE
Bellevue, Washington 98008-5452
Email: ddis461@ecy.wa.gov
Phone: (425) 649-7025
Sarah Zehner
Financial
Water Quality Financial Manager
Manager
PO Box 47600
Olympia, Washington 98504-7600
Email: szeh461(a,)ecy.wa.gov
Phone: (360) 407-7196
Amanda Heye
Technical
Advisor
PO Box 47600
Olympia, Washington 98504-7600
Email: ahey461(a,)ecy.wa.gov
Phone: (360) 407-6457
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
AUTHORIZING SIGNATURES
RECIPIENT agrees to furnish the necessary personnel, equipment, materials, services, and otherwise do all things
necessary for or incidental to the performance of work as set forth in this Agreement.
RECIPIENT acknowledges that they had the opportunity to review the entire Agreement, including all the terms and
conditions of this Agreement, Scope of Work, attachments, and incorporated or referenced documents, as well as all
applicable laws, statutes, rules, regulations, and guidelines mentioned in this Agreement. Furthermore, the
RECIPIENT has read, understood, and accepts all requirements contained within this Agreement.
This Agreement contains the entire understanding between the parties, and there are no other understandings or
representations other than as set forth, or incorporated by reference, herein.
No subsequent modifications or amendments to this agreement will 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. ECOLOGY and
RECIPIENT may change their respective staff contacts without the concurrence of either party.
This Agreement shall be subject to the written approval of Ecology's authorized representative and shall not be
binding until so approved.
The signatories to this Agreement represent that they have the authority to execute this Agreement and bind their
respective organizations to this Agreement.
IN WITNESS WHEREOF: the parties hereto, having read this Agreement in its entirety, including all attachments, do
agree in each and every particular and have thus set their hands hereunto.
Washington State
Department of Ecology
By:
Heather R. Bartlett
Water Quality
Program Manager
Template Approved to Form by
Attorney General's Office
Version 10/30/2015
City of Port Orchard Public Works Dept.
Date Robert B Putaansuu
Mayor
Page 5 of 42
Date
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stofmwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Brandy Rinearson
City Clerk
Version 10/30/2015
Page 6 of 42
Date
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
SCOPE OF WORK
Task Number:
Task Title: Project Administration/Management
Task Cost: $9,840.00
Task Description:
A. The RECIPIENT shall carry out all work necessary to meet ECOLOGY grant or loan administration requirements.
Responsibilities include, but are not limited to: maintenance of project records; submittal of requests for
reimbursement and corresponding backup documentation; progress reports; and a recipient closeout report (including
photos).
B. The RECIPIENT shall maintain documentation demonstrating compliance with applicable procurement,
contracting, and interlocal agreement requirements; application for, receipt of, and compliance with all required
permits, licenses, easements, or property rights necessary for the project; and submittal of required performance items.
C. The RECIPIENT shall manage the project. Efforts include, but are not limited to: conducting, coordinating, and
scheduling project activities and assuring quality control. Every effort will be made to maintain effective
communication with the RECIPIENTS designees; ECOLOGY; all affected local, state, or federal jurisdictions; and any
interested individuals or groups. The RECIPIENT shall carry out this project in accordance with any completion dates
outlined in this agreement.
Task Goal Statement:
Properly managed and fully documented project that meets ECOLOGY's grant or loan administrative requirements.
Task Expected Outcome:
* Timely and complete submittal of requests for reimbursement, quarterly progress reports, and RECIPIENT closeout
report.
* Properly maintained project documentation
Recipient'I'ask Coordinator: Zack Holt
Project Administration/Management
Deliverables
Page 7 of 42
Number
Description
Due Date
1.1
Quarterly Progress Reports
1.2
Recipient Closeout Report
t 3
Project Outcome Summary Report
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stonnwaler Plan
Recipient Namc: City of Port Orchard Public Works Dept
SCOPE OF WORK
Task Number:
Task Cost: $36,500.00
Task Title: Data Review, Gap Analysis, Field Investigation
Task Description:
The RECIPIENT shall ensure the following items are completed and provide the associated deliverables to
ECOLOGY. The RECIPIENT must approve all materials prior to submitting them to ECOLOGY for acceptance.
A. The RECIPIENT will complete a data and information review and gap analysis.
B. The RECIPIENT will complete supportive field investigation as determined necessary from the gap analysis to
complete the data gap field inventory.
Task Goal Statement:
The RECIPIENT will complete all data review and data gap analysis and supporting field investigation tasks and
respond to ECOLOGY comments in a timely manner. The RECIPIENT will compile existing data and fill data gaps
needed to develop the analytical tools and models (GIS, water quality, and hydrologic/hydraulic) that will be used
during alternative development and assessment work completed under subsequent tasks.
Task Expected Outcome:
The project will complete a preliminary characterization of the existing stormwater infrastructure and identify
opportunities/constraints for stormwater activities and projects, fill key data gaps regarding the City's existing
stormwater system infrastructure, and ensure high quality is data used in the water quality and hydraulic models being
developed.
Recipient Task Coordinator: Zack Holt
Data Review, Gap Analysis, Field Investigation
Deliverables
Page 8 of 42
Number
Description
Due Date
2.1
Draft of Existing Conditions Technical Memorandum. Upload to EAGL
and notify ECOLOGY when upload is complete.
2.2
Responses to Existing Conditions Technical Memorandum ECOLOGY
comments. Upload to EAGL and notify ECOLOGY when upload is
complete.
2.3
Data Gap Field Inventory Map or Informational Tool in GIS format.
Upload to EAGL and notify ECOLOGY when upload is complete.
24
Responses to Data Gap Field Inventory ECOLOGY comments. Upload to
EAGL and notify ECOLOGY when upload is complete.
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-20 I 8-PoOrPW-00206
Project "Title: Port Orchard Downtown Basin Stormwatcr Plan
Recipient Name: City of Port Orchard Public Works Dept
SCOPE OF WORK
Task Number: 3 Task Cost: S42,000.00
Task Title: Model Development and Application
Task Description. -
A. The RECIPIENT will provide hydraulic model development and application for this project.
B. The RECIPIENT will provide water quality model development and application for this project.
C. The RECIPIENT will submit a QAPP to ECOLOGY for review and acceptance prior to modeling. The QAPP must
include how the RECIPIENT will develop and apply the models to quantify the magnitude of flow and pollutant
loading.
D. Upon completion of hydraulic and water quality modeling runs, the RECIPIENT will provide to ECOLOGY:
1. GIS compatible project area in Shapefile, Geodatabase file, or ECOLOGY -Approved Equivalent. The project area
will include features to show treatment facilities and contributing areas.
2. A technical memorandum to accompany the GIS file with explanation of the completed analysis.
Task Goal Statement:
The RECIPIENT will develop water quality and hydraulic models and complete model runs to quantify the magnitude
of pollutant loading and flows/water surface elevations at points of interest in the downtown basin. The RECIPIENT
will communicate with ECOLOGY in a timely fashion and provide ECOLOGY with all requested project
documentation.
"mask Expected Outcome:
The project will develop and use water quality and hydraulic models to determine the most effective infrastructure
investments to improve water quality and alleviate localized flooding through flow control in the downtown
stormwater basin. The model will be developed and used in accordance with the completed QAPP and outlined
methodology.
Version 10130/2015
Page 9 of42
State of Washington Department of Ecology
Agreement No: WQC-201 B-PoOrPW-00206
Project Title. Port Orchard Downtown Basin Stormwater Plan
Recipient Name. City of Port Orchard Public Works Dept
Recipient Task Coordinator: Zack Holt
Model Development and Application
Deliverables
Page 10 of 42
Number
Description
Due Date
3 1
Modeling Quality Assurance Plan. Submit to ECOLOGY for review and
acceptance. Upload to EAGL and notify ECOLOGY when upload is
complete.
3.2
Responses to Modeling Quality Assurance Plan ECOLOGY comments.
Upload to EAGL and noti ECOLOGY when upload is complete.
33
Hydraulic Model (SWMM) and technical memorandum. Upload to
EAGL and noti ECOLOGY when upload is complete.
34
Responses to Hydraulic Model (SWMM) and technical memorandum.
ECOLOGY comments. Upload to EAGL and notify ECOLOGY when
upload is complete.
35
Water quality model (spreadsheet) and technical memorandum. Upload
to EAGL and notify ECOLOGY when upload is complete.
3.6
Responses to water quality model and technical memorandum
ECOLOGY comments. Upload to EAGL and notify ECOLOGY when
upload is complete.
3.7
Project Area Shapefile, Geodatabase file, or ECOLOGY -approved
Equivalent. The project area will include features for treatment facilities
and contributing areas. Upload to EAGL and notify ECOLOGY when
upload is complete.
Version 10130/2015
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name City of Port Orchard Public Works Dept
SCOPE OF WORK
Task Number: 4 Task Cost: $128,500.00
Task Title: Downtown Basin Stormwater Plan
Task Description:
A. The RECIPIENT will complete the draft and final Downtown Basin Stormwater Plan. At a minimum the plan will
include the following elements or their equivalent:
I. Executive Summary
2. IntroductionBackground
3. Existing Conditions Assessment
4. Technical Memorandum for model development
5. Stormwater Management Options (SMO) List and Metrics Matrix
6. Description of Stakeholder Engagement
7. Final Priority SMO List
8. Schedule for Implementation
9. Estimation of Yearly Budget Needs and Identification of Funding Sources
10. Description of Adaptive Management and Plan Update Process
B. Present Plan to appropriate decision makers and stakeholders.
Task Goal Statement:
The RECIPIENT will completion of the Downtown Basin Stormwater Plan in accordance with ECOLOGY -accepted
plans and specifications.
Task Expected Outcome:
The project will provide a completed Downtown Basin Stormwater Plan that will provide a roadmap for implementing
water quality BMPs and activities to improve stormwater quality entering Sinclair Inlet and water quality benefits
including flow control and reductions in total suspended solids (TSS).
Version 10/30/2015
Page 1 I of 42
State of Washington Department of Ecology
Agreement No: WQC-201 9-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Rccipient "Task Coordinator; Zack Holt
Downtown Basin Stormwater Plan
Deliverables
Page 12 of42
Number
Description
Due Date
4.1
Draft Downtown Basin Stormwater Plan. Upload to EAGL and notify
ECOLOGY when upload is complete.
4.2
Responses to Draft Downtown Basin Stormwater Plan ECOLOGY
comments. Upload to EAGL and notify ECOLOGY when upload is
complete.
43
Final Downtown Basin Stormwater Plan uploaded to EAGL. Upload to
EAGL and notify ECOLOGY when upload is complete.
4.4
Responses to Final Downtown Basin Stormwater Plan ECOLOGY
comments. Upload to EAGL and notify ECOLOGY when upload is
complete.
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
BUDGET
Funding Distribution EG190320
]VOTE: The above funding distribution number is used to identify this specific agreement and budget on payment
remittances and may be referenced on other communications from ECOLOGY. Your agreement may have multiple
funding distribution numbers to identify each budget.
Funding Title: SFAP Green Retrofit Incentive Funding Type: Grant
Funding Effective Date: 07/01/2018 Funding Expiration Date: 06/30/2021
Funding Source:
Title: SFAP-SFY 18
Type: State
Funding Source %: 100%
Description: Environmental Legacy Stewardship Account (ELSA) - State
Approved Indirect Costs Rate: Approved State Indirect Rate: 0%
Recipient Match %: 0%
InKind Interlocal Allowed: No
InKind Other Allowed: No
Is this Funding Distribution used to match a federal grant? No
SFAP Green Retrofit Incentive
Task Total
Project Administration/Management
$ 9,840.00
Data Review, Gap Analysis, Field Investigation
$ 36,500.00
Model Development and Application
$ 42,000.00
Downtown Basin Stormwater Plan
$ 128,500.00
Total: $ 216,840.00
Version 10/30/2015
Page 13 of42
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title' Port Orchard Downtown Basin Stormwater Plan
Recipient Name City of Port Orchard Public Works Dept
Fundine Distribution Summary
Recipient / Ecology Share
Page 14of42
Funding Distribution Name
Recipient Match %
Recipient Share
Ecology Share
Total
SFAP Green Retrofit Incentive
0.00 %
$ 0.00
$ 216,840.00
$ 216,840.00
Total
$ 0.00
$ 216,840.00
$ 216,840.00
AGREEMENT SPECIFIC TERMS AND CONDITIONS
N/A
SPECIAL TERMS AND CONDITIONS
SECTION l: DEFINITIONS
Unless otherwise provided, the following terms will have the respective meanings for all purposes of this agreement:
"Administration Charge" means a charge established in accordance with Chapter 90.50A RCW and Chapter 173-98
WAC, to be used to pay Ecology's cost to administer the State Revolving Fund by placing a percentage of the interest
earned in an Administrative Charge Account.
"Administrative Requirements" means.the effective edition of ECOLOGY'S Administrative Requirements for
Recipients of Ecology Grants and Loans at the signing of this agreement.
"Annual Debt Service" for any calendar year means for any applicable bonds or loans including the loan, all interest
plus all principal due on such bonds or loans in such year.
"Average Annual Debt Service" means, at the time of calculation, the sum of the Annual Debt Service for the
remaining years of the loan to the last scheduled maturity of the loan divided by the number of those years.
"Acquisition" means the purchase or receipt of a donation of fee or less than fee interests in real property. These
interests include, but are not limited to, conservation easements, access/trail easements, covenants, water rights, leases,
and mineral rights.
"Centennial Clean Water Program" means the state program funded from various state sources.
"Contract Documents" means the contract between the RECIPIENT and the construction contractor for construction of
the project.
"Cost Effective Analysis" means a comparison of the relative cost -efficiencies of two or more potential ways of
solving a water quality problem as described in Chapter 173-98-730 WAC.
"Defease" or "Defeasance" means the setting aside in escrow or other special fund or account of sufficient investments
and money dedicated to pay all principal of and interest on all or a portion of an obligation as it comes due.
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-2018-POOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
"Effective Date" means the earliest date on which eligible costs may be incurred.
"Effective Interest Rate" means the total interest rate established by Ecology that includes the Administrative Charge.
"Estimated Loan Amount" means the initial amount of funds loaned to the RECIPIENT.
"Estimated Loan Repayment Schedule" means the schedule of loan repayments over the term of the loan based on the
Estimated Loan Amount.
"Equivalency" means projects designated by ECOLOGY to meet additional federal requirements.
"Expiration Date" means the latest date on which eligible costs may be incurred.
"Final Accrued Interest" means the interest accrued beginning with the first disbursement of funds to the RECIPIENT
through such time as the loan is officially closed out and a final loan repayment schedule is issued.
"Final Loan Amount" means all principal of and interest on the loan from the Project Start Date through the Project
Completion Date.
"Final Loan Repayment Schedule" means the schedule of loan repayments over the term of the loan based on the Final
Loan Amount.
"Forgivable Principal" means the portion of a loan that is not required to be paid back by the borrower.
"General Obligation Debt" means an obligation of the RECIPIENT secured by annual ad valorem taxes levied by the
RECIPIENT and by the full faith, credit, and resources of the RECIPIENT.
"General Obligation Payable from Special Assessments Debt" means an obligation of the RECIPIENT secured by a
valid general obligation of the Recipient payable from special assessments to be imposed within the constitutional and
statutory tax limitations provided by law without a vote of the electors of the RECIPIENT on all of the taxable
property within the boundaries of the RECIPIENT.
"Gross Revenue" means all of the earnings and revenues received by the RECIPIENT from the maintenance and
operation of the Utility and all earnings from the investment of money on deposit in the Loan Fund, except (i) Utility
Local. Improvement Districts (ULID) Assessments, (ii) government grants, (iii) RECIPIENT taxes, (iv) principal
proceeds of bonds and other obligations, or (v) earnings or proceeds (A) from any investments in a trust, Defeasance,
or escrow fund created to Defease or refund Utility obligations or (13) in an obligation redemption fund or account
other than the Loan Fund until commingled with other earnings and revenues of the Utility or (C) held in a special
account for the purpose of paying a rebate to the United States Government under the Internal Revenue Code.
"Guidelines" means the ECOLOGY's Funding Guidelines that that correlate to the State Fiscal Year in which the
project is funded.
"Initiation of Operation Date" means the actual date the Water Pollution Control Facility financed with proceeds of the
loan begins to operate for its intended purpose.
Version 10/3012015
Page 15 of42
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
"Loan" means the Washington State Water Pollution Control Revolving Fund Loan or Centennial Clean Water Fund
(Centennial) Loan made pursuant to this loan agreement.
"Loan Amount" means either an Estimated Loan Amount or a Final Loan Amount, as applicable.
"Loan Fund" means the special fund created by the RECIPIENT for the repayment of the principal of and interest on
the loan.
"Loan Security" means the mechanism by which the RECIPIENT pledges to repay the loan.
"Loan Term" means the repayment period of the loan.
"Maintenance and Operation Expense" means all reasonable expenses incurred by the RECIPIENT in causing the
Utility to be operated and maintained in good repair, working order, and condition including payments to other parties,
but will not include any depreciation or RECIPIENT levied taxes or payments to the RECIPIENT in lieu of taxes.
"Net Revenue" means the Gross Revenue less the Maintenance and Operation Expense.
"Original Engineer's Estimate" means the engineer's estimate of construction costs included with bid documents.
"Principal and Interest Account" means, for a loan that constitutes Revenue -Secured Debt, the account created in the
loan fund to be first used to repay the principal of and interest on the loan.
"Project" means the project described in this agreement.
"Project Completion Date" means the date specified in the agreement on which the Scope of Work will be fully
completed. This term is only used in loan agreements.
"Project Schedule" means that schedule for the project specified in the agreement.
"Revenue -Secured Debt" means an obligation of the RECIPIENT secured by a pledge of the revenue of a utility and
one not a general obligation of the RECIPIENT.
"Reserve Account" means, for a loan that constitutes a Revenue Secured Debt and if specifically identified as a term
and condition of the funding agreement, the account of that name created in the loan fund to secure the payment of the
principal of and interest on the loan.
"Risk -Based Determination" means an approach to sub -recipient monitoring and oversight based on risk factors
associated to a RECIPIENT or project.
"Scope of Work" means the tasks and activities constituting the project.
"Section 319" means the section of the Clean Water Act that provides funding to address nonpoint sources of water
pollution.
"Senior Lien Obligations" means all revenue bonds and other obligations of the RECIPIENT outstanding on the date
of execution of this loan agreement (or subsequently issued on a parity therewith, including refunding obligations) or
Version 10/30/2015
Page 16 of 42
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title, Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
issued after the date of execution of this loan agreement having a claim or lien on the Gross Revenue of the Utility
prior and superior to the claim or lien of the loan, subject only to Maintenance and Operation Expense.
"State Water Pollution Control Revolving Fund (Revolving Fund)" means the water pollution control revolving fund
established by Chapter 90.50A.020 RCW.
"Termination Date" means the effective date of ECOLOGY's termination of the agreement.
"Termination Payment Date" means the date on which the RECIPIENT is required to repay to ECOLOGY any
outstanding balance of the loan and all accrued interest.
"Total Eligible Project Cost" means the sum of all costs associated with a water quality project that have been
determined to be eligible for ECOLOGY grant or loan funding, including any required recipient match.
"Total Project Cost" means the sum of all costs associated with a water quality project, including costs that are not
eligible for ECOLOGY grant or loan funding.
"ULID" means any utility local improvement district of the RECIPIENT created for the acquisition or construction of
additions to and extensions and betterments of the Utility.
"ULID Assessments" means all assessments levied and collected in any ULID. Such assessments are pledged to be
paid into the Loan Fund (less any prepaid assessments permitted by law to be paid into a construction fund or
account). ULID Assessments will include principal installments and any interest or penalties which may be due.
"Utility" means the sewer system, stormwater system, or the combined water and sewer system of the RECIPIENT,
the Net Revenue of which is pledged to pay and secure the loan.
SECTION 2: THE FOLLOWING CONDITIONS APPLY TO ALL RECIPIENTS OF WATER QUALITY
COMBINED FINANCIAL ASSISTANCE FUNDING.
The Water Quality Financial Assistance Funding Guidelines are included in this agreement by reference and are
available on ECOLOGY's Water Quality Program website.
A. Architectural and Engineering Services: The RECIPIENT certifies by signing this agreement that the requirements
of Chapter 39.80 RCW, "Contracts for Architectural and Engineering Services," have been, or shall be, met in
procuring qualified architectural/engineering services. The RECIPIENT shall identify and separate eligible and
ineligible costs in the final architectural/engineering services contract and submit a copy of the contract to ECOLOGY.
B. Acquisition: The following provisions shall be in force only if the project described in this agreement is an
acquisition project:
a. Evidence of Land Value and Title. The RECIPIENT shall submit documentation of the cost of the property rights
and the type of ownership interest that has been acquired.
b. Legal Description of Real Property Rights Acquired. The legal description of the real property rights purchased
Version 10/30/2015
Page 17 of 42
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
with funding assistance provided through this agreement (and protected by a recorded conveyance of rights to the State
of Washington) shall be incorporated into the agreement before final payment.
c. Conveyance of Rights to the State of Washington. Upon purchase of real property rights (both fee simple and lesser
interests), the RECIPIENT shall execute the document necessary to convey certain rights and responsibilities to
ECOLOGY, on behalf of the State of Washington. The documents required will depend on the project type, the real
property rights being acquired, and whether or not those rights are being acquired in perpetuity (see options below).
The RECIPIENT shall use language provided by ECOLOGY, to record the executed document in the County where
the real property lies, and to provide a copy of the recorded document to ECOLOGY.
Documentation Options:
1. Deed of Right. The Deed of Right conveys to the people of the state of Washington the right to preserve, protect,
and/or use the property for public purposes consistent with the fund source. RECIPIENTS shall use this document
when acquiring real property rights that include the underlying land. This document may also be applicable for those
easements where the RECIPIENT has acquired a perpetual easement for public purposes. The RECIPIENT must
obtain ECOLOGY approval on the draft language prior to executing the deed of right.
2. Assignment of Rights. The Assignment of Rights document transfers certain rights such as access and enforcement
to ECOLOGY. The RECIPIENT shall use this document when an easement or lease is being acquired for water
quality and habitat conservation. The Assignment of Rights requires the signature of the underlying landowner and
must be incorporated by reference in the easement document.
3. Easements and Leases. The RECIPIENT may incorporate required language from the Deed of Right or Assignment
of Rights directly into the easement or lease document, thereby eliminating the requirement for a separate document.
Language will depend on the situation; therefore, the RECIPIENT must obtain ECOLOGY approval on the draft
language prior to executing the easement or lease.
d. Real Property Acquisition and Relocation Assistance.
1. Federal Acquisition Policies. See Section 4 of this agreement for requirements specific to Section 319 and SRF
funded projects.
2. State Acquisition Policies. When state funds are part of this agreement, the RECIPIENT agrees to comply with the
terms and conditions of the Uniform Relocation Assistance and Real Property Acquisition Policy of the State of
Washington, Chapter 8.26 RCW, and 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
RECIPIENT agrees to provide any housing and relocation assistance required.
e. Hazardous Substances.
1. Certification. The RECIPIENT shall inspect, investigate, and conduct an environmental audit of the proposed
acquisition site for the presence of hazardous substances, as defined in RCW 70.105D.020(10), and certify:
i. No hazardous substances were found on the site, or
Version 10/30/2015
Page 18o1742
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name City of Port Orchard Public Works Dept
ii. Any hazardous substances found have been treated and/or disposed of in compliance with applicable state and
federal laws, and the site is deemed "clean."
2. Responsibility. Nothing in this provision alters the RECIPIENT's duties and liabilities regarding hazardous
substances as set forth in RCW 70.105D.
3. Hold Harmless. The RECIPIENT will defend, protect and hold harmless ECOLOGY and any and all of its
employees and/or agents, from and against any and all liability, cost (including but not limited to all costs of defense
and attorneys' fees) and any and all loss of any nature from any and all claims or suits resulting from the presence of,
or the release or threatened release of, hazardous substances on the property the RECIPIENT is acquiring.
f. Restriction On Conversion Of Real Property And/Or Facilities To Other Uses
The RECIPIENT shall not at any time convert any real property (including any interest therein) or facility acquired,
developed, maintained, renovated, and/or restored pursuant to this agreement to uses other than those purposes for
which funds were approved without prior approval of ECOLOGY. For acquisition projects that are term limited, such
as one involving a lease or a term -limited restoration, renovation or development project or easement, this restriction
on conversion shall apply only for the length of the term, unless otherwise provided in written documents or required
by applicable state or federal law. In such case, the restriction applies to such projects for the length of the term
specified by the lease, easement, deed, or landowner agreement.
C. Best Management Practices (BMP) Implementation: If the RECIPIENT installs BMPs that are not approved by
ECOLOGY prior to installation, the RECIPIENT assumes the risk that part or all of the reimbursement for that
activity may be delayed or ineligible. For more details regarding BMP Implementation, please reference the Water
Quality Financial Assistance Funding Guidelines available on ECOLOGY's Water Quality Program funding website.
D. Electronic Fund Transfers: The RECIPIENT must register as a statewide vendor in order to receive payment
reimbursement. Washington State's Department of Enterprise Services (DES) issues all payments. DES maintains a
central vendor file for Washington State agency use to process vendor payments. The RECIPIENT can complete the
registration process online at:
http://des.wa.gov/services/ContractingPurchasing/BusinessNendorPay/Pages/default.aspx. This registration process
allows the RECIPIENT to sign up for direct deposit payments, also known as electronic fund transfers (EFT). If the
RECIPIENT has questions about the vendor registration process or setting up direct deposit payments contact DES
Payee Help Desk at (360) 407-8180or payeehelpdesk@awatech.wa.gov.
E. Equipment Purchase: Equipment purchases over $5,000 and not included in the scope of work or the Ecology
approved construction plans and specifications, must be pre -approved by ECOLOGY's project manager before
purchase. All equipment purchases over $5,000 and not included in a contract for work being completed on the
funded project, must also be reported on the Equipment Purchase Report in EAGL.
F. Funding Recognition: The RECIPIENT must inform the public about ECOLOGY or any EPA (see Section 3.13 for
Section 319 funded or Section 5.E for SRF funded projects) funding participation in this project through the use of
project signs, acknowledgement in published materials, reports, the news media, websites, or other public
announcements. Projects addressing site -specific locations must utilize appropriately sized and weather -resistant
signs. Sign logos are available from ECOLOGY's Financial Manager upon request.
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name City of Port Orchard Public Works Dept
G. Growth Management Planning: The RECIPIENT certifies by signing this agreement that it is in compliance with
the requirements of Chapter 36.70A RCW, "Growth Management Planning by Selected Counties and Cities." If the
status of compliance changes, either through RECIPIENT or legislative action, the RECIPIENT shall notify
ECOLOGY in writing of this change within 30 days.
H. Interlocal: The RECIPIENT certifies by signing this agreement that all negotiated interlocal agreements necessary
for the project are, or shall be, consistent with the terms of this agreement and Chapter 39.34 RCW, "Interlocal
Cooperation Act." The RECIPIENT shall submit a copy of each interlocal agreement necessary for the project to
ECOLOGY upon request.
I. Lobbying and Litigation: Costs incurred for the purposes of lobbying or litigation are not eligible for funding under
this agreement.
J. Post Project Assessment Survey: The RECIPIENT agrees to participate in a brief survey regarding the key project
results or water quality project outcomes and the status of long-term environmental results or goals from the project
approximately three years after project completion. A representative from ECOLOGY's Water Quality Program may
contact the RECIPIENT to request this data. ECOLOGY may also conduct site interviews and inspections, and may
otherwise evaluate the project, as part of this assessment.
K. Project Status Evaluation: ECOLOGY may evaluate the status of this project 18 months from the effective date of
this agreement. ECOLOGY's Project Manager and Financial Manager will meet with the RECIPIENT to review
spending trends, completion of outcome measures, and overall project administration and performance. If the
RECIPIENT fails to make satisfactory progress toward achieving project outcomes, ECOLOGY may change the scope
of work, reduce grant funds, or increase oversight measures.
L. Technical Assistance: Technical assistance for agriculture activities provided under the terms of this agreement
shall be consistent with the current U.S. Natural Resource Conservation Service ("NRCS") Field Office Technical
Guide for Washington State and specific requirements outlined in the Water Quality Funding Guidelines. Technical
assistance, proposed practices, or project designs that do not meet these standards may be eligible if approved in
writing by ECOLOGY.
SECTION 3: THE FOLLOWING CONDITIONS APPLY TO SECTION 319 AND CENTENNIAL CLEAN
WATER FUNDED PROJECTS BEING USED TO MATCH SECTION 319 FUNDS.
The RECIPIENT must submit the following documents to ECOLOGY before this agreement is signed by ECOLOGY:
1. Federal Funding Accountability and Transparency Act (FFATA) Form, available on the Water Quality Program
website.
2. "Section 319 Initial Data Reporting" form in EAGL.
A. Data Reporting: The RECIPIENT must complete the "Section 319 Initial Data Reporting" form in EAGL before
this agreement can be signed by Ecology. This form is used to gather general information about the project for EPA.
B. Funding Recognition and Outreach: In addition to Section 2.F of these Terms and Conditions, the RECIPIENT
shall provide signage that informs the public that the project is funded by EPA. The signage shall contain the EPA
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Titic. Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
logo and follow usage requirements available at http://www2.epa.gov/stylebook/using-epa-seal-and-logo. To obtain
the appropriate EPA logo or seal graphic file, the RECIPIENT may sent a request to their Ecology Financial Manager.
To increase public awareness of projects serving communities where English is not the predominant language,
RECIPIENTS are encouraged to provide their outreach strategies communication in non-English languages.
Translation costs for this purpose are allowable, provided the costs are reasonable.
The RECIPIENT shall use the following paragraph in all reports, documents, and signage developed under this
agreement:
"This project has been funded wholly or in part by the United States Environmental Protection Agency under an
assistance agreement to the Washington State Department of Ecology. The contents of this document do not
necessarily reflect the views and policies of the Environmental Protection Agency, nor does the mention of trade
names or commercial products constitute endorsement or recommendation for use."
C. Load Reduction Reporting: The RECIPIENT shall complete the "Section 319 Annual load Reduction Reporting"
form in EAGL by January 15 of each year and at project close-out. ECOLOGY may hold reimbursements until the
RECIPIENT has completed the form. This form is used to gather information on best management practices (BMPs)
installed and associated pollutant load reductions that were funded as a part of this project.
D. Time Extension: The RECIPIENT may request a one-time extension for up to 12 months. However, the time
extension cannot exceed the time limitation established in EPA's assistance agreement. In the event a time extension
is requested and approved by ECOLOGY, the RECIPIENT must complete all eligible work performed under this
agreement by the expiration date.
SECTION 4: THE FOLLOWING CONDITIONS APPLY TO SECTION 319 AND STATE REVOLVING FUND
(SRF) LOAN FUNDED PROJECTS ONLY.
A. Accounting Standards: The RECIPIENT shall maintain accurate records and accounts for the project (PROJECT
Records) in accordance with Generally Accepted Accounting Principles (GAAP) as issued by the Governmental
Accounting Standards Board (GASB), including standards related to the reporting of infrastructure assets or in
accordance with the standards in Chapter 43.09.200 RCW "Local Government Accounting — Uniform System of
Accounting".
B. Acquisitions: Section 319 and SRF Equivalency project RECIPIENTS shall 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.
C. Audit Requirements: In accordance with 2 CFR 200.501(a), the RECIPIENT agrees to obtain a single audit from
an independent auditor, if their organization expends $750,000 or more in total Federal funds in their fiscal year. The
RECIPIENT must submit the form SF -SAC and a Single Audit Report Package within 9 months of the end of the
fiscal year or 30 days after receiving the report from an independent auditor. The SF -SAC and a Single Audit Report
Package MUST be submitted using the Federal Audit Clearinghouse's Internet Data Entry System available at:
https://harvester.census.gov/fac/collect/ddeindex.htmi. For complete information on how to accomplish the single
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project "title: Port Orchard Downtown Basin Stormwater Plan
Recipicnt Name: City of Port Orchard Public Works Dcpt
audit submission, go to the Federal Audit Clearinghouse Web site: http://harvester.census.gov/fac/.
D. Archaeological Resources and Historic Properties (Section 106): The RECIPIENT shall comply with the additional
requirements under section 106 of the National Historic Preservation Act (NHPA, 36 CFR 800).
E. Data Universal Numbering System (DUNS) and Central Contractor Registration (CCR) Requirements:
RECIPIENTs shall have a DUNS number. Unless exempted from this requirement under 2 CFR 25.110, the
RECIPIENT must ensure that their organization's information in the System for Award Management (SAM),
https://www.sam.gov, is kept current through project closeout. This requires that the RECIPIENT reviews and updates
the information at least annually after the initial registration, and more frequently if information changes.
F. Disadvantaged Business Enterprise (DBE): General Compliance, 40 CFR, Part 33. The RECIPIENT agrees to
comply with the requirements of the Environmental Protection Agency's Program for Utilization of Small, Minority,
and Women's Business Enterprises (MBE/WBE) 40CFR, Part 33 in procurement under this agreement.
Six Good Faith Efforts, 40 CFR, Part 33, Subpart C. The RECIPIENT agrees to make the following good faith efforts
whenever procuring construction, equipment, services, and supplies under this agreement. Records documenting
compliance with the following six good faith efforts shall be retained:
1) Ensure Disadvantaged Business Enterprises are made aware of contracting opportunities to the fullest extent
practicable through outreach and recruitment activities. For Indian Tribal, State and Local and Government
RECIPIENTs, this shall include placing Disadvantaged Business Enterprises on solicitation lists and soliciting them
whenever they are potential sources.
2) Make information on forthcoming opportunities available to Disadvantaged Business Enterprises and arrange time
frames for contracts and establish delivery schedules, where the requirements permit, in a way that encourages and
facilitates participation by Disadvantaged Business Enterprises in the competitive process. This includes, whenever
possible, posting solicitations for bids or proposals for a minimum of thirty (30) calendar days before the bid or
proposal closing date.
3) Consider, in the contracting process, whether firms competing for large contracts could subcontract with
Disadvantaged Business Enterprises. For Indian Tribal, State, and Local Government RECIPIENTS, this shall include
dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum
participation by Disadvantaged Business Enterprises in the competitive process.
4) Encourage contracting with a consortium of Disadvantaged Business Enterprises when a contract is too large for
one of these firms to handle individually.
5) Use services and assistance of the Small Business Administration and the Minority Business Development Agency
of the Department of Commerce.
6) If the prime contractor awards subcontracts, require the prime contractor to take the five good faith efforts steps in
paragraphs 1 through 5 above.
The RECIPIENT agrees to submit ECOLOGY'S Contractor Participation Report Form D with each payment request.
Contract Administration Provisions, 40 CFR, Section 33.302. The RECIPIENT agrees to comply with the contract
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
administration provisions of 40 CFR, Section 33.302.
Non-discrimination Provision. The RECIPIENT shall not discriminate on the basis of race, color, national origin or
sex in the performance of this agreement. The RECIPIENT shall carry out applicable requirements of 40 CFR Part 33
in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the
RECIPIENT to carry out these requirements is a material breach of this agreement which may result in the termination
of this contract or other legally available remedies.
This does not preclude the RECIPIENT from enacting broader nondiscrimination protections.
The RECIPIENT shall comply with all federal and state nondiscrimination laws, including but not limited to, Title VI
and VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education
Amendments of 1972, the Age Discrimination Act of 1975, and Chapter 49.60 RCW, Washington's Law Against
Discrimination, and 42 U.S.C. 12101 et seq, the Americans with Disabilities Act (ADA).
In the event of the RECIPIENT's noncompliance or refusal to comply with any applicable nondiscrimination law,
regulation, or policy, this agreement may be rescinded, canceled, or terminated in whole or in part and the
RECIPIENT may be declared ineligible for further funding from ECOLOGY. The RECIPIENT shall, however, be
given a reasonable time in which to cure this noncompliance.
The RECIPIENT shall include the following terms and conditions in contracts with all contractors, subcontractors,
engineers, vendors, and any other entity for work or services pertaining to this agreement.
"The Contractor will not discriminate on the basis of race, color, national origin or sex in the performance of this
Contract. The Contractor will carry out applicable requirements of 40 CFR Part 33 in the award and administration of
contracts awarded under Environmental Protection Agency financial agreements. Failure by the Contractor to carry out
these requirements is a material breach of this Contract which may result in termination of this Contract or other
legally available remedies."
Bidder List, 40 CFR, Section 33.501(b) and (c). The RECIPIENT agrees to create and maintain a bidders list. The
bidders list shall include the following information for all firms that bid or quote on prime contracts, or bid or quote
subcontracts, including both MBE/WBEs and non-MBE/WBEs.
1. Entity's name with point of contact
2. Entity's mailing address, telephone number, and e-mail address
3. The procurement on which the entity bid or quoted, and when
4. Entity's status as an MBE/WBE or non-MBE/WBE
G. Electronic and information Technology (EIT) Accessibility: RECIPIENTS shall ensure that loan funds provided
under this agreement for costs in the development or purchase of FIT systems or products provide individuals with
disabilities reasonable accommodations and an equal and effective opportunity to benefit from or participate in a
program, including those offered through electronic and information technology as per Section 504 of the
Rehabilitation Act, codified in 40 CFR Part 7. Systems or products funded under this agreement must be designed to
meet the diverse needs of users without barriers or diminished function or quality. Systems shall include usability
features or functions that accommodate the needs of persons with disabilities, including those who use assistive
technology.
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State of Washington Department of Ecology
Agreement No: WQC-201 8- PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name. City of Port Orchard Public Works Dept
H. Hotel -Motel Fire Safety Act: The RECIPIENT shall ensure that all space for conferences, meetings, conventions or
training seminars funded in whole or in part with federal funds complies with the protection and control guidelines of
the Hotel and Motel Fire Safety Act (15 USC 2225a, PL 101-391, as amended). Recipients may search the
Hotel -Motel National Master List at http://www.usfa.dhs.gov/applications/hotel/ to see if a property is in compliance,
or to find other information about the Act. Pursuant to 15 USC 2225a.
1. Trafficking In Persons: The RECIPIENT and RECIPIENT employees that are private entities shall not engage in
forms of trafficking in persons during the period of time this agreement is effective. This includes, but is not limited
to, the procurement of a commercial sex act or forced labor. The RECIPIENT shall notify ECOLOGY immediately of
any information received from any source alleging a violation under this provision.
SECTION 5: THE FOLLOWING CONDITIONS APPLY TO STATE REVOLVING FUND (SRF) LOAN FUNDED
PROJECTS ONLY.
The RECIPIENT must submit the following documents/forms to ECOLOGY before this agreement is signed by
ECOLOGY:
1. Financial Capability Assessment Documentation
2.Opinion of RECIPIENT's Legal Council
3. Authorizing Ordinance or Resolution
4. Federal Funding Accountability and Transparency Act (FFATA) Form
5. CWSRF Federal Reporting Information form available in EAGL
6. Fiscal Sustainability Plan Certification Form (only required if the project includes construction of a wastewater or
stormwater facility construction)
7. Cost and Effectiveness Analysis Certification Form
A. Alteration and Eligibility of Project: During the term of this agreement, the RECIPIENT (1) shall not materially
alter the design or structural character of the project without the prior written approval of ECOLOGY and (2) shall
take no action which would adversely affect the eligibility of the project as defined by applicable funding program
rules and state statutes, or which would cause a violation of any covenant, condition, or provision herein.
B. American Iron and Steel (Buy American): This loan provision applies to projects for the construction, alteration,
maintenance, or repair of a "treatment works" as defined in the Federal Water Pollution Control Act (33 USC 1381 et
seq.) The RECIPIENT shall ensure that all iron and steel products used in the project are produced in the United
States. Iron and Steel products means the following products made primarily of iron or steel: lined or unlined pipes
and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves,
structural steel, reinforced precast concrete, and construction materials. The RECIPIENT may request waiver from
this requirement from the Administrator of the Environmental Protection Agency. The RECIPIENT must coordinate
all waiver requests through ECOLOGY. This provision does not apply if the engineering plans and specifications for
the project were approved by ECOLOGY prior to January 17, 2014. ECOLOGY reserves the right to request
documentation of RECIPIENT'S compliance with this provision.
C. Authority of RECIPIENT: This agreement is authorized by the Constitution and laws of the state of Washington,
including the RECIPIENT's authority, and by the RECIPIENT pursuant to the authorizing ordinance or resolution.
The RECIPIENT shall submit a copy of the authorizing ordinance or resolution to the ECOLOGY Financial Manager
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State of Washington Department of Ecology
Agreement No: WQC-201 B-POOTPW-00206
Project Title Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
before this agreement shall be signed by ECOLOGY.
D. Equivalency Projects: (For designated equivalency projects only)
1. The RECIPIENT must procure architectural and engineering services in accordance with the federal requirements in
Chapter 1 I of Title 40, U.S.C. (see
www.gpo.gov/fdsys/pkg/USCODE-201 1-title40/pdf/USCODE-2011-title40-subtitle[-chap[ l.pdf).
E. Fiscal Sustainability Plan Certification: The RECIPIENT shall submit a completed Fiscal Sustainability Plan
Certification before this agreement is signed by ECOLOGY. The Fiscal Sustainability Plan Certification is available
from the ECOLOGY Financial Manager or on the Water Quality Program website.
F. Funding Recognition and Outreach: In addition to Section 2.F of these Terms and Conditions, the
RECIPIENT agrees to comply with the EPA SRF Signage Guidance in order to enhance public awareness of EPA
assistance agreements nationwide. The signage guidance can be found at:
http://www.ecy.wa.gov/programs/wq/funding/FundPrgms/C W SRF/SignageGuidanceJune2015.pdf.
G. Insurance: The RECIPIENT shall at all times carry fire and extended insurance coverage, public liability, and
property damage, and such other forms of insurance with responsible insurers and policies payable to the RECIPIENT
on such of the buildings, equipment, works, plants, facilities, and properties of the Utility as are ordinarily carried by
municipal or privately -owned utilities engaged in the operation of like systems, and against such claims for damages
as are ordinarily carried by municipal or privately -owned utilities engaged in the operation of like systems, or it shall
self -insure or participate in an insurance pool or pools with reserves adequate, in the reasonable judgment of the
RECIPIENT, to protect it against loss.
H. Litigation Authority: No litigation is now pending, or to the RECIPIENT's knowledge, threatened, seeking to
restrain, or enjoin:
(i) the execution of this agreement; or
(ii) the fixing or collection of the revenues, rates, and charges or the formation of the ULID and the levy and
collection of ULID Assessments therein pledged to pay the principal of and interest on the loan (for revenue secured
lien obligations); or
(iii) the levy and collection of the taxes pledged to pay the principal of and interest on the loan (for general
obligation -secured loans and general obligation payable from special -assessment -secured loans); or
(iv) in any manner questioning the proceedings and authority under which the agreement, the loan, or the project are
authorized. Neither the corporate existence, or boundaries of the RECIPIENT nor the title of its present officers to
their respective offices is being contested. No authority or proceeding for the execution of this agreement has been
repealed, revoked, or rescinded.
I. Loan Interest Rate and 'terms: This loan agreement shall remain in effect until the date of final repayment of the
loan, unless terminated earlier according to the provisions herein.
When the Project Completion Date has occurred, ECOLOGY and the RECIPIENT shall execute an amendment to this
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
loan agreement which details the final loan amount (Final Loan Amount), and ECOLOGY shall prepare a final loan
repayment schedule. The Final Loan Amount shall be the combined total of actual disbursements made on the loan
and all accrued interest to the computation date.
The Estimated Loan Amount and the Final Loan Amount (in either case, as applicable, a "Loan Amount") shall bear
interest based on the interest rate identified in this agreement as the "Effective Interest Rate," per annum, calculated on
the basis of a 365 day year. Interest on the Estimated Loan Amount shall accrue from and be compounded monthly
based on the date that each payment is mailed to the RECIPIENT. The Final Loan Amount shall be repaid in equal
installments, semiannually, over the term of this loan "Loan Term" as outlined in this agreement.
J. Loan Repayment:
Sources of Loan Repayment
1. Nature of RECIPIENT's Obligation. The obligation of the RECIPIENT to repay the loan from the sources
identified below and to perform and observe all other agreements and obligations on its part, contained herein, shall be
absolute and unconditional, and shall not be subject to diminution by setoff, counterclaim, or abatement of any kind.
To secure the repayment of the loan from ECOLOGY, the RECIPIENT agrees to comply with all of the covenants,
agreements, and attachments contained herein.
2. For General Obligation. This loan is a General Obligation Debt of the RECIPIENT.
3. For General Obligation Payable from Special Assessments. This loan is a General Obligation Debt of the
RECIPIENT payable from special assessments to be imposed within the constitutional and statutory tax limitations
provided by law without a vote of the electors of the RECIPIENT on all of the taxable property within the boundaries
of the RECIPIENT.
4. For Revenue -Secured: Lien Position. This loan is a Revenue -Secured Debt of the RECIPIENT's Utility. This loan
shall constitute a lien and charge upon the Net Revenue junior and subordinate to the lien and charge upon such Net
Revenue of any Senior Lien Obligations.
In addition, if this loan is also secured by Utility Local Improvement Districts (ULID) Assessments, this loan shall
constitute a lien upon ULID Assessments in the ULID prior and superior to any other charges whatsoever.
5. Other Sources of Repayment. The RECIPIENT may repay any portion of the loan from any funds legally available
to it.
6. Defeasance of the Loan. So long as ECOLOGY shall hold this loan, the RECIPIENT shall not be entitled to, and
shall not affect, an economic Defeasance of the loan. The RECIPIENT shall not advance refund the loan.
If the RECIPIENT defeases or advance refunds the loan, it shall be required to use the proceeds thereof immediately
upon their receipt, together with other available RECIPIENT funds, to repay both of the following:
(i) The Loan Amount with interest
(ii) Any other obligations of the RECIPIENT to ECOLOGY under this agreement, unless in its sole discretion
ECOLOGY finds that repayment from those additional sources would not be in the public interest.
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Failure to repay the Loan Amount plus interest within the time specified in ECOLOGY's notice to make such
repayment shall incur Late Charges and shall be treated as a Loan Default.
7. Refinancing or Early Repayment of the Project. So long as ECOLOGY shall hold this loan, the RECIPIENT shall
give ECOLOGY thirty days written notice if the RECIPIENT intends to refinance or make early repayment of the
loan.
Method and Conditions on Repayments
1. Semiannual Payments. Notwithstanding any other provision of this agreement, the first semiannual payment of
principal and interest on this loan shall be due and payable no later than one year after the project completion date or
initiation of operation date, whichever comes first.
Thereafter, equal payments shall be due every six months.
If the due date for any semiannual payment falls on a Saturday, Sunday, or designated holiday for Washington State
agencies, the payment shall be due on the next business day for Washington State agencies.
Payments shall be mailed to:
Department of Ecology
Cashiering Unit
P.O. Box 47611
Olympia WA 98504-7611
In lieu of mailing payments, electronic fund transfers can be arranged by working with ECOLOGY's Financial
Manager.
No change to the amount of the semiannual principal and interest payments shall he made without a mutually signed
amendment to this agreement. The RECIPIENT shall continue to make semiannual payments based on this agreement
until the amendment is effective, at which time the RECIPIENT's payments shall be made pursuant to the amended
agreement.
2. Late Charges. If any amount of the Final Loan Amount or any other amount owed to ECOLOGY pursuant to this
agreement remains unpaid after it becomes due and payable, ECOLOGY may assess a late charge. The late charge
shall be one percent per month on the past due amount starting on the date the debt becomes past due and until it is
paid in full.
3. Repayment Limitations. Repayment of the loan is subject to the following additional limitations, among others:
those on defeasance, refinancing and advance refunding, termination, and default and recovery of payments.
4. Prepayment of Loan. So long as ECOLOGY shall hold this loan, the RECIPIENT may prepay the entire unpaid
principal balance of and accrued interest on the loan or any portion of the remaining unpaid principal balance of the
Loan Amount. Any prepayments on the loan shall be applied first to any accrued interest due and then to the
outstanding principal balance of the Loan Amount. If the RECIPIENT elects to prepay the entire remaining unpaid
balance and accrued interest, the RECIPIENT shall first contact ECOLOGY's Revenue/Receivable Manager of the
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
['reject Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Fiscal Office.
K. Loan Security
Due Regard: For loans secured with a Revenue Obligation: The RECIPIENT shall exercise due regard for
Maintenance and Operation Expense and the debt service requirements of the Senior Lien Obligations and any other
outstanding obligations pledging the Gross Revenue of the Utility, and it has not obligated itself to set aside and pay
into the loan Fund a greater amount of the Gross Revenue of the Utility than, in its judgment, shall be available over
and above such Maintenance and Operation Expense and those debt service requirements.
Where collecting adequate gross utility revenue requires connecting additional users, the RECIPIENT shall require the
sewer system connections necessary to meet debt obligations and expected operation and maintenance expenses.
Levy and Collection of Taxes (if used to secure the repayment of the loan): For so long as the loan is outstanding, the
RECIPIENT irrevocably pledges to include in its budget and levy taxes annually within the constitutional and statutory
tax limitations provided by law without a vote of its electors on all of the taxable property within the boundaries of the
RECIPIENT in an amount sufficient, together with other money legally available and to be used therefore, to pay
when due the principal of and interest on the loan, and the full faith, credit and resources of the RECIPIENT are
pledged irrevocably for the annual levy and collection of those taxes and the prompt payment of that principal and
interest.
Not an Excess Indebtedness: For loans secured with a general obligation pledge or a general obligation pledge on
special assessments: The RECIPIENT agrees that this agreement and the loan to be made do not create an
indebtedness of the RECIPIENT in excess of any constitutional or statutory limitations.
Pledge of Net Revenue and ULID Assessments in the ULID (if used to secure the repayment of this loan): For so long
as the loan is outstanding, the RECIPIENT irrevocably pledges the Net Revenue of the Utility, including applicable
ULID Assessments in the ULID, to pay when due the principal of and interest on the loan.
Utility Local Improvement District (ULID) Assessment Collection (if used to secure the repayment of the loan): All
ULID Assessments in the ULID shall be paid into the Loan Fund and used to pay the principal of and interest on the
loan.
L. Maintenance and Operation of a Funded Utility: The RECIPIFNT shall, at all times, maintain and keep the funded
Utility in good repair, working order, and condition.
M. Opinion of RECIPIENT's Legal Counsel: The RECIPIENT must submit an "Opinion of Legal Counsel to the
RECIPIENT" to ECOLOGY before this agreement will be signed. ECOLOGY will provide the form.
N. Prevailing Wage (Davis -Bacon Act): The RECIPIENT agrees, by signing this agreement, to comply with the
Davis -Bacon Act prevailing wage requirements. This applies to the construction, alteration, and repair of treatment
works carried out, in whole or in part, with assistance made available by the State Revolving Fund as authorized by
Section 513, title VI of the Federal Water Pollution Control Act (33 U.S.C. 1372). Laborers and mechanics employed
by contractors and subcontractors shall be paid wages not less often than once a week and at rates not less than those
prevailing on projects of a character similar in the locality as determined by the Secretary of Labor.
The RECIPIENT shall obtain the wage determination for the area in which the project is located prior to issuing
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
requests for bids, proposals, quotes or other methods for soliciting contracts (solicitation). These wage determinations
shall be incorporated into solicitations and any subsequent contracts. The RECIPIENT shall ensure that the required
EPA contract language regarding Davis -Bacon Wages is in all contracts and sub contracts in excess of $2,000. The
RECIPIENT shall maintain records sufficient to document compliance with the Davis -Bacon Act, and make such
records available for review upon request.
The RECIPIENT also agrees, by signing this agreement, to comply with State Prevailing Wages on Public Works,
Chapter 39.12 RCW, as applicable. Compliance may include the determination whether the project involves "public
work" and inclusion of the applicable prevailing wage rates in the bid specifications and contracts. The RECIPIENT
agrees to maintain records sufficient to evidence compliance with Chapter 39.12 RCW, and make such records
available for review upon request.
O. Progress Reports: RECIPIENTS funded with State Revolving Fund Loan or Forgivable Principal shall include the
following verification statement in the "General Comments" text box of each progress report.
"We verify that we are in compliance with all the requirements as outlined in our funding agreement(s) with the
Department of Ecology. This includes but is not limited to:
- The Davis -Bacon Act, 29 CFR (If applicable)
- Washington State Prevailing Wage Rate, Chapter 39.12 RCW (Pertaining to all recipients)
- The Disadvantaged Business Enterprise (DBE), 40 CFR, Part 33"
P. Representations and Warranties: The RECIPIENT represents and warrants to ECOLOGY as follows:
Application: Material Information. All information and materials submitted by the RECIPIENT to ECOLOGY in
connection with its loan application were, when made, and are, as of the date the RECIPIENT signs this agreement,
true and correct. There is no material adverse information relating to the RECIPIENT, the project, the loan, or this
agreement known to the RECIPIENT, which has not been disclosed in writing to ECOLOGY.
Existence; Authority. It is a duly formed and legally existing municipal corporation or political subdivision of the
state of Washington or a federally recognized Indian Tribe. It has full corporate power and authority to execute,
deliver, and perform all of its obligations under this agreement and to undertake the project identified herein.
Certification. Each payment request shall constitute a certification by the RECIPIENT to the effect that all
representations and warranties made in this loan agreement remain true as of the date of the request and that no
adverse developments, affecting the financial condition of the RECIPIENT or its ability to complete the project or to
repay the principal of or interest on the loan, have occurred since the date of this loan agreement. Any changes in the
RECIPIENT's financial condition shall be disclosed in writing to ECOLOGY by the RECIPIENT in its request for
payment.
Q. Sale or Disposition of Funded Utility: The RECIPIENT shall not sell, transfer, or otherwise dispose of any of the
works, plant, properties, facilities, or other part of the funded Utility or any real or personal property comprising a part
of the funded Utility unless:
1. The facilities or property transferred are not material to the operation of the funded Utility, or have become
unserviceable, inadequate, obsolete, or unfit to be used in the operation of the funded Utility or are no longer
necessary, material, or useful to the operation of the funded Utility; or
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
2. The aggregate depreciated cost value of the facilities or property being transferred in any fiscal year comprises no
more than three percent of the total assets of the funded Utility; or
3. The RECIPIENT receives from the transferee an amount equal to an amount which will be in the same proportion
to the net amount of Senior Lien Obligations and this LOAN then outstanding (defined as the total amount outstanding
less the amount of cash and investments in the bond and loan funds securing such debt) as the Gross Revenue of the
funded Utility from the portion of the funded Utility sold or disposed of for the preceding year bears to the total Gross
Revenue for that period.
4. Expressed written agreement by the DEPARTMENT.
The proceeds of any transfer under this paragraph must be used (1) to redeem promptly, or irrevocably set aside for the
redemption of, Senior Lien Obligations and to redeem promptly the loan, and (2) to provide for part of the cost of
additions to and betterments and extensions of the Utility.
R. Sewer -Use Ordinance or Resolution for Funded Wastewater Facility Projects: if not already in existence, the
RECIPIENT shall adopt and shall enforce a sewer -use ordinance or resolution. Such ordinance or resolution shall be
submitted to ECOLOGY upon request.
The sewer use ordinance must include provisions to:
I) Prohibit the introduction of toxic or hazardous wastes into the RECIPIENT's sewer system.
2) Prohibit inflow of stormwater into separated sewer systems.
3) Require that new sewers and connections be properly designed and constructed.
S. Termination and Default:
Termination and Default Events
1. For Insufficient ECOLOGY or RECIPIENT Funds. ECOLOGY may terminate this loan agreement for insufficient
ECOLOGY or RECIPIENT funds.
2. For Failure to Commence Work. ECOLOGY may terminate this loan agreement for failure of the RECIPIENT to
commence project work.
3. Past Due Payments. The RECIPIENT shall be in default of its obligations under this loan agreement when any loan
repayment becomes 60 days past due.
4. Other Cause. The obligation of ECOLOGY to the RECIPIENT is contingent upon satisfactory performance in full
by the RECIPIENT of all of its obligations under this loan agreement. The RECIPIENT shall be in default of its
obligations under this loan agreement if, in the opinion of ECOLOGY, the RECIPIENT has unjustifiably failed to
perform any obligation required of it by this loan agreement.
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Procedures for Termination. If this loan agreement is terminated prior to project completion, ECOLOGY shall provide
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name. City of Port Orchard Public Works Dept.
to the RECIPIENT a written notice of termination at least five working days prior to the effective date of termination
(the "Termination Date"). The written notice of termination by the ECOLOGY shall specify the Termination Date
and, when applicable, the date by which the RECIPIENT must repay any outstanding balance of the loan and all
accrued interest (the "Termination Payment Date").
Termination and Default Remedies
No Further Payments. On and after the Termination Date, or in the event of a default event, ECOLOGY may, at its
sole discretion, withdraw the loan and make no further payments under this agreement.
Repayment Demand. In response to an ECOLOGY initiated termination event, or in response to a loan default event,
ECOLOGY may at its sole discretion demand that the RECIPIENT repay the outstanding balance of the Loan Amount
and all accrued interest.
Interest after Repayment Demand. From the time that ECOLOGY demands repayment of funds, amounts owed by the
RECIPIENT to ECOLOGY shall accrue additional interest at the rate of one percent per month, or fraction thereof.
Accelerate Repayments. In the event of a default, ECOLOGY may, in its sole discretion, declare the principal of and
interest on the loan immediately due and payable, subject to the prior lien and charge of any outstanding Senior Lien
Obligation upon the Net Revenue. That is, the loan is not subject to acceleration so long as any Senior Lien
Obligations are outstanding. Repayments not made immediately upon such acceleration will incur Late Charges.
Late Charges. All amounts due to ECOLOGY and not paid by the RECIPIENT by the Termination Payment Date or
after acceleration following a default event, as applicable, shall incur late charges.
Intercept State Funds. In the event of a default event and in accordance with Chapter 90.50A.060 RCW, "Defaults,"
any state funds otherwise due to the RECIPIENT may, at ECOLOGY's sole discretion, be withheld and applied to the
repayment of the loan.
Property to ECOLOGY. In the event of a default event and at the option of ECOLOGY, any personal property
(equipment) acquired under this agreement may, in ECOLOGY's sole discretion, become ECOLOGY's property. In
that circumstance, ECOLOGY shall reduce the RECIPIENT's liability to repay money by an amount reflecting the fair
value of such property.
Documents and Materials. If this agreement is terminated, all finished or unfinished documents, data studies, surveys,
drawings, maps, models, photographs, and reports or other materials prepared by the RECIPIENT shall, at the option
of ECOLOGY, become ECOLOGY property. The RECIPIENT shall be entitled to receive just and equitable
compensation for any satisfactory work completed on such documents and other materials.
Collection and Enforcement Actions. In the event of a default event, the state of Washington reserves the right to take
any actions it deems necessary to collect the amounts due, or to become due, or to enforce the performance and
observance of any obligation by the RECIPIENT, under this agreement.
Fees and Expenses. In any action to enforce the provisions of this agreement, reasonable fees and expenses of
attorneys and other reasonable expenses (including, without limitation, the reasonably allocated costs of legal staff)
shall be awarded to the prevailing party as that term is defined in Chapter 4.84.330 RCW.
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State of Washington Department of Ecology
Agreement No WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Damages. Notwithstanding ECOLOGY's exercise of any or all of the termination or default remedies provided in this
agreement, the RECIPIENT shall not be relieved of any liability to ECOLOGY for damages sustained by ECOLOGY
and/or the state of Washington because of any breach of this agreement by the RECIPIENT. ECOLOGY may
withhold payments for the purpose of setoff until such time as the exact amount of damages due ECOLOGY from the
RECIPIENT is determined.
T. User -Charge System for Funded Utilities: The RECIPIENT certifies that it has the legal authority to establish and
implement a user -charge system and shall adopt a system of user -charges to assure that each user of the funded utility
shall pay its proportionate share of the cost of operation and maintenance, including replacement during the design life
of the project. The user -charge system will include provisions for a connection charge.
In addition, the RECIPIENT shall regularly evaluate the user -charge system, at least annually, to ensure the system
provides adequate revenues necessary to operate and maintain the funded utility, to establish reserves to pay for
replacement, and to repay the loan.
GENERAL FEDERAL CONDITIONS
If a portion or all of the funds for this agreement are provided through federal funding sources or this
agreement is used to match a federal grant award, the following terms and conditions apply to you.
A. CERTIFICATION REGARDING SUSPENSION. DEBARMENT. INELIGIBILITY OR VOLUNTARY
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EXCLUSION:
1. The RECIPIENT/CONTRACTOR, by signing this agreement, certifies that it is not suspended, debarred,
proposed for debarment, declared ineligible or otherwise excluded from contracting with the federal
government, or from receiving contracts paid for with federal funds. If the RECIPIENT/CONTRACTOR is
unable to certify to the statements contained in the certification, they must provide an explanation as to why they
cannot.
2. The RECIPIENT/CONTRACTOR shall provide immediate written notice to ECOLOGY if at any time the
RECIPIENT/CONTRACTOR learns that its certification was erroneous when submitted or had become
erroneous by reason of changed circumstances.
3. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant,
person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have
the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549.
You may contact ECOLOGY for assistance in obtaining a copy of those regulations.
4. The RECIPIENT/CONTRACTOR agrees it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under the applicable Code of Federal Regulations, debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction.
5. The RECIPIENT/CONTRACTOR further agrees by signing this agreement, that it will include this clause titled
"CERTIFICATION REGARDING SUSPENSION, DEBARMENT, INELIGIBILITY OR VOLUNTARY
EXCLUSION" without modification in all lower tier covered transactions and in all solicitations for lower tier
covered transactions.
6. Pursuant to 2CFR180.330, the RECIPIENT/CONTRACTOR is responsible for ensuring that any lower tier
covered transaction complies with certification of suspension and debarment requirements.
7. RECIPIENT/CONTRACTOR acknowledges that failing to disclose the information required in the Code of
Federal Regulations may result in the delay or negation of this funding agreement, or pursuance of legal
remedies, including suspension and debarment.
8. RECIPIENT/CONTRACTOR agrees to keep proof in its agreement file, that it, and all lower tier recipients or
contractors, are not suspended or debarred, and will make this proof available to ECOLOGY before requests for
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State of Washington Department of Ecology
Agreement No: WQC-201 B-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept.
reimbursements will be approved for payment. RECIPIENT/CONTRACTOR must run a search in
-. http://www.sain.gov> and print a copy of completed searches to document proof of compliance.
B. FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT FFATA REPORTING
REQUIREMENTS:
CONTRACTOR/RECIPIENT must complete the FFATA Data Collection Form (ECY 070-395) and return it
with the signed agreement to ECOLOGY.
Any CONTRACTOR/RECIPIENT that meets each of the criteria below must report compensation for its five
top executives using the FFATA Data Collection Form.
• Receives more than $25,000 in federal funds under this award.
• Receives more than 80 percent of its annual gross revenues from federal funds.
• Receives more than $25,000,000 in annual federal funds.
Ecology will not pay any invoices until it has received a completed and signed FFATA Data Collection Form.
Ecology is required to report the FFATA information for federally funded agreements, including the required
DUNS number, at www.fsrs. og v�=http:/hvww.[srs.gov/> within 30 days of agreement signature. The FFATA
information will be available to the public at www.usaspending_Mov <http://www,usaspending.i;ov./>.
For more details on FFATA requirements, see www.fsrs.gov <http://www.fsrs.gov/>.
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State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwatcr Plan
Recipient Name: City of Port Orchard Public Works Dept
GENERAL TERMS AND CONDITIONS
Pertaining to Grant and Loan Agreements With the state of Washington, Department of Ecology
GENERAL TERMS AND CONDITIONS AS OF LAST UPDATED 1/22/2018 VERSION
1. ADMINISTRATIVE REQUIREMENTS
a) RECIPIENT shall follow the "Administrative Requirements for Recipients of Ecology Grants and Loans — EAGL
Edition." (https://fortress.wa.gov/ecy/publications/SummaryPages/1701004.html)
b) RECIPIENT shall complete all activities funded by this Agreement and be fully responsible for the proper
management of all funds and resources made available under this Agreement.
c) RECIPIENT agrees to take complete responsibility for all actions taken under this Agreement, including ensuring
all subgrantees and contractors comply with the terms and conditions of this Agreement. ECOLOGY reserves the right
to request proof of compliance by subgrantees and contractors.
d) RECIPIENT's activities under this Agreement shall be subject to the review and approval by ECOLOGY for the
extent and character of all work and services.
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2. 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 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,
3. ARCHAEOLOGICAL AND CULTURAL RESOURCES
RECIPIENT shall take reasonable action to avoid, minimize, or mitigate adverse effects to archeological and historic
resources. The RECIPIENT must agree to hold harmless the State of Washington in relation to any claim related to
historical or cultural artifacts discovered, disturbed, or damaged due to the RECIPIENT's project funded under this
Agreement.
RECIPIENT shall:
a) Contact the ECOLOGY Program issuing the grant or loan to discuss any Cultural Resources requirements for their
project:
• For capital construction projects or land acquisitions for capital construction projects, if required, comply with
Governor Executive Order 05-05, Archaeology and Cultural Resources.
• For projects with any federal involvement, if required, comply with the National Historic Preservation Act.
• Any cultural resources federal or state requirements must be completed prior to the start of any work on the project
site.
b) If required by the ECOLOGY Program, submit an Inadvertent Discovery Plan (IDP) to ECOLOGY prior to
implementing any project that involves ground disturbing activities. ECOLOGY will provide the IDP form.
RECIPIENT shall:
• Keep the IDP at the project site.
• Make the IDP readily available to anyone working at the project site.
• Discuss the IDP with staff and contractors working at the project site.
• Implement the IDP when cultural resources or human remains are found at the project site.
c) If any archeological or historic resources are found while conducting work under this Agreement:
• Immediately stop work and notify the ECOLOGY Program, the Department of Archaeology and Historic
Preservation at (360) 586-3064, any affected Tribe, and the local government.
d) If any human remains are found while conducting work under this Agreement:
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State of Washington Department of Ecology Page 35 of 42
Agreement No: WQC-2018-PoOrPW-00206
Project Title, Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
• Immediately stop work and notify the local Law Enforcement Agency or Medical Examiner/Coroner's Office, and
then the ECOLOGY Program.
e) Comply with RCW 27.53, RCW 27.44.055, and RCW 68.50.645, and all other applicable local, state, and federal
laws protecting cultural resources and human remains.
4. ASSIGNMENT
No right or claim of the RECIPIENT arising under this Agreement shall be transferred or assigned by the RECIPIENT.
5. COMMUNICATION
RECIPIENT shall make every effort to maintain effective communications with the RECIPIENT's designees,
ECOLOGY, all affected local, state, or federal jurisdictions, and any interested individuals or groups.
6. COMPENSATION
a) Any work performed prior to effective date of this Agreement will beat the sole expense and risk of the
RECIPIENT. ECOLOGY must sign the Agreement before any payment requests can be submitted.
b) Payments will be made on a reimbursable basis for approved and completed work as specified in this Agreement.
c) RECIPIENT is responsible to determine if costs are eligible. Any questions regarding eligibility should be clarified
with ECOLOGY prior to incurring costs. Costs that are conditionally eligible require approval by ECOLOGY prior to
expenditure.
d) RECIPIENT shall not invoice more than once per month unless agreed on by ECOLOGY.
e) ECOLOGY will not process payment requests without the proper reimbursement forms, Progress Report and
supporting documentation. ECOLOGY will provide instructions for submitting payment requests.
f) ECOLOGY will pay the RECIPIENT thirty (30) days after receipt of a properly completed request for payment.
g) RECIPIENT will receive payment through Washington State Department of Enterprise Services' Statewide Payee
Desk. RECIPIENT must register as a payee by submitting a Statewide Payee Registration form and an IRS W-9 form
at the website, http://www.des.wa.gov/services/ContractingPurchasing/BusinessNendorPay/Pages/default.aspx. For
any questions about the vendor registration process contact the Statewide Payee Help Desk at (360) 407-8180 or email
payeehelpdesk(a,watech.wa.gov.
h) ECOLOGY may, at its sole discretion, withhold payments claimed by the RECIPIENT if the RECIPIENT fails to
satisfactorily comply with any term or condition of this Agreement.
i) Monies withheld by ECOLOGY may be paid to the RECIPIENT when the work described herein, or a portion
thereof, has been completed if, at ECOLOGY's sole discretion, such payment is reasonable and approved according to
this Agreement, as appropriate, or upon completion of an audit as specified herein.
j) RECIPIENT must submit within thirty (30) days after the expiration date of this Agreement, all financial,
performance, and other reports required by this agreement. Failure to comply may result in delayed reimbursement.
7. COMPLIANCE WITH ALL LAWS
RECIPIENT agrees to comply fully with all applicable federal, state and local laws, orders, regulations, and permits
related to this Agreement, including but not limited to:
a) 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.
b) RECIPIENT agrees to be bound by all applicable federal and state laws, regulations, and policies against
discrimination.
c) RECIPIENT certifies full compliance with all applicable state industrial insurance requirements.
d) RECIPIENT agrees to secure and provide assurance to ECOLOGY that all the necessary approvals and permits
required by authorities having jurisdiction over the project are obtained. RECIPIENT must include time in their project
timeline for the permit and approval processes.
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Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
ECOLOGY shall have the right to immediately terminate for cause this Agreement as provided herein if the
RECIPIENT fails to comply with above requirements.
If any provision of this Agreement violates any statute or rule of law of the state of Washington, it is considered
modified to conform to that statute or rule of law.
8. CONFLICT OF INTEREST
RECIPIENT and ECOLOGY agree that any officer, member, agent, or employee, who exercises any function or
responsibility in the review, approval, or carrying out of this Agreement, shall not have any personal or financial
interest, direct or indirect, nor affect the interest of any corporation, partnership, or association in which he/she is a part,
in this Agreement or the proceeds thereof.
9. CONTRACTING FOR GOODS AND SERVICES
RECIPIENT may contract to buy goods or services related to its performance under this Agreement. RECIPIENT shall
award all contracts for construction, purchase of goods, equipment, services, and professional architectural and
engineering services through a competitive process, if required by State law. RECIPIENT is required to follow
procurement procedures that ensure legal, fair, and open competition.
RECIPIENT must have a standard procurement process or follow current state procurement procedures. RECIPIENT
may be required to provide written certification that they have followed their standard procurement procedures and
applicable state law in awarding contracts under this Agreement.
ECOLOGY reserves the right to inspect and request copies of all procurement documentation, and review procurement
practices related to this Agreement. Any costs incurred as a result of procurement practices not in compliance with
state procurement law or the RECIPIENT's normal procedures may be disallowed at ECOLOGY's sole discretion.
10. DISPUTES
When there is a dispute with regard to the extent and character of the work, or any other matter related to this
Agreement the determination of ECOLOGY will govern, although the RECIPIENT shall have the right to appeal
decisions as provided for below:
a) RECIPIENT notifies the funding program of an appeal request.
b) Appeal request must be in writing and state the disputed issue(s).
c) RECIPIENT has the opportunity to be heard and offer evidence in support of its appeal.
d) ECOLOGY reviews the RECIPIENT's appeal.
e) ECOLOGY sends a written answer within ten (10) business days, unless more time is needed, after concluding the
review.
The decision of ECOLOGY from an appeal will be final and conclusive, unless within thirty (30) days from the date of
such decision, the RECIPIENT furnishes to the Director of ECOLOGY a written appeal. The decision of the Director or
duly authorized representative will be final and conclusive.
The parties agree that this dispute process will precede any action in a judicial or quasi-judicial tribunal.
Appeals of the Director's decision will be brought in the Superior Court of Thurston County. Review of the Director's
decision will not be taken to Environmental and Land Use Hearings Office.
Pending final decision of a dispute, the RECIPIENT agrees to proceed diligently with the performance of this
Agreement and in accordance with the decision rendered.
Nothing in this Agreement will be construed to limit the parties' choice of another mutually acceptable method, in
addition to the dispute resolution procedure outlined above.
11. ENVIRONMENTAL DATA STANDARDS
a) RECIPIENT shall prepare a Quality Assurance Project Plan (QAPP) for a project that collects or uses
environmental measurement data. RECIPIENTS unsure about whether a QAPP is required for their project shall contact
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Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Page 37 of 42
the ECOLOGY Program issuing the grant or loan. If a QAPP is required, the RECIPIENT shall:
• Use ECOLOGY's QAPP Template/Checklist provided by the ECOLOGY, unless ECOLOGY Quality Assurance
(QA) officer or the Program QA coordinator instructs otherwise.
• Follow ECOLOGY's Guidelines for Preparing Quality Assurance Project Plans for Environmental Studies, July
2004 (Ecology Publication No. 04-03-030).
• Submit the QAPP to ECOLOGY for review and approval before the start of the work.
b) RECIPIENT shall submit environmental data that was collected on a project to ECOLOGY using the
Environmental Information Management system (EIM), unless the ECOLOGY Program instructs otherwise. The
RECIPIENT must confirm with ECOLOGY that complete and correct data was successfully loaded into EIM, find
instructions at: http://www.ecy.wa.gov/eim.
c) RECIPIENT shall follow ECOLOGY's data standards when Geographic Information System (GIS) data is collected
and processed. Guidelines for Creating and Accessing GIS Data are available at:
https://ecology.wa.gov/Research-Data/Data-resources/Geographic-Information-Systems-GIS/Standards. RECIPIENT,
when requested by ECOLOGY, 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.
12. GOVERNING LAW
This Agreement will be governed by the laws of the State of Washington, and the venue of any action brought
hereunder will be in the Superior Court of Thurston County.
13. INDEMNIFICATION
ECOLOGY will 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.
To the extent that the Constitution and laws of the State of Washington permit, each party will 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 parry's agents or employees arising out of this Agreement.
14. INDEPENDENT STATUS
The employees, volunteers, or agents of each party who are engaged in the performance of this Agreement will continue
to be employees, volunteers, or agents of that party and will not for any purpose be employees, volunteers, or agents of
the other party.
15. KICKBACKS
RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this Agreement
to give up any part of the compensation to which he/she is otherwise entitled to or receive any fee, commission, or gift
in return for award of a subcontract hereunder.
16. MINORITY AND WOMEN'S BUSINESS ENTERPRISES (MWBE)
RECIPIENT is encouraged to solicit and recruit, to the extent possible, certified minority -owned (MBE) and
women -owned (WBE) businesses in purchases and contracts initiated under this Agreement.
Contract awards or rejections cannot be made based on MWBE participation; however, the RECIPIENT is encouraged
to take the following actions, when possible, in any procurement under this Agreement:
a) Include qualified minority and women's businesses on solicitation lists whenever they are potential sources of goods
or services.
b) Divide the total requirements, when economically feasible, into smaller tasks or quantities, to permit maximum
participation by qualified minority and women's businesses.
c) Establish delivery schedules, where work requirements permit, which will encourage participation of qualified
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Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name City of Port Orchard Public Works Dept
minority and women's businesses.
d) Use the services and assistance of the Washington State Office of Minority and Women's Business Enterprises
(OMWBE) (866-208-1064) and the Office of Minority Business Enterprises of the U.S. Department of Commerce, as
appropriate.
17. ORDER OF 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) The
Agreement; (c) Scope of Work; (d) Special Terms and Conditions; (e) Any provisions or terms incorporated herein by
reference, including the "Administrative Requirements for Recipients of Ecology Grants and Loans"; and (0 the
General Terms and Conditions.
18. PRESENTATION AND PROMOTIONAL MATERIALS
ECOLOGY reserves the right to approve RECIPIENT's communication documents and materials related to the
fulfillment of this Agreement:
a) If requested, RECIPIENT shall provide a draft copy to ECOLOGY for review and approval ten (10) business days
prior to production and distribution.
b) RECIPIENT shall include time for ECOLOGY's review and approval process in their project timeline.
c) If requested, RECIPIENT shall provide ECOLOGY two (2) final copies and an electronic copy of any tangible
products developed.
Copies include any printed materials, and all tangible products developed such as brochures, manuals, pamphlets,
videos, audio tapes, CDs, curriculum, posters, media announcements, or gadgets with a message, such as a refrigerator
magnet, and any online communications, such as web pages, blogs, and twitter campaigns. If it is not practical to
provide a copy, then the RECIPIENT shall provide a description (photographs, drawings, printouts, etc.) that best
represents the item.
Any communications intended for public distribution that uses ECOLOGY's logo shall comply with ECOLOGY's
graphic requirements and any additional requirements specified in this Agreement. Before the use of ECOLOGY's
logo contact ECOLOGY for guidelines.
RECIPIENT shall acknowledge in the communications that funding was provided by ECOLOGY.
19. PROGRESS REPORTING
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a) RECIPIENT must satisfactorily demonstrate the timely use of funds by submitting payment requests and progress
reports to ECOLOGY. ECOLOGY reserves the right to amend or terminate this Agreement if the RECIPIENT does
not document timely use of funds.
b) RECIPIENT must submit a progress report with each payment request. Payment requests will not be processed
without a progress report. ECOLOGY will define the elements and frequency of progress reports.
c) RECIPIENT shall use ECOLOGY's provided progress report format.
d) Quarterly progress reports will cover the periods from January l through March 31, April I through June 30, July I
through September 30, and October I through December 31. Reports shall be submitted within thirty (30) days after
the end of the quarter being reported.
c) RECIPIENT must submit within thirty (30) days of the expiration date of the project, unless an extension has been
approved by ECOLOGY, all financial, performance, and other reports required by the agreement and funding program
guidelines. RECIPIENT shall use the ECOLOGY provided closeout report format.
20. PROPERTY RIGHTS
a) Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable
property under this Agreement, the RECIPIENT may copyright or patent the same but ECOLOGY retains a royalty free,
nonexclusive, and irrevocable license to reproduce, publish, recover, or otherwise use the material(s) or property, and to
Version 10/302015
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Page 39 of42
authorize others to use the same for federal, state, or local government purposes.
b) Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish ECOLOGY
information; present papers, lectures, or seminars involving information supplied by ECOLOGY; or use logos, reports,
maps, or other data in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to ECOLOGY.
c) Presentation and Promotional Materials. ECOLOGY shall have the right to use or reproduce any printed or graphic
materials produced in fulfillment of this Agreement, in any manner ECOLOGY deems appropriate. ECOLOGY shall
acknowledge the RECIPIENT as the sole copyright owner in every use or reproduction of the materials.
d) Tangible Property Rights. ECOLOGY's current edition of "Administrative Requirements for Recipients of Ecology
Grants and Loans," shall control the use and disposition of all real and personal property purchased wholly or in part
with funds fumished by ECOLOGY in the absence of state and federal statutes, regulations, or policies to the contrary,
or upon specific instructions with respect thereto in this Agreement.
e) Personal Property Furnished by ECOLOGY. When ECOLOGY provides personal property directly to the
RECIPIENT for use in performance of the project, it shall be returned to ECOLOGY prior to final payment by
ECOLOGY. If said property is lost, stolen, or damaged while in the RECIPIENT's possession, then ECOLOGY shall
be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property.
f) Acquisition Projects. The following provisions shall apply if the project covered by this Agreement includes funds
for the acquisition of land or facilities:
I. RECIPIENT shall establish that the cost is fair value and reasonable prior to disbursement of funds provided for in
this Agreement-
2. 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 intended by this Agreement.
g) Conversions. Regardless of the Agreement expiration date, the RECIPIENT shall not at any time convert any
equipment, property, or facility acquired or developed under this Agreement to uses other than those for which
assistance was originally approved without prior written approval of ECOLOGY. Such approval may be conditioned
upon payment to ECOLOGY 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.
21. RECORDS, AUDITS, AND INSPECTIONS
RECIPIENT shall maintain complete program and financial records relating to this Agreement, including any
engineering documentation and field inspection reports of all construction work accomplished.
All records shall:
a) Be kept in a manner which provides an audit trail for all expenditures.
b) Be kept in a common file to facilitate audits and inspections.
c) Clearly indicate total receipts and expenditures related to this Agreement.
d) Be open for audit or inspection by ECOLOGY, or by any duly authorized audit representative of the State of
Washington, for a period of at least three (3) years after the final grant payment or loan repayment, or any dispute
resolution hereunder.
RECIPIENT shall provide clarification and make necessary adjustments if any audits or inspections identify
discrepancies in the records.
ECOLOGY reserves the right to audit, or have a designated third party audit, applicable records to ensure that the state
has been properly invoiced. Any remedies and penalties allowed by law to recover monies determined owed will be
enforced. Repetitive instances of incorrect invoicing or inadequate records may be considered cause for termination.
All work performed under this Agreement and any property and equipment purchased shall be made available to
ECOLOGY and to any authorized state, federal or local representative for inspection at any time during the course of
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-201 S-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Page 40 of 42
this Agreement and for at least three (3) years following grant or loan termination or dispute resolution hereunder.
RECIPIENT shall provide right of access to ECOLOGY, or any other authorized representative, at all reasonable times,
in order to monitor and evaluate performance, compliance, and any other conditions under this Agreement.
22. RECOVERY OF FUNDS
The right of the RECIPIENT to retain monies received as reimbursement payments is contingent upon satisfactory
performance of this Agreement and completion of the work described in the Scope of Work.
All payments to the RECIPIENT are subject to approval and audit by ECOLOGY, and any unauthorized expenditure(s)
or unallowable cost charged to this Agreement shall be refunded to ECOLOGY by the RECIPIENT.
RECIPIENT shall refund to ECOLOGY the full amount of any erroneous payment or overpayment under this
Agreement.
RECIPIENT shall refund by check payable to ECOLOGY the amount of any such reduction of payments or repayments
within thirty (30) days of a written notice. Interest will accrue at the rate of twelve percent (12%) per year from the
time ECOLOGY demands repayment of funds.
Any property acquired under this Agreement, at the option of ECOLOGY, may become ECOLOGY's property and the
RECIPIENT's liability to repay monies will be reduced by an amount reflecting the fair value of such property.
23. 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.
24. STATE ENVIRONMENTAL POLICY ACT (SEPA)
RECIPIENT must demonstrate to ECOLOGY's satisfaction that compliance with the requirements of the State
Environmental Policy Act (Chapter 43.21C RCW and Chapter 197-11 WAC) have been or will be met. Any
reimbursements are subject to this provision.
25. SUSPENSION
When in the best interest of ECOLOGY, ECOLOGY may at any time, and without cause, suspend this Agreement or
any portion thereof for a temporary period by written notice from ECOLOGY to the RECIPIENT. RECIPIENT shall
resume performance on the next business day following the suspension period unless another day is specified by
ECOLOGY.
26. SUSTAINABLE PRACTICES
In order to sustain Washington's natural resources and ecosystems, the RECIPIENT is fully encouraged to implement
sustainable practices and to purchase environmentally preferable products under this Agreement.
a) Sustainable practices may include such activities as: use of clean energy, use of double -sided printing, hosting low
impact meetings, and setting up recycling and composting programs.
b) Purchasing may include such items as: sustainably produced products and services, EPEAT registered computers
and imaging equipment, independently certified green cleaning products, remanufactured toner cartridges, products
with reduced packaging, office products that are refillable, rechargeable, and recyclable, and 100% post -consumer
recycled paper.
For more suggestions visit ECOLOGY's web page: Green Purchasing, ,
https://ecology.wa,gov/Regulations-Perm its/Gu idance-technical-assi stance/Sustainab le -purchasing.
27. TERMINATION
a) For Cause
ECOLOGY may terminate for cause this Agreement with a seven (7) calendar days prior written notification to the
Version t0/30/2015
State of Washington Department of Ecology Page 41 of 42
Agreement No: WQC-201 S-PoOrPW-00206
Project Title. Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
RECIPIENT, at the sole discretion of ECOLOGY, for failing to perform an Agreement requirement or for a material
breach of any term or condition. If this Agreement is so terminated, the parties shall be liable only for performance
rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination.
Failure to Commence Work. ECOLOGY reserves the right to terminate this Agreement if RECIPIENT fails to
commence work on the project funded within four (4) months after the effective date of this Agreement, or by any date
mutually agreed upon in writing for commencement of work, or the time period defined within the Scope of Work.
Non -Performance. The obligation of ECOLOGY 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 ECOLOGY, to perform any obligation required of it by this Agreement, ECOLOGY may refuse to pay any
further funds, terminate in whole or in part this Agreement, and exercise any other rights under this Agreement.
Despite the above, the RECIPIENT shall not be relieved of any liability to ECOLOGY for damages sustained by
ECOLOGY and the State of Washington because of any breach of this Agreement by the RECIPIENT. ECOLOGY
may withhold payments for the purpose of setoff until such time as the exact amount of damages due ECOLOGY from
the RECIPIENT is determined.
b) For Convenience
ECOLOGY may terminate for convenience this Agreement, in whole or in part, for any reason when it is the best
interest of ECOLOGY, with a thirty (30) calendar days prior written notification to the RECIPIENT, except as noted
below. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in
accordance with the terms of this Agreement prior to the effective date of termination.
Non -Allocation of Funds. ECOLOGY'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 the completion or expiration date of this Agreement, ECOLOGY, at its sole discretion, may elect to terminate
the Agreement, in whole or part, or renegotiate the Agreement, subject to new funding limitations or conditions.
ECOLOGY may also elect to suspend performance of the Agreement until ECOLOGY determines the funding
insufficiency is resolved. ECOLOGY may exercise any of these options with no notification or restrictions, although
ECOLOGY will make a reasonable attempt to provide notice.
In the event of termination or suspension, ECOLOGY will reimburse eligible costs incurred by the recipient/contractor
through the effective date of termination or suspension. Reimbursed costs must be agreed to by ECOLOGY and the
recipient/contractor. In no event shall ECOLOGY's reimbursement exceed ECOLOGY's total responsibility under the
agreement and any amendments.
If payments have been discontinued by ECOLOGY due to unavailable funds, the RECIPIENT shall not be obligated to
repay monies which had been paid to the RECIPIENT prior to such termination.
RECIPIENT's obligation to continue or complete the work described in this Agreement shall be contingent upon
availability of funds by the RECIPIENT's governing body.
c) By Mutual Agreement
ECOLOGY and the RECIPIENT may terminate this Agreement, in whole or in part, at any time, by mutual written
agreement.
d) In Event of Termination
All finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, reports or other
materials prepared by the RECIPIENT under this Agreement, at the option of ECOLOGY, will become property of
ECOLOGY and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work
Version 10/30/2015
State of Washington Department of Ecology
Agreement No: WQC-2018-PoOrPW-00206
Project Title: Port Orchard Downtown Basin Stormwater Plan
Recipient Name: City of Port Orchard Public Works Dept
Page 42 of 42
completed on such documents and other materials.
Nothing contained herein shall preclude ECOLOGY from demanding repayment of all funds paid to the RECIPIENT in
accordance with Recovery of Funds, identified herein.
28. THIRD PARTY BENEFICIARY
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.
29. WAIVER
Waiver of a default or breach of any provision of this Agreement is not a waiver of any subsequent default or 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 ECOLOGY.
Version 10/30/2015
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