Department of Commerce Interagency Agreement for 2012 Energy Efficiency Grants for Local Governments:0 0
Department of Commerce
Innovation is in our nature.
Interagency Agreement with
City of Edmonds
through
2012 Energy Efficiency Grants for Local Governments
(Engrossed Senate Bill 5127, Laws of 2012,
2"d Special Session, Chapter 1, Section 301)
Start date: Upon Final Signature
Washington State Department of Commerce)!,,
www.commerce.wa.gov
6063
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TABLE OF CONTENTS
FaceSheet...................................................................................................................... 1
Special Terms and Conditions..... ... ......................................................... ..................... 2
1. Grant Management.................................................................................. 2
2. Compensation......................................................................................... 2
3. Expenditures Eligible for Reimbursement........ . .......................... .... 2
4. Billing Procedures and Payment.............................................................. 3
5. Insurance....................................................................................... ..... 3
6. Order of Precedence............................................................................... 4
7. Reporting of Jobs Funded..............................................................4
8. Ongoing Measurement & Verification ............................................... 5
9. Reappropriation....................................................................................... 6
General Terms and Conditions....................................................................................... 1
1.
Definitions.........................................................................
2.
Advanced Payments Prohibited...............................................................1
3.
All Writings Contained Herein..................................................................1
4.
Amendments...........................................................................................
1
5.
Americans with Disabilities Act(ADA)......................................................
1
6.
Approval..................................................................................................1
7.
Assignment..............................................................................................1
8.
Attorney's Fees........................................................................................
2
9.
Audit........................................................................................................
2
10.
Confidentiality/Safeguarding of Information ..............................................
3
11.
Conformance...........................................................................................
3
12.
Copyright Provisions................................................................................4
13.
Disputes..................................................................................................
4
14.
Duplicate Payment....................................................................................
5
15.
Ethics/Conflicts of Interest.......................................................................
5
16.
Governing Law and Venue......................................................................
5
17.
Indemnification........................................................................................
5
18.
Independent Capacity of the Grantee ......................................................
5
19.
Industrial Insurance Coverage.................................................................
5
20.
Laws........................................................................................................
6
21.
Licensing, Accreditation and Registration ................................................
6
22.
Limitation of Authority..............................................................................
6
23.
Noncompliance With Nondiscrimination Laws ..........................................
6
24.
Political Activities.....................................................................................
6
25.
Prohibition Against Payment of Bonus or Commission........
..................... 6
26.
Publicity...................................................................................................
7
27.
Recapture.............................................................................
................7
28.
Records Maintenance..............................................................................
7
29.
Registration With Department of Revenue ...............................................
7
30.
Right of Inspection................................................................................... 7
31.
Savings....................................................................................................7
32.
Severability..................................................................•...........................7
33.
Subgranting.............................................................................................
8
34.
Survival........................................................................•
............ ............ .8
35.
Taxes.......................................................................................................8
36.
Termination for Cause/Suspension...........................................................
8
37.
Termination for Convenience...................................................................
9
38.
Termination Procedures...........................................................................
9
39.
Waiver.....................................................................................................9
(over)
Attachment A, Scope of Work
Attachment B, Budget
Attachment C, Availability of Funds
Attachment D Certification of Prevailing Wages
FACE SHEET
Grant Number: 13-93222-046
Washington State Department of Commerce
Community Services & Housing Division
Community Capital Facilities Unit
1. Grantee
2. Grantee Doing Business As (optional)
City of Edmonds
7110 210th St. SW
Edmonds, Washington 98026
3. Grantee Representative
4. COMMERCE Representative
Jim Stevens
Daniel Aarthun
Facilities Maintenance Manager
Program Manager P.O. Box 42525
425-760-3334
360-725-3007 1011 Plum Street SE
jim.stevens@edmondswa.org
360-586-5880 Olympia, WA 98504-2525
dan.aarthun@commerce.wa.gov
5. Grant Amount
6. Funding Source
7. Start Date
8. End Date
$187,566.00
Federal: ❑ State: ® Other: ❑ N/A: ❑
Upon Final Signature
June 30, 2015
9. Federal Funds (as applicable) Federal Agency CFDA Number
N/A N/A N/A
10. Tax ID #
11. SWV #
12. UBI #
13. DUNS #
N/A
0013866-00
N/A
N/A
14. Grant Purpose
The purpose of this contract is to provide Washington's local governments with grant funds for operational cost savings
improvements that result in energy and operational cost savings in accordance with ESB 5127, Laws of 2012, 2nd Special Session,
Ch 1, Sec .301.
COMMERCE, defined as the Department of Commerce or its successor agency, and the Grantee, as defined above, acknowledge
and accept the terms of this Agreement and attachments and have executed this Agreement on the date below to start as of the date
and year referenced above. The rights and obligations of both parties to this Grant are governed by this Grant and the following
other documents incorporated by reference: Agreement Terms and Conditions including Attachment "A" — Scope of Work,
Attachment "B" — Budget, Attachment "C" — Certification of Availability of Funds to Complete the Project, Attachment "D" —
Certification of the Payment and Reporting of Prevailing Wages.
TEE
FOR COMMERCE
Z
Diane Klontz, Assistan Director CSHD
in , Mayor, City of Edmonds
Date
Date
APPROVED AS TO FORM ONLY
Signature on file.
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SPECIAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
THIS CONTRACT, entered into by and between City of Edmonds (a unit of local government hereinafter
referred to as the Grantee), and the Washington State Department of Commerce (hereinafter referred to
as COMMERCE), WITNESSES THAT:
WHEREAS, COMMERCE has the statutory authority under RCW 43.330.050 (5) to cooperate
with and provide assistance to local governments, businesses, and community -based
organizations; and
WHEREAS, COMMERCE is also given the responsibility to administer state funds and programs
which are assigned to COMMERCE by the Governor or the Washington State Legislature; and
WHEREAS, the Washington State Legislature has, in ESB 5127, Laws of 2012, 2nd Special
Session, Chapter 1, Section 301, made an appropriation to support the 2012 Energy Efficiency
Grants for Local Governments Program, and directed COMMERCE to administer those funds;
and
WHEREAS, the enabling legislation also stipulates that the Grantee is eligible to receive funding
for acquisition, construction, or rehabilitation (a venture hereinafter referred to as the "Project').
NOW, THEREFORE, in consideration of covenants, conditions, performances, and promises hereinafter
contained, the parties hereto agree as follows:
1. GRANT MANAGEMENT
The Representative for each of the parties shall be responsible for and shall be the contact person for
all communications and billings regarding the performance of this Agreement.
The Representative for COMMERCE and their contact information are identified on the Face
Sheet of this Agreement.
The Representative for the Grantee and their contact information are identified on the Face Sheet
of this Agreement.
COMPENSATION
COMMERCE shall pay an amount not to exceed $187,566.00 for the performance of all things
necessary for or incidental to the performance of work as set forth in the Scope of Work.
3. EXPENDITURES ELIGIBLE FOR REIMBURSEMENT
The Grantee may be reimbursed, at the rate set forth elsewhere in this contract, for work completed
beginning April 23, 2012. Eligible project expenditures are in the following cost categories:
A. Design, engineering, architectural, planning services and nongrantee overhead and profit;
B. Construction management and observation (from external sources only);
C. Construction costs including, but not limited to, the following:
Demolition;
Site preparation;
Permits and fees;
Labor and materials;
Taxes on Project goods and services;
Capitalized equipment;
Information technology infrastructure; and
Landscaping.
D. Loan Interest over the term of the loan.
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SPECIAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
4. BILLING PROCEDURES AND PAYMENT
COMMERCE shall reimburse the Grantee for 100% of eligible Project expenditures, up to the
maximum payable under this contract. When requesting reimbursement for expenditures made, the
Grantee shall submit to COMMERCE a signed and completed Invoice Voucher (Form A-19), that
documents capitalized Project activity performed — by budget line item — for the billing period.
The Grantee shall evidence the costs claimed on each voucher by including copies of each invoice
received from vendors providing Project goods or services covered by the contract. The Grantee
shall also provide COMMERCE with a copy of the cancelled check or electronic funds transfer, as
applicable, confirming that they have paid each expenditure being claimed. The cancelled checks or
electronic funds transfers may be submitted to COMMERCE at the time the voucher is initially
submitted, or within thirty (30) days thereafter.
The voucher must be certified (signed) by an official of the Grantee with authority to bind the Grantee.
The final voucher shall be submitted to COMMERCE within sixty (60) days following the completion of
work or other termination of this contract, or within fifteen (15) days following the end of the state
biennium unless contract funds are reappropriated by the Legislature in accordance with Section 9,
hereof.
Payment shall be considered timely if made by COMMERCE within thirty (30) calendar days after
receipt of properly completed invoices.
Project Status Report
Each request for payment must be accompanied by a Project Status Report, which describes, in
narrative form, the progress made on the Project since the last invoice was submitted, as well as a
report of Project status to date. COMMERCE will not release payment for any reimbursement
request received unless and until the Project Status Report is received. After approving the Invoice
Voucher and Project Status Report, COMMERCE shall promptly remit a warrant to the Grantee.
Advance Payment
No payments in advance or in anticipation of services or supplies to be provided under this
Agreement shall be made by COMMERCE.
Duplication of Billed Casts
The Grantee shall not bill COMMERCE for services performed under this Agreement, and
COMMERCE shall not pay the Grantee, if the Grantee is entitled to payment or has been or will be
paid by any other source, including grants, for that service.
Disallowed Costs
The Grantee is responsible for any audit exceptions or disallowed costs incurred by its own
organization or that of its subcontractors.
Termination
COMMERCE may, in its sole discretion, terminate the Grant or withhold payments claimed by the
Grantee for services rendered if the Grantee fails to satisfactorily comply with any term or condition of
this Grant.
5. INSURANCE
Grantees and Local Governments that Participate in a Self -Insurance Program.
Self-Insured/Liability Pool or Self -Insured Risk Management Program — With prior approval from
COMMERCE, the Grantee may provide the coverage above under a self-insured/liability pool or
self -insured risk management program. In order to obtain permission from COMMERCE, the
Grantee shall provide: (1) a description of its self-insurance program, and (2) a certificate and/or
letter of coverage that outlines coverage limits and deductibles. All self -insured risk management
SPECIAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
programs or self-insured/liability pool financial reports must comply with Generally Accepted
Accounting Principles (GAAP) and adhere to accounting standards promulgated by: 1)
Governmental Accounting Standards Board (GASB), 2) Financial Accounting Standards Board
(FASB), and 3) the Washington State Auditor's annual instructions for financial reporting.
Contractor's participating in joint risk pools shall maintain sufficient documentation to support the
aggregate claim liability information reported on the balance sheet. The state of Washington, its
agents, and employees need not be named as additional insured under a self -insured
property/liability pool, if the pool is prohibited from naming third parties as additional insured.
Grantee shall provide annually to COMMERCE a summary of coverages and a letter of self
insurance, evidencing continued coverage under Grantee's self-insured/liability pool or self -
insured risk management program. Such annual summary of coverage and letter of self
insurance will be provided on the anniversary of the start date of this Agreement.
6. ORDER OF PRECEDENCE
In the event of an inconsistency in this Agreement, the inconsistency shall be resolved by giving
precedence in the following order:
• Applicable federal and state of Washington statutes and regulations
• Special Terms and Conditions
General Terms and Conditions
• Attachment A — Scope of Work
• Attachment B — Budget
• Attachment C — Certification of the Availability of Funds to Complete the Project
• Attachment D — Certification of the Payment and Reporting of Prevailing Wages
7. REPORTING OF JOBS FUNDED
The Grantee shall provide to Commerce each quarter a completed "2012 Energy Efficiency Grants
Quarterly Report" which will identify the number of jobs funded by the Project. For the purposes of
this agreement, "quarterly' shall be defined as follows:
• July through September, 2012
• October through December, 2012
• January through March, 2013
■ April through June, 2013
■ July through September, 2013
• October through December, 2013
• January through March, 2014
• April through June, 2014
The Grantee shall submit the 2012 Energy Efficiency Grants Quarterly Report to Commerce as
applicable within ten (10) calendar days following the end of each quarter until all work on the Project
has been completed and no additional jobs are being funded. Commerce will email a Report form to
each Grantee when the contract has been executed.
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SPECIAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
8. ONGOING MEASUREMENT & VERIFICATION
Measurement and Verification of Energy Savings (ESPC Projects)
After the Project has been completed and the Notice of the Commencement of Energy Savings has
been issued, ongoing measurement and verification (M&V) begins, in order to verify that the
guaranteed energy savings occurs.
The recommended minimum length of M&V is three (3) years. However, Grantees are encouraged to
have M&V performed for the length of the financing term to extend the energy savings guaranteed for
the Project. The proposed length of the ongoing M&V period should be identified in the Energy
Services Proposal (ESP).
The Grantee shall submit an annual Measurement and Verification Report to Commerce by February
15th of each year for the prior calendar year until all measurement and verification requirements have
been satisfied.
Each Measurement and Verification Report shall include:
1. An executive summary that gives a brief description of the energy efficiency measures (EEMS)
identified and if the guaranteed energy savings were achieved;
2. The report shall include the following:
a. Calculation of the energy savings verified for each measure.
b. A brief description of any changes to the subject facilities. If these changes have an
impact on the verified energy savings, this needs to be identified and the impact
calculated.
c. Any other deliverables that were proposed, such as greenhouse gas reduction
calculations or building energy performance benchmarks.
d. All physical measurements that were performed (i.e., boiler combustion test results,
motor runtime logs). If necessary, these can be attached via appendix to the main report.
e. A list of remedies the ESCO will provide if the guaranteed savings are not being met.
Specify whether and by when the physical aspects of the project that led to the loss of
savings will be corrected. Specify how the ESCO will reimburse the Grantee for the
identified differences between the verified savings and the guaranteed level of savings.
Specify the timing of when the ESCO will make the reimbursement to the Grantee.
The guaranteed minimum energy savings identified in the ESP and the verified actual energy savings
should be identified in tabular form for easy reference by the Grantee and Commerce. The energy
savings should be:
1. Identified in the native unit of measure for each utility commodity, such as kWh or Therms for
both guaranteed and verified energy savings;
2. Translated into utility bill dollar savings; and
3. Denoted in dollars, using the energy rates in effect at the time the ESP was prepared.
Measurement and Verification of Energy Savings (Non-ESPC Projects)
Projects that do not use Energy Savings Performance Contracting must verify energy and operational
cost savings for ten (10) years or until the energy and operational cost savings pay for the Project,
whichever is shorter. They must also follow the Department of Enterprise Services (DES) energy
savings performance contracting project guidelines. Third -party verification must be performed by one
of the following:
1. An energy savings performance contractor selected by DES through a request for qualifications;
2. A licensed engineer that is a certified energy manager;
3. A project resource conservation manager; or
4. An educational service district resource conservation manager.
SPECIAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
The Grantee shall submit an annual Measurement and Verification Report to Commerce by February
15th of each year for the prior calendar year until all M&V requirements have been satisfied.
Each Measurement and Verification Report shall include:
1. An executive summary that gives a brief description of the energy efficiency measures (EEMS)
identified and if the estimated energy savings were achieved;
2. The report shall include the following:
a. Calculation of the energy savings verified for each measure.
b. A brief description of any changes to the subject facilities. If these changes have an
impact on the verified energy savings, this needs to be identified and the impact
calculated.
c. Any other deliverables that were proposed, such as greenhouse gas reduction
calculations or building energy performance benchmarks.
d. All physical measurements that were performed (i.e., boiler combustion test results,
motor runtime logs). If necessary, these can be attached via appendix to the main report.
The estimated energy savings identified in the final Investment Grade Audit and the verified energy
savings should be identified in tabular form for easy reference by the Grantee and Commerce. The
energy savings should be:
1. Identified in the native unit of measure for each utility commodity, such as kWh or Therms for
both estimated and verified energy savings;
2. Translated into utility bill dollar savings; and
3. Denoted in dollars, using the energy rates in effect at the time of the report was completed.
9. REAPPROPRIATION
A. The parties hereto understand and agree that any state funds not expended by June 30, 2013,
will lapse on that date unless specifically reappropriated by the Washington State Legislature. If
funds are so reappropriated, the state's obligation under the terms of this contract shall be
contingent upon the terms of such reappropriation.
B. In the event any funds awarded under this contract are reappropriated for use in a future
biennium, COMMERCE reserves the right to assign a reasonable share of any such
reappropriation for administrative costs.
C:
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
1. DEFINITIONS
As used throughout this Agreement, the following terms shall have the meaning set forth below:
A. "Authorized Representative" shall mean the Director and/or the designee authorized in writing to
act on the Director's behalf.
B. "COMMERCE" shall mean the Department of Commerce or its successor agency.
C. "Grantee" shall mean the entity identified on the face sheet performing service(s) under this
Agreement, and shall include all employees and agents of the Grantee.
D. "Personal Information" shall mean information identifiable to any person, including, but not limited
to, information that relates to a person's name, health, finances, education, business, use or
receipt of governmental services or other activities, addresses, telephone numbers, social
security numbers, driver license numbers, other identifying numbers, and any financial identifiers.
E. "State" shall mean the state of Washington.
F. "Subgrantee" shall mean one not an employee of the Grantee, who is performing all or part of
those services under this Agreement under a separate Agreement with the Grantee. The terms
"subgrantee" and "subgrantees" means subgrantee(s) in any tier.
2. ADVANCE PAYMENTS PROHIBITED
No payments in advance of or in anticipation of goods or services to be provided under this
Agreement shall be made by COMMERCE.
3. ALL WRITINGS CONTAINED HEREIN
This Agreement contains all the terms and conditions agreed upon by the parties. No other
understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to
exist or to bind any of the parties hereto.
4. AMENDMENTS
This Agreement may be amended by mutual agreement of the parties. Such amendments shall not
be binding unless they are in writing and signed by personnel authorized to bind each of the parties.
5. AMERICANS WITH DISABILITIES ACT [ADA] OF 1990, PUBLIC LAW 101-336._al_so referred to
as the "ADA' 28 CFR Part 35
The Grantee must comply with the ADA, which provides comprehensive civil rights protection to
individuals with disabilities in the areas of employment, public accommodations, state and local
government services, and telecommunications.
6. APPROVAL
This Agreement shall be subject to the written approval of COMMERCE's Authorized Representative
and shall not be binding until so approved. The Agreement may be altered, amended, or waived only
by a written amendment executed by both parties.
7. ASSIGNMENT
Neither this Agreement, nor any claim arising under this Agreement, shall be transferred or assigned
by the Grantee without prior written consent of COMMERCE.
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
ATTORNEYS'FEES
Unless expressly permitted under another provision of the Agreement, in the event of litigation or
other action brought to enforce Agreement terms, each party agrees to bear its own attorneys fees
and costs.
9. AUDIT
A. General Requirements
Grantees are to procure audit services based on the following guidelines.
The Grantee shall maintain its records and accounts so as to facilitate the audit requirement and
shall ensure that Subgrantees also maintain auditable records.
The Grantee is responsible for any audit exceptions incurred by its own organization or that of its
Subgrantees.
COMMERCE reserves the right to recover from the Grantee all disallowed costs resulting from
the audit.
As applicable, Grantees required to have an audit must ensure the audits are performed in
accordance with Generally Accepted Auditing Standards (GAAS); Government Auditing
Standards (the Revised Yellow Book) developed by the Comptroller General.
Responses to any unresolved management findings and disallowed or questioned costs shall be
included with the audit report. The Grantee must respond to COMMERCE requests for
information or corrective action concerning audit issues within thirty (30) days of the date of
request.
B. State Funds Requirements
Grantees expending $100,000 or more in total state funds in a fiscal year must have a financial
audit as defined by Government Auditing Standards (The Revised Yellow Book) and according to
Generally Accepted Auditing Standards (GAAS). The Schedule of State Financial Assistance
must be included. The schedule includes:
Grantor agency name
State program name
BARS account number
Grantor
COMMERCE Grant number
Grant award amount including amendments (total grant award)
Beginning balance
Current year revenues
Current year expenditures
Ending balance
Program total
If the Grantee is a state or local government entity, the Office of the State Auditor shall conduct
the audit. Audits of non-profit organizations are to be conducted by a certified public accountant
selected by the Grantee.
The Grantee shall include the above audit requirements in any subgrants.
In any case, the Grantee's financial records must be available for review by COMMERCE.
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GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
C. Documentation Requirements
The Grantee must send a copy of any required audit Reporting Package as described in OMB
Circular A-133, Part C, Section 320(c) no later than nine (9) months after the end of the Grantee's
fiscal year(s) to:
Department of Commerce
ATTN: Audit Review and Resolution Office
1011 Plum Street SE
PO Box 48300
Olympia WA 98504-8300
In addition to sending a copy of the audit, when applicable, the Grantee must include:
Corrective action plan for audit findings within three (3) months of the audit being
received by COMMERCE.
Copy of the Management Letter.
10. CONFIDENTIALITY/SAFEGUARDING OF INFORMATION
A. "Confidential Information" as used in this section includes:
1. All material provided to the Grantee by COMMERCE that is designated as "confidential" by
COMMERCE;
2. All material produced by the Grantee that is designated as "confidential" by COMMERCE and
3. All personal information in the possession of the Grantee that may not be disclosed under
state or federal law. "Personal information" includes but is not limited to information related to
a person's name, health, finances, education, business, use of government services,
addresses, telephone numbers, social security number, driver's license number and other
identifying numbers, and "Protected Health Information" under the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA).
B. The Grantee shall comply with all state and federal laws related to the use, sharing, transfer, sale,
or disclosure of Confidential Information. The Grantee shall use Confidential Information solely for
the purposes of this Agreement and shall not use, share, transfer, sell or disclose any
Confidential Information to any third party except with the prior written consent of COMMERCE or
as may be required by law. The Grantee shall take all necessary steps to assure that Confidential
Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of
Confidential Information or violation of any state or federal laws related thereto. Upon request,
the Grantee shall provide COMMERCE with its policies and procedures on confidentiality.
COMMERCE may require changes to such policies and procedures as they apply to this
Agreement whenever the Grantor reasonably determines that changes are necessary to prevent
unauthorized disclosures. The Grantee shall make the changes within the time period specified
by COMMERCE. Upon request, the Grantee shall immediately return to COMMERCE any
Confidential Information that COMMERCE reasonably determines has not been adequately
protected by the Grantee _against unauthorized disclosure.
C. Unauthorized Use or Disclosure. The Grantee shall notify COMMERCE within five (5) working
days of any unauthorized use or disclosure of any confidential information, and shall take
necessary steps to mitigate the harmful effects of such use or disclosure.
11. CONFORMANCE
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.
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
12. COPYRIGHT PROVISIONS
Unless otherwise provided, all Materials produced under this Agreement shall be considered "works
for hire" as defined by the U.S. Copyright Act and shall be owned by the Grantor. COMMERCE shall
be considered the author of such Materials. In the event the Materials are not considered "works for
hire" under the U.S. Copyright laws, the Grantee hereby irrevocably assigns all right, title, and interest
in all Materials, including all intellectual property rights, moral rights, and rights of publicity to
COMMERCE effective from the moment of creation of such Materials.
"Materials" means all items in any format and includes, but is not limited to, data, reports, documents,
pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes,
and/or sound reproductions. "Ownership" includes the right to copyright, patent, register and the
ability to transfer these rights.
For Materials that are delivered under the Agreement, but that incorporate pre-existing materials not
produced under the Agreement, the Grantee hereby grants to COMMERCE a nonexclusive, royalty -
free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce,
distribute, prepare derivative works, publicly perform, and publicly display. The Grantee warrants and
represents that the Grantee has all rights and permissions, including intellectual property rights, moral
rights and rights of publicity, necessary to grant such a license to COMMERCE.
The Grantee shall exert all reasonable effort to advise COMMERCE, at the time of delivery of
Materials furnished under this Agreement, of all known or potential invasions of privacy contained
therein and of any portion of such document which was not produced in the performance of this
Agreement. The Grantee shall provide COMMERCE with prompt written notice of each notice or
claim of infringement received by the Grantee with respect to any Materials delivered under this
Agreement. COMMERCE shall have the right to modify or remove any restrictive markings placed
upon the Materials by the Grantee.
13. DISPUTES
Except as otherwise provided in this Agreement, when a dispute arises between the parties and it
cannot be resolved by direct negotiation, either party may request a dispute hearing with
COMMERCE's Director, who may designate a neutral person to decide the dispute.
The request for a dispute hearing must:
• be in writing;
• state the disputed issues;
state the relative positions of the parties,
• state the Grantee's name, address, and Agreement number; and
• be mailed to the Director and the other party's (respondent's) Agreement Representative
within three (3) working days after the parties agree that they cannot resolve the dispute.
The respondent shall send a written answer to the requestor's statement to both the Director or the
Director's designee and the requestor within five (5)] working days.
The Director or designee shall review the written statements and reply in writing to both parties within
ten (10) working days. The Director or designee may extend this period if necessary by notifying the
parties.
The decision shall not be admissible in any succeeding judicial or quasi-judicial proceeding.
The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial
tribunal.
Nothing in this Agreement shall be construed to limit the parties' choice of a mutually acceptable
alternate dispute resolution (ADR) method in addition to the dispute hearing procedure outlined
above.
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GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
14. DUPLICATE PAYMENT
The Grantee certifies that work to be performed under this Agreement does not duplicate any work to
be charged against any other Agreement, subgrant, or other source.
15. ETHICS/CONFLICTS OF INTEREST
In performing under this Agreement, the Grantee shall assure compliance with the Ethics in Public
Service Act (Chapter 42.52 RCW) and any other applicable state or federal law related to ethics or
conflicts of interest.
16. GOVERNING LAW AND VENUE
This Agreement shall be construed and interpreted in accordance with the laws of the state of
Washington, and the venue of any action brought hereunder shall be in the Superior Court for
Thurston County.
17. INDEMNIFICATION
To the fullest extent permitted by law, the Grantee shall indemnify, defend, and hold harmless the
state of Washington, COMMERCE, all other agencies of the state and all officers, agents and
employees of the state, from and against all claims or damages for injuries to persons or property or
death arising out of or incident to the Grantee's performance or failure to perform the Agreement.
The Grantee's obligation to indemnify, defend, and hold harmless includes any claim by the Grantee's
agents, employees, representatives, or any Subgrantee or its agents, employees, or representatives.
The Grantee's obligation to indemnify, defend, and hold harmless shall not be eliminated by any
actual or alleged concurrent negligence of the state or its agents, agencies, employees and officers.
Subgrants shall include a comprehensive indemnification clause holding harmless the Grantee,
COMMERCE, the state of Washington, its officers, employees and authorized agents.
The Grantee waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend
and hold harmless the state and its agencies, officers, agents or employees.
18. INDEPENDENT CAPACITY OF THE GRANTEE
The parties intend that an independent contractor relationship will be created by this Agreement. The
Grantee and its employees or agents performing under this Agreement are not employees or agents
of the state of Washington or COMMERCE. The Grantee will not hold itself out as or claim to be an
officer or employee of COMMERCE or of the state of Washington by reason hereof, nor will the
Grantee make any claim of right, privilege or benefit which would accrue to such officer or employee
under law. Conduct and control of the work will be solely with the Grantee.
19. INDUSTRIAL INSURANCE COVERAGE
The Grantee shall comply with all applicable provisions of Title 51 RCW, Industrial Insurance. If the
Grantee fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf
of its employees as may be required by law, COMMERCE may collect from the Grantee the full
amount payable to the Industrial Insurance Accident Fund. COMMERCE may deduct the amount
owed by the Grantee to the accident fund from the amount payable to the Grantee by COMMERCE
under this Agreement, and transmit the deducted amount to the Department of Labor and Industries,
(L&I) Division of Insurance Services. This provision does not waive any of L&I's rights to collect from
the Grantee.
5
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
20. LAWS
The Grantee shall comply with all applicable laws, ordinances, codes, regulations and policies of local
and state and federal governments, as now or hereafter amended including, but not limited to:
Washington State Laws and Regulations
A. Affirmative action, RCW 41.06.020 (11).
B. Boards of directors or officers of non-profit corporations — Liability - Limitations, RCW 4.24.264.
C. Disclosure -campaign finances -lobbying, Chapter 42.17 RCW.
D. Discrimination -human rights commission, Chapter 49.60 RCW.
E. Ethics in public service, Chapter 42.52 RCW.
F. Office of minority and women's business enterprises, Chapter 39.19 RCW and Chapter 326-02
WAC.
G. Open public meetings act, Chapter 42.30 RCW.
H. Public records act, Chapter 42.56 RCW.
I. State budgeting, accounting, and reporting system, Chapter 43.88 RCW.
21. LICENSING, ACCREDITATION AND REGISTRATION
The Grantee shall comply with all applicable local, state, and federal licensing, accreditation and
registration requirements or standards necessary for the performance of this Agreement.
22. LIMITATION OF AUTHORITY
Only the Authorized Representative or Authorized Representative's designee by writing (designation
to be made prior to action) shall have the express, implied, or apparent authority to alter, amend,
modify, or waive any clause or condition of this Agreement.
23. NONCOMPLIANCE WITH NONDISCRIMINATION LAWS
During the performance of this Agreement, the Grantee shall comply with all federal, state, and local
nondiscrimination laws, regulations and policies. In the event of the Grantee's non-compliance or
refusal to comply with any nondiscrimination law, regulation or policy, this Agreement may be
rescinded, canceled or terminated in whole or in part, and the Grantee may be declared ineligible for
further Agreements with the state. The Grantee shall, however, be given a reasonable time in which
to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes"
procedure set forth herein.
24. POLITICAL ACTIVITIES
Political activity of Grantee employees and officers are limited by the State Campaign Finances and
Lobbying provisions of Chapter 42.17 RCW and the Federal Hatch Act, 5 USC 1501 - 1508.
No funds may be used under this Agreement for working for or against ballot measures or for or
against the candidacy of any person for public office.
25. PROHIBITION AGAINST PAYMENT OF BONUS OR COMMISSION
The funds provided under this Agreement shall not be used in payment of any bonus or commission
for the purpose of obtaining approval of the application for such funds or any other approval or
concurrence under this Agreement provided, however, that reasonable fees or bona fide technical
consultant, managerial, or other such services, other than actual solicitation, are not hereby
prohibited if otherwise eligible as project costs.
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
26. PUBLICITY
The Grantee agrees not to publish or use any advertising or publicity materials in which the state of
Washington or COMMERCE's name is mentioned, or language used from which the connection with
the state of Washington's or COMMERCE's name may reasonably be inferred or implied, without the
prior written consent of COMMERCE.
27. RECAPTURE DISINCENTIVE
In the event that the Grantee fails to perform this Agreement in accordance with state laws, federal
laws, and/or the provisions of this Agreement, COMMERCE reserves the right to recapture funds in
an amount to compensate COMMERCE for the noncompliance in addition to any other remedies
available at law or in equity.
Repayment by the Grantee of funds under this recapture provision shall occur within the time period
specified by COMMERCE. In the alternative, COMMERCE may recapture such funds from payments
due under this Agreement.
28. RECORDS MAINTENANCE OUTPUT
The Grantee shall maintain all books, records, documents, data and other evidence relating to this
Agreement and performance of the services described herein, including but not limited to accounting
procedures and practices which sufficiently and properly reflect all direct and indirect costs of any
nature expended in the performance of this Agreement. Grantee shall retain such records for a
period of six years following the date of final payment.
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records
shall be retained until all litigation, claims, or audit findings involving the records have been finally
resolved.
29. REGISTRATION WITH DEPARTMENT OF REVENUE
If required by law, the Grantee shall complete registration with the Washington State Department of
Revenue.
30. RIGHT OF INSPECTION
At no additional cost all records relating to the Grantee's performance under this Agreement shall be
subject at all reasonable times to inspection, review, and audit by COMMERCE, the Office of the
State Auditor, and federal and state officials so authorized by law, in order to monitor and evaluate
performance, compliance, and quality assurance under this Agreement. The Grantee shall provide
access to its facilities for this purpose.
31. SAVINGS
In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way
after the effective date of this Agreement and prior to normal completion, COMMERCE may terminate
the Agreement under the "Termination for Convenience" clause, without the ten business day notice
requirement. In lieu of termination, the Agreement may be amended to reflect the new funding
limitations and conditions.
32. 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 that can be given
effect without the invalid provision, if such remainder conforms to the requirements of law and the
fundamental purpose of this Agreement and to this end the provisions of this Agreement are declared
to be severable.
7
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
33. SUBGRANTING
The Grantee may only subgrant work contemplated under this Agreement if it obtains the prior written
approval of COMMERCE.
If COMMERCE approves subgranting, the Grantee shall maintain written procedures related to
subgranting, as well as copies of all subgrants and records related to subgrants. For cause,
COMMERCE in writing may: (a) require the Grantee to amend its subgranting procedures as they
relate to this Agreement; (b) prohibit the Grantee from subgranting with a particular person or entity;
or (c) require the Grantee to rescind or amend a subgrant.
Every subgrant shall bind the Subgrantee to follow all applicable terms of this Agreement. The
Grantee is responsible to COMMERCE if the Subgrantee fails to comply with any applicable term or
condition of this Agreement. The Grantee shall appropriately monitor the activities of the Subgrantee
to assure fiscal conditions of this Agreement. In no event shall the existence of a subgrant operate to
release or reduce the liability of the Grantee to COMMERCE for any breach in the performance of the
Grantee's duties.
Every subgrant shall include a term that COMMERCE and the State of Washington are not liable for
claims or damages arising from a Subgrantee's performance of the subgrant.
34. SURVIVAL
The terms, conditions, and warranties contained in this Agreement that by their sense and context are
intended to survive the completion of the performance, cancellation or termination of this Agreement
shall so survive.
35. TAXES
All payments accrued on account of payroll taxes, unemployment contributions, the Grantee's income
or gross receipts, any other taxes, insurance or expenses for the Grantee or its staff shall be the sole
responsibility of the Grantee.
36. TERMINATION FOR CAUSE / SUSPENSION DISINCENTIVE
In event COMMERCE determines that the Grantee failed to comply with any term or condition of this
Agreement, COMMERCE may terminate the Agreement in whole or in part upon written notice to the
Grantee. Such termination shall be deemed "for cause." Termination shall take effect on the date
specified in the notice.
In the alternative, COMMERCE upon written notice may allow the Grantee a specific period of time in
which to correct the non-compliance. During the corrective -action time period, COMMERCE may
suspend further payment to the Grantee in whole or in part, or may restrict the Grantee's right to
perform duties under this Agreement. Failure by the Grantee to take timely corrective action shall
allow COMMERCE to terminate the Grant upon written notice to the Grantee.
"Termination for Cause" shall be deemed a "Termination for Convenience" when COMMERCE
determines that the Grantee did not fail to comply with the terms of the Agreement or when
COMMERCE determines the failure was not caused by the Grantee's actions or negligence.
If the Agreement is terminated for cause, the Grantee shall be liable for damages as authorized by
law, including, but not limited to, any cost difference between the original Agreement and the
replacement Agreement, as well as all costs associated with entering into the replacement
Agreement (i.e., competitive bidding, mailing, advertising, and staff time).
0
GENERAL TERMS AND CONDITIONS
GENERAL GRANT
STATE FUNDS
37. TERMINATION FOR CONVENIENCE
Except as otherwise provided in this Agreement COMMERCE may, by ten (10) business days written
notice, beginning on the second day after the mailing, terminate this Agreement, in whole or in part. If
this Agreement is so terminated, COMMERCE shall be liable only for payment required under the
terms of this Agreement for services rendered or goods delivered prior to the effective date of
termination.
38. TERMINATION PROCEDURES
After receipt of a notice of termination, except as otherwise directed by COMMERCE, the Grantee
shall:
A. Stop work under the Agreement on the date and to the extent specified in thm nntire-
B. Place no further orders or subgrants for materials, services, or facilities related to the Agreement;
C. Assign to COMMERCE all of the rights, title, and interest of the Grantee under the orders and
subgrants so terminated, in which case COMMERCE has the right, at its discretion, to settle or
pay any or all claims arising out of the termination of such orders and subgrants. Any attempt by
the Grantee to settle such claims must have the prior written approval of COMMERCE; and
D. Preserve and transfer any materials, Agreement deliverables and/or COMMERCE property in the
Grantee's possession as directed by COMMERCE.
Upon termination of the Agreement, COMMERCE shall pay the Grantee for any service provided by
the Grantee under the Agreement prior to the date of termination. COMMERCE may withhold any
amount due as COMMERCE reasonably determines is necessary to protect COMMERCE against
potential loss or liability resulting from the termination. COMMERCE shall pay any withheld amount
to the Grantee if COMMERCE later determines that loss or liability will not occur.
The rights and remedies of COMMERCE under this section are in addition to any other rights and
remedies provided under this Agreement or otherwise provided under law.
39. WAIVER
Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or
breach. Any waiver shall not be construed to be a modification of the terms of this Agreement unless
stated to be such in writing and signed by Authorized Representative of COMMERCE.
N
Attachment A
Scope of Work
The Grantee will use these grant funds to implement operational cost savings improvements at their local
government facilities and related�rojc-cts that result in energy and operational cost savings in accordance
with ESB 5127, Laws of 2012, 2" Special Session, Ch. 1, Sec. 301. The work will be performed in
accordance with the more detailed scope of work found in the City of Edmonds, Phase 3 Energy Services
Proposal, Project Number 026-2012-01, prepared by Ameresco Quantum, Inc., dated April 16, 2013,
incorporated herein by reference as if specifically set forth.
The Grantee, by its signature, certifies that the declaration set forth above has been reviewed and
approved by the Grantee's governing body as of the date and year written below.
r
GR TEE
TITLE
6-- h- /zs-
DATE
Attachment B
Budget
Line Item
Amount
Audit, Design, Construction, Bonding
$547,903.00
ESCO Overhead and Profit
$82,416.00
Contingency
$22,894.00
Sales Tax
$62,055.00
M & V Ameresco and DES
$8 415.00
DES Project Management Fees
$35,000.00
Total Contracted Amount:
$758,683.00
The Grantee, by its signature, certifies that the Project Budget set forth above has been reviewed and
approved by the Grantee's governing body or board of directors, as applicable, as of the date and year
written below.
t
Gw
GFZANTE
TITLE
&-- /0 -,.210
DATE
Attachment C
Certification of the Availability of Funds to Complete the Project
Non -State Funds
Amount
Total
Treasurey Dept 10- ear loan
$280,176.00
City of Edmonds Cash
$230,565.00
Total Utility Incentive (PSE and SnoPUD
$60,376.00
Total Non -State Funds
$571,117.00
$571,117.00
State Funds
State Capital Budget - 2012 Energy Efficiency Grant
$187,566.00
$187,566.00
Total Non -State and State Sources
$758,683.00
The Grantee, by its signature, certifies that project funding from sources other than those provided by this
contract and identified above has been reviewed and approved by the Grantee's governing body or board
of directors, as applicable, and has either been expended for eligible Project expenses, or is committed in
writing and available and will remain committed and available solely and specifically for carrying out the
purposes of this Project as described in elsewhere in this contract, as of the date and year written below.
The Grantee shall maintain records sufficient to evidence that it has expended or has access to the funds
needed to complete the Project, and shall make such records available for COMMERCE'S review upon
reasonable request.
L4 o ram.
TITLE
DATE
Attachment D
Certification of the Payment and Reporting of Prevailing Wages
The Grantee, by its signature, certifies that all contractors and subcontractors performing work on the
Project shall comply with prevailing wage laws set forth in Chapter 39.12 RCW, as June 15, 2011,
including but not limited to the filing of the "Statement of Intent to Pay Prevailing Wages" and "Affidavit of
Wages Paid" as required by RCW 39.12.040. The Grantee shall maintain records sufficient to evidence
compliance with Chapter 39.12 RCW, and shall make such records available for COMMERCE'S review
upon request.
If any state funds are used by the Grantee for the purpose of construction, applicable State Prevailing
Wages must be paid.
The Grantee, by its signature, certifies that the declaration set forth above has been reviewed and
approved by the Grantee's governing body as of the date and year written below.
r
GRANTEE
TITLE
me-t.,vIV—
1 _ /o - 20 13 DATE
STATE OF WAS HINGTON
DEPARTMENT OF COMMERCE
1011 Plum Street SE • PO Box 42525 • Olympia, Washington 98504-2525 • (360) 725-4000
www.commerce.wa.gov
June 4, 2013
Mr. Jim Stevens
Facilities Maintenance Manager
City of Edmonds
7110 - 210th St. SW
Edmonds, WA 98026
Dear Mr. Stevens:
Enclosed for your review and signature are two originals of proposed Contract Number
13-93222-046 between the Department of Commerce and the City of Edmonds. The purpose of
the contract is to provide your organization with funds appropriated under the 2012 Energy
Efficiency Grants for Local Governments program solely and specifically for the City of
Edmonds lighting retrofits, HVAC, and controls project.
Please review the contract carefully. If it meets with your approval, please have the designated
individual sign and date where indicated (the Contract Face Sheet and Attachments A through D)
and return both copies to me. We will sign them and return a fully executed original to you for
your records, along with other documents for reimbursement and reporting.
If you have any questions or need additional information, please call me at (360) 725-4045.
1 can also be reached by email at tom.stilz@commerce.wa.gov.
Sincerely,
Tom Stilz, Project Manager
Capital Programs
Enclosures
cc: Daniel Aarthun, Capital Programs Manager
® (IJ