HomeMy WebLinkAbout042015_ca04JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
CONSENT AGENDA REQUEST
TO:
Board of Commissioners
Philip Morley, County Administrator
FROM:
Carl Smith, DCD Director
Donna Frostholm, Associate Planne
DATE:
April 20, 2015
RE:
No Net Loss Grant/Environmental Consulting Services Agreement
to Complete Grant Work
STATEMENT OF ISSUE: Jefferson County Department of Community Development (DCD)
obtained a No Net Loss (NNL) grant from the Environmental Protection Agency (EPA), with
Clallam County as the Grant Administrator, in 2010. Much of the work on this grant was
delayed until the new Shoreline Master Program (SMP) became effective. Due to staffing levels
and the priority of getting permits issued, the grant was amended so that most of the remaining
work will be completed by a consultant. The EPA has amended the contract with Clallam
County so that $195,000 of grant funds can be used by DCD to hire a consultant and $5,000 of
the grant can be used by Clallam County to administer the grant through December 31, 2016.
DCD is requesting that the Board of County Commissioners (BoCC) authorize the use of EPA
grant funds to hire a consultant. DCD has selected a consultant, Environmental Science
Associates (ESA), to take the lead in completing grant tasks and deliverables. This grant
revision does not alter the agreement between Jefferson County and Clallam County.
ANALYSIS: It was determined by DCD Management and the County Administrator that a
consultant would be needed to complete the work on this grant. DCD and Clallam County
worked to revise the grant through the EPA, and in December 2014, DCD received word that
the EPA approved the amendment. This revision included a grant extension to December 31,
2016 and a modification for the majority of the work to be completed by a consultant.
FISCAL IMPACT: Of the $330,000 awarded to Jefferson County in the NNL grant,
$195,000 will be used for ESA to take the lead in completing grant tasks and deliverables and
$5,000 will be used for Clallam County to continue administering the grant in 2015 and 2016,
for a total of $200,000 of the EPA grant funds to be used as `pass through' funds. Some of the
grant funds have been spent by DCD to work on the grant and $85,000 remains in the budget
for DCD to manage the grant through December 31, 2016. The use of a consultant is revenue
neutral as funds from the EPA grant will be used to pay the consultant to complete the grant
and for Clallam County to administer the grant (i.e., complete federal grant paperwork for
grant and submit invoices to the EPA).
RECOMMENDATION: DCD recommends that the BoCC approve the use of $195,000 of
the EPA grant to hire ESA to implement and complete the NNL grant and $5,000 of the grant
for Clallam County to admister the grant.
DEPARTMENT CONTACT: Donna Frostholm, Associate Planner/NNL Project Manager
a
ounty Admkis ator
Date
y «ll�
PROFESSIONAL SERVICES AGREEMENT FOR
ENVIRONMENTAL SCIENCE ASSOCIATES
THIS AGREEMENT is entered into between the County of Jefferson, a municipal corporation,
hereinafter referred to as "the County ", and Environmental Science Associates (ESA), hereinafter
referred to as "the Consultant ", in consideration of the mutual benefits, terms, and conditions
hereinafter specified. The Consultant has teamed with two other consultants, which are referred
to as Subconsultants in this Agreement.
Project Designation. The Consultant is retained by the County to take the lead in
implementing and completing a No Net Loss (NNL) Grant. The County shall coordinate
with the Consultant to complete the work under this grant, and it shall be the
responsibility of the Consultant to further coordinate with the Subconsultants to ensure
that grant tasks and deliverables are completed in a timely manner.
2. Scope of Services. Consultant agrees to perform the services, identified on Exhibit "A"
attached hereto, including the provision of all labor.
Time for Performance. Work under this contract shall commence upon the giving of
written notice by the County to the Consultant to proceed. Consultant receipt of a
Purchase Order shall constitute said notice. Consultant shall perform all services and
provide all work product required pursuant to this agreement on the dates listed on
Exhibit "A"
4. Payment. The Consultant shall be paid by the County for completed work and for
services rendered under this agreement as follows:
a. Payment for the work provided by Consultant shall be made as provided on
Exhibit "B" attached hereto, provided that the total amount of payment to
Consultant shall not exceed $195,000 without express written modification of the
agreement signed by the County.
b. The $195,000 budgeted as compensation for the Consultant is not subject to
alteration, therefore any cost overruns incurred by the Consultant to complete the
grant tasks and deliverables (Exhibit A) shall be borne solely by the Consultant.
C. The consultant may submit invoices to the County once per month during the
progress of the work for partial payment for project completed to date, up to 80%
of total project costs. Such vouchers will be checked by the County, and upon
approval thereof, payment will be made to the Consultant in the amount approved.
d. Final payment of any balance due the Consultant of the total contract price earned
will be made promptly upon its ascertainment and verification by the County after
the completion of the work under this agreement and its acceptance by the
CONSULTANT AGREEMENT
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County.
e. Payment as provided in this section shall be full compensation for work
performed, services rendered and for all materials, supplies, equipment and
incidentals necessary to complete the work.
f. The Consultant's records and accounts pertaining to this agreement are to be kept
available for inspection by representatives of the County and the state for a period
of three (3) years after final payments. Copies shall be made available upon
request.
5. Ownership and Use of Documents. All documents, drawings, specifications and other
materials produced by the Consultant in connection with the services rendered under this
agreement shall be the property of the County whether the project for which they are
made is executed or not. The Consultant shall be permitted to retain copies, including
reproducible copies, of drawings and specifications for information, reference and use in
connection with Consultant's endeavors.
Compliance with laws. Consultant shall, in performing the services contemplated by this
agreement, faithfully observe and comply with all federal, state, and local laws,
ordinances and regulations, applicable to the services to be rendered under this
agreement.
Indemnification. Consultant shall indemnify, defend and hold harmless the County, its
officers, agents and employees, from and against any and all claims, losses or liability, or
any portion thereof, including attorneys fees and costs, arising from injury or death to
persons, including injuries, sickness, disease or death to Consultant's own employees, or
damage to property occasioned by a negligent act, omission or failure of the Consultant.
8. Insurance.
The Consultant shall obtain and keep in force during the terms of the Agreement, policies
of insurance as follows:
If and only if the Consultant employs any person(s) in the status of employee or
employees separate from or in addition to any equity owners, sole proprietor, partners,
owners or shareholders of the Consultant, Worker's Compensation Insurance in an
amount or amounts that are not less than the required statutory minimum(s) as established
by the State of Washington or the state or province where the Consultant is located.
Commercial Automobile Liability Insurance providing bodily injury and property
damage liability coverage for all owned and non -owned vehicles assigned to or used in
the performance of the work for a combined single limit of not less than $500,000 each
occurrence with the COUNTY named as an additional insured in connection with the
CONSULTANT'S performance of the contract.
General Commercial Liability Insurance in an amount not less than a single limit of one
CONSULTANT AGREEMENT
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million dollars ($1,000,000) per occurrence and a aggregate of not less than two (2) times
the occurrence amount ($2,000,000.00 minimum) for bodily injury, including death and
property damage, unless a greater amount is specified in the contract specifications. The
insurance coverage shall contain no limitations on the scope of the protection provided
and include the following minimum coverage:
a. Broad Form Property Damage, with no employee exclusion;
b. Personal Injury Liability, including extended bodily injury;
C. Broad Form Contractual /Commercial Liability — including completed operations;
d. Premises — Operations Liability (M &C);
C. Independent Contractors and Subconsultants ;
f Blanket Contractual Liability.
Such insurance coverage shall be evidenced by one of the following methods:
* Certificate of Insurance;
* Self - insurance through an irrevocable Letter of Credit from a qualified financial
institution.
Certificates of coverage as required by this section shall be delivered to the County
within fifteen (15) days of execution of this agreement.
Any deductibles or self - insured retention shall be declared to and approved by the County
prior to the approval of the contract by the County. At the option of the County, the
insurer shall reduce or eliminate deductibles or self - insured retention or the Consultant
shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
The Consultant shall include all Subconsultants as insured under its insurance policies or
shall furnish separate certificates and endorsements for each subcontractor. All insurance
provisions to be contained in any agreements or contracts with Subconsultants shall be
subject to all of the requirements stated herein.
Failure of the Consultant to take out and/or maintain any required insurance shall not
relieve The Consultant from any liability under the Agreement, nor shall the insurance
requirements be construed to conflict with or otherwise limit the obligations concerning
indemnification.
It is agreed by the parties that insurers shall have no right of recovery or subrogation
against the County (including its employees and other agents and agencies), it being the
intention of the parties that the insurance policies so affected shall protect both parties
and be primary coverage for any and all losses covered by the above described insurance.
It is further agreed by the parties that insurance companies issuing the policy or policies
shall have no recourse against the County (including its employees and other agents and
agencies) for payment of any premiums or for assessments under any form of policy. It
is further agreed by the parties that any and all deductibles in the above described
insurance policies shall be assumed by and be at the sole risk of the Consultant.
CONSULTANT AGREEMENT
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It is agreed by the parties that judgments for which the County may be liable, in excess of
insured amounts provided herein, or any portion thereof, may be withheld from payment
due, or to become due, to the Consultant until such time as the Consultant shall furnish
additional security covering such judgment as may be determined by the County.
The County reserves the right to request additional insurance on an individual basis for
extra hazardous contracts and specific service agreements.
Any coverage for third party liability claims provided to the County by a "Risk Pool"
created pursuant to Ch. 48.62 RC W shall be non - contributory with respect to any policy
of insurance the Consultant must provide in order to comply with this Agreement.
If the proof of insurance or certificate indicating the County is an "additional insured" to
a policy obtained by the Consultant refers to an endorsement (by number or name) but
does not provide the full text of that endorsement, then it shall be the obligation of the
Consultant to obtain the full text of that endorsement and forward that full text to the
County.
The County may, upon the Consultant's failure to comply with all provisions of this
contract relating to insurance, withhold payment or compensation that would otherwise
be due to the Consultant.
9. Independent Contractor. The Consultant and the County agree that the Consultant is an
independent contractor with respect to the services provided pursuant to this agreement.
Nothing in this agreement shall be considered to create the relationship of employer and
employee between the parties hereto. Neither Consultant nor any employee of
Consultant shall be entitled to any benefits accorded County employees by virtue of the
services provided under this agreement. The County shall not be responsible for
withholding or otherwise deducting federal income tax or social security or for
contributing to the state industrial insurance program, otherwise assuming the duties of
an employer with respect to Consultant, or any employee of Consultant.
10. Covenant Aeainst Contingent Fees. The Consultant warrants that the firm has not
employed or retained any company or person, other than a bonafide employee working
solely for the Consultant (or Subconsultants), to solicit or secure this contract, and that
the firm has not paid or agreed to pay any company or person, other than a bonafide
employee working solely for the Consultant (or Subconsultants), any fee, commission,
percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting
from the award or making of this contract. For breach or violation of this warranty, the
County shall have the right to annul this contract without liability or, in its discretion to
deduct from the contract price or consideration, or otherwise recover, the full amount of
such fee, commission, percentage, brokerage fee, gift, or contingent fee.
11. Discrimination Prohibited. The Consultant, with regard to the work performed by it
under this agreement, will not discriminate on the grounds of race, color, national origin,
CONSULTANT AGREEMENT
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religion, creed, age, sex or the presence of any physical or sensory handicap in the
selection and retention of employees or procurement of materials or supplies.
12. Assignment. The Consultant shall not sublet or assign any of the services covered by this
agreement without the express written consent of the County, except that the Consultant
may assign work to the two Subconsultants included in the proposal, Coastal Geologic
Service and Marine Surveys & Assessments, without any further consent from the
County.
13. Non - Waiver. Waiver by the County of any provision of this agreement or any time
limitation provided for in this agreement shall not constitute a waiver of any other
provision.
14. Termination.
a. The County reserves the right to terminate this agreement at any time by giving
ten (10) days written notice to the Consultant.
b. In the event of the death of a member, partner or officer of the Consultant, or any
of its supervisory personnel assigned to the project, the surviving members of the
Consultant hereby agree to complete the work under the terms of this agreement,
if requested to do so by the County. This section shall not be a bar to
renegotiations of this agreement between surviving members of the Consultant
and the County, if the County so chooses.
15. Notices.
Notices to the County of Jefferson shall be sent to the following address:
Jefferson County Department of Community Development
621 Sheridan Street
Port Townsend, Washington 98368
Notices to Consultant shall be sent to the following address:
ESA
5309 Shilshole Avenue NW
Suite 200
Seattle, Washington 98107
16. Intearated Agreement. This Agreement together with attachments or addenda, represents
the entire and integrated agreement between the County and the Consultant and
supersedes all prior negotiations, representations, or agreements written or oral. This
agreement may be amended only by written instrument signed by both County and
Consultant.
CONSULTANT AGREEMENT
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DATED this
SIGNATURE PAGE
SIGNATURE PAGE
day of
Name of Consultant
Consultant's Representative (Please print)
(Signature)
Title
Date
20
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
David Sullivan, Chair
Phil Johnson, Member
Kathleen Kler. Member
Approved as to fo only:
David Alvarez ate
Deputy Prosecuting Attorney
Carl Smith
DCD Director
CONSULTANT AGREEMENT
Date
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EXHIBIT A
SCOPE OF SERVICES
The scope of service is based on Component 3 of the grant from the Environmental Protection
Agency. The Consultant shall assist the County in completing these tasks and deliverables. The
process of completing the grant tasks and deliverables is to be coordinated with Department of
Community Development, Component 3 of the No Net Loss is as follows:
Component 3 — Develop tools for implementing and monitoring adopted SMPs
Timeline: January 2011 — December 2012 1 Lead: Jefferson County
The purpose of this task is to assist Jefferson County, and by extension other local governments, in
administering their adopted SMPs. Jefferson County will solicit feedback from Whatcom County and Port
Townsend on how to account for NNL in making shoreline management decisions following SMP
development/adoption and what barriers exist. This will allow Jefferson County to identify resources
necessary to effectively implement an SMP. Other activities funded by this grant include:
a. Using the County's existing shoreline inventory information to develop an initial report on at least 3
ecological indicators at the reach/ drift cell scale and supplementing inventory information as needed
based on Ciallam County indicators work (in Component 2).
b. Reviewing recent permit history from the previous year and comparing it to aerial photos /inventory
information.
c. Field- checking development sites where necessary to identify changes to N -NL indicators and
determining whether changes are consistent or inconsistent with the SMP.
d. Documenting permit decision issues and identifying tools needed to support effective decision
making. Developing solutions and strategies for inconsistent actions.
e. Reviewing restoration plans in consultation with key restoration partners and linking restoration
actions to changes in key indicators at the shoreline reach / drift cell scale.
f. Developing and implementing a technical assistance, monitoring, and enforcement program and
testing its effectiveness in relationship to the NNL framework. The technical assistance and
monitoring work will be coordinated for at least 50% of new development proposals with the
proposed Watershed Stewardship Resource Center and Clean Water District Activities in Jefferson
County.
The primary deliverables of this component include:
a. Initial report on ecological indicators at the reach / drift cell scale to supplement Jefferson County's
existing shoreline inventory.
b. Written findings on review of permit activity to guide future decision- making.
c. Written guidance and templates for applying NNL indicators in the context of SMP implementation
and monitoring for use in/by other jurisdictions.
d. One year of technical assistance to shoreline property owners and one year of compliance monitoring
and enforcement using NNL indicators.
General Assumptions:
The following assumptions apply to completing all tasks and providing all deliverables listed in
the scope of work:
• The Consultant will develop a general work plan to guide project activities upon project
initiation, and will review the work plan with the County to get buy -in on approach at
project initiation and at regular intervals throughout the project period.
CONSULTANT AGREEMENT
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• The Consultant project manager will provide conference call updates to the County every
two weeks throughout the project period.
• The County will lead all administration, communication and coordination to manage
grant reporting, including tracking and reporting of grant efforts as need to meet grant
requirements.
• All draft deliverables will be provided in electronic format. Electronic documents will be
delivered in both PDF and MS Word format. Final documents will be delivered free of
"draft" watermarks or other draft markings, with one hardcopy provided along with
electronic format.
• ESA will provide draft materials to the County one week prior to scheduled meetings.
• A single (1) review cycle is assumed for all deliverables / interim work reviewed by the
County and associated parties; the County will be responsible for consolidating all
comments for each deliverable into a single document for transmittal to the Consultant.
• The timeframe for a review cycle (from transmittal of the document(s) for review to the
County to receipt of consolidated County comments) is assumed to be four weeks.
• Unless otherwise noted, the Consultant will participate in required meetings via phone
conference as a first option and efforts will be made to consolidate meetings throughout
the project to save travel expenses.
• The Scope of Services indicates that Jefferson County will solicit feedback from
Whatcom County and Port Townsend. The Consultant will make efforts to solicit
feedback in support of the County; however cannot guarantee response or participation
from neighboring jurisdictions.
• In addition to hours allocated for workshops, open houses and site visits (detailed below),
the Consultant assumes 5 in- person meetings with County and other parties throughout
the project period; participation from 2 Consultant staff is assumed for each in- person
meeting.
Assumptions for Specific Scope Activities
The following assumptions apply to completing specific activities and providing all
deliverables listed in the scope of work:
• Shoreline inventory efforts will be completed using existing and available information
and data on hydrologic conditions, soils, land cover, impervious surfaces, marine
shoreline processes, parcel information and habitat conditions / species use. The County
will provide and/or assist in identification of preferred base data (GIS files) and
information.
• A maximum of 70 Consultant hours are allocated for field- checking of development sites
(as part of effort to identity changes to NNL indicators and consistency with SMP).
• In addition to hours allocated for site visits, the Consultant assumes preparation for and
participation in 4 technical assistance workshops or other open house efforts; 40 hours of
Consultant time is allocated for each workshop or open house.
• A maximum of 360 Consultant hours are allocated for site visits to support
implementation of the compliance monitoring and enforcement program.
All Consultant site visits will be completed with a minimum of two staff-, one Consultant staff
may be paired with County staff or staff from another partnering agency, as feasible.
CONSULTANT AGREEMENT
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PAYMENT TO CONSULTANT
The Consultant will provide the County with an invoice for its services rendered by the 10th of
each month. The ESA invoices shall include fees charged to the grant by the two
Subconsultants: Coastal Geologic Services and Marine Surveys & Assessments. The Consultant
shall be paid within 60 days of the county's receipt of the monthly invoice. The Consultant will
also provide with each invoice a summary of the costs incurred, the name and job title of the
person(s) performing the work, the work performed to date of invoicing by task number.
CONSULTANT AGREEMENT
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7
PO - 00JOB801 - 3 Pace 1
4—
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GRANT NUMBER (FAIN): 00JO8801
U.S. ENVIRONMENTAL
PROTECTION AGENCY
MODIFICATION NUMBER: 3
PROGRAM CODE: PO
DATE OF AWARD
TYPE ACTION
MA DATE
MAILING LING
�
No Cost Amendment
12115/2074
i3
Assistance Amendment
PAYMENT METHOD:
ACH#
F
X0554
RECIPIENT TYPE:
Send Payment Request to:
County
Las Vegas Finance Center
FAX # 702 - 798 -2423
RECIPIENT:
PAYEE:
Clallam County
Clallam County
223 E 4th Street, Suite 5
223 E 4th Street, Suite 5
Port Angeles, WA 98362
Port Angeles, WA 98362
EIN: 91- 6001298
PROJECT MANAGER
EPA PROJECT OFFICER
EPA GRANT SPECIALIST
Cathy Lear
Carrie Byron
Greg Luchey
223 E 4th Street, Suite 5
1200 Sixth Avenue, Suite 900, OW W -137
1200 Sixth Avenue, Suite 900, OMP -173
Port Angeles, WA 98362
Seattle, WA 98101
Seattle, WA 98101
E -Mail: clear@co.clallam.wa.us
E -Mail: byron.carrie @epa.gov
E -Mail: Luchey.Greg @epa.gov
Phone: 360 - 417 -2361
Phone: 206 -553 -1760
Phone: 206- 553 -2967
PROJECT TITLE AND EXPLANATION OF CHANGES
Enhancing Shoreline Protection
This amendment changes the agreement as follows: Approves the re- budgeting request dated 10/17/14 and extends the projecVbudget period to 12/31/2016
only.
Please review Terms and Conditions for changes.
BUDGET PERIOD
PROJECT PERIOD
TOTAL BUDGET PERIOD COST
TOTAL PROJECT PERIOD COST
05/01/2010 - 12/31/2016
05/01/2010 - 12131/2016
$1,329,915.00
$1,329,915.00
NOTICE OF AWARD
Based on your Application dated 04/07/2010 including all modifications and amendments, the United States acting by and through the US Environmental
Protection Agency (EPA) hereby awards $0. EPA agrees to cost -share 75_9 % of all approved budget period costs incurred, up to and not exceeding total
federal funding of $999,915. Recipient's signature is not required on this agreement. The recipient demonstrates its commitment to carry out this award by
either: 1) drawing down funds within 21 days after the EPA award or amendment mailing date; or 2) not filing a notice of disagreement with the award terms
and conditions within 21 days after the EPA award or amendment mailing date. If the recipient disagrees with the terms and conditions specified in this award,
the authorized representative of the recipient must furnish a notice of disagreement to the EPA Award Official within 21 days after the EPA award or
amendment mailing date. In case of disagreement, and until the disagreement is resolved, the recipient should not draw down on the funds provided by this
awardiamendment, and any costs incurred by the recipient are at its own risk. This agreement is subject to applicable EPA statutory provisions. The
applicable regulatory provisions are 40 CFR Chapter 1, Subchapter B, and all terms and conditions of this agreement and any attachments.
ISSUING OFFICE (GRANTS MANAGEMENT OFFICE)
AWARD APPROVAL OFFICE
ORGANIZATION / ADDRESS
ORGANIZATION I ADDRESS
EPA Region 10
U.S. EPA, Region 10
Mail Code: OMP -173
Office of Water and Watersheds
1200 Sixth Avenue, Suite 900
1200 Sixth Avenue, Suite 900
Seattle, WA 98101
Seattle, WA 98101
THE UNITED STATES OF AMERICA BY THE
U.S. ENVIRONMENTAL PROTECTION AGENCY
Digital signature applied by EPA Award Official Gregory Luchey - EPA Grant Specialist
DATE
12/15/2014
4—
r
EPA Funding Information PO- 00J08801 -3 Page
FUNDS
FORMER AWARD
THIS ACTION
AMENDEDTOTAL
EPA Amount This Action
$ 999,915
$ 0
$ 999,915
EPA In -Kind Amount
$ 0
$
$ 0
Unexpended Prior Year Balance
$ 0
$
$ 0
Other Federal Funds
$ 0
$
$ 0
Recipient Contribution
$ 330,000
$
$ 330,000
State Contribution
$ 0
$
$ 0
Local Contribution
$ 0
$
$ 0
Other Contribution
$ 0
$
$ 0
Allowable Project Cost
$ 1,329,915
$01
$ 1,329,915
Assistance Program (CFDA)
Statutory Authority
Regulatory Authority
66.120 - Puget Sound Watershed Management
Clean Water Act: Sec. 320
40 CFR PTS 31 & 35 SUBPT P
Assistance
FY 2009 Omnibus Appropriations Act (PL 111 -8)
Site /Project
I
Cost
I Organization
Public Law 111 -88
Department of Interior
Environment and Related Agencies Appropriations
Act 2010
Fiscal
Site Name
Req No
FY
Approp.
Code
Budget
Organization
PRC
Object
Class
Site /Project
I
Cost
I Organization
Obligation /
Deobligation
PO - 00J08801 - 3 Page 3
Budget Summary Page
Table A- Object Class Category
(Non- construction)
Total Approved Allowable
Budget Period Cost
1. Personnel
$172,217
2. Fringe Benefits
$55,109
3. Travel
$3,213
4. Equipment
$1,000
6. Supplies
$913
6. Conumclual
$896,842
7. Construction
$0
S. Other
$150,152
9. Total Direct Charges
$1,279,446
10. Indirect Costs: % Bass
$50,469
11. Total (Share: Recipient 24.81 % Federal 75.19 %.)
$1,329,915
12. Total Approved Assistance Amount
$999,915
13. Program Income
$0
14. Total EPA Amount Awarded This Action
$0
15. Total EPA Amount Awarded To Date
$999,915
PO - 00J08801 - 3 Page 4
Administrative Conditions
Administrative Conditions Changes:
14. UTILIZATION OF SMALL, MINORITY AND WOMEN'S BUSINESS ENTERPRISES (Revised)
GENERAL COMPLIANCE, 40 CFR, Part 33
The recipient agrees to comply with the requirements of EPA's Disadvantaged Business Enterprise (DBE)
Program for procurement activities under assistance agreements, contained in 40 CFR, Part 33.
SIX GOOD FAITH EFFORTS, 40 CFR, Part 33, Subpart C
Pursuant to 40 CFR, Section 33.301, the recipient agrees to make the following good faith efforts
whenever procuring construction, equipment, services and supplies under an EPA financial assistance
agreement, and to require that sub - recipients, loan recipients, and prime contractors also comply.
Records documenting compliance with the six good faith efforts shall be retained:
(a) Ensure DBEs 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 will include placing DBEs on solicitation lists and soliciting them whenever they are
potential sources.
(b) Make information on forthcoming opportunities available to DBEs and arrange time frames for
contracts and establish delivery schedules, where the requirements permit, in a way that
encourages and facilitates participation by DBEs in the competitive process. This includes,
whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days
before the bid or proposal closing date.
(c) Consider in the contracting process whether firms competing for large contracts could
subcontract with DBEs. For Indian Tribal, State and local Government recipients, this will include
dividing total requirements when economically feasible into smaller tasks or quantities to permit
maximum participation by DBEs in the competitive process.
(d) Encourage contracting with a consortium of DBEs when a contract is too large for one of these
firms to handle individually.
(e) Use the services and assistance of the SBA and the Minority Business Development Agency
of the Department of Commerce.
(f) If the prime contractor awards subcontracts, require the prime contractor to take the steps in
paragraphs (a) through (e) of this section.
MBE /WBE REPORTING, 40 CFR, Part 33, Subpart E
MBE/W BE reporting is required in annual reports. Reporting is required for assistance agreements where
there are funds budgeted for procuring construction, equipment, services and supplies, including funds
budgeted for direct procurement by the recipient or procurement under subawards or loans in the "Other"
category that exceed the threshold amount of $150,000., including amendments and /or modifications.
Based on EPA's review of the planned budget, this award meets the conditions above and is subject to the
Disadvantaged Business Enterprise (DBE) Program reporting requirements. However, if recipient believes
this award does not meet these conditions, it must provide a justification and budget detail within 21 days
of the award date clearly demonstrating that, based on the planned budget, this award is not subject to the
DBE reporting requirements to Region 10 DBE Coordinator.
The recipient agrees to complete and submit a "MBE/W BE Utilization Under Federal Grants, Cooperative
Agreements and Interagency Agreements" report (EPA Form 5700 -52A) on an annual basis. All
procurement actions are reportable, not just that portion which exceeds $150,000.
When completing the annual report, recipients are instructed to check the box titled "annual" in section 1 B
of the form. For the final report, recipients are instructed to check the box indicated for the "last report" of
the project in section 1 B of the form. Annual reports are due by October 30°' of each year. Final reports
are due by October 30" or 90 days after the end of the project period, whichever comes first.
The reporting requirement is based on total procurements. Recipients with expended and/or budgeted
funds for procurement are required to report annually whether the planned procurements take place
during the reporting period or not. If no budgeted procurements take place during the reporting period, the
recipient should check the box in section 5B when completing the form.
The current EPA Form 5700 -52A can be found at the EPA Office of Small Business Program's Home
Page at http: / /www.epa.ciov /osbp /dbe reportino.htm.
This provision represents an approved deviation from the MBE/WBE reporting requirements as described
in 40 CFR, Part 33, Section 33.502; however, the other requirements outlined in 40 CFR Part 33 remain in
effect, including the Good Faith Effort requirements as described in 40 CFR Part 33 Subpart C, and Fair
Share Objectives negotiation as described in 40 CFR Part 33 Subpart D.
CONTRACT ADMINISTRATION PROVISIONS, 40 CFR, Section 33.302
The recipient agrees to comply with the contract administration provisions of 40 CFR, Section 33.302.
BIDDERS LIST, 40 CFR, Section 33.501(b) and (c)
Recipients of a Continuing Environmental Program Grant or other annual reporting grant, agree to create
and maintain a bidders list. Recipients of an EPA financial assistance agreement to capitalize a revolving
loan fund also agree to require entities receiving identified loans to create and maintain a bidders list if the
recipient of the loan is subject to, or chooses to follow, competitive bidding requirements. Please see 40
CFR, Section 33.501 (b) and (c) for specific requirements and exemptions.
FAIR SHARE OBJECTIVES, 40 CFR, Part 33, Subpart D
1. For Grant Awards $250.000 or Less
This assistance agreement is a Technical Assistance Grant (TAG); or the award amount is $250,000 or
less; or the total dollar amount of all of the recipient's financial assistance agreements from EPA in the
current Federal fiscal year is $250,000 or less. Therefore, the recipient of this assistance agreement is
exempt from the fair share objective requirements of 40 CFR, Part 33, Subpart D, and is not required to
negotiate fair share objectives /goals for the utilization of MBE V BEs in its procurements.
2. For Recipients Accepting Goals
A recipient must negotiate with the appropriate EPA award official, or his /her designee, fair share
objectives for MBE and W BE participation in procurement under the financial assistance agreements.
In accordance with 40 CFR, Section 33.411 some recipients may be exempt from the fair share objectives
requirements as described in 40 CFR, Part 33, Subpart D. Recipients should work with their DBE
coordinator, if they think their organization may qualify for an exemption.
Accepting the Fair Share Objectives /Goals of Another Recipient
The dollar amount of this assistance agreement, or the total dollar amount of all of the recipient's financial
assistance agreements in the current federal fiscal year from EPA is $250,000, or more. The recipient
accepts the applicable MBE/W BE fair share objectives /goals negotiated with EPA. The Region 10 fair
share objectives /goals can be found: http: / /www.er)a.gov /osbp /pdfs /ri 0 fair share goals.odf.
By signing this financial assistance agreement, the recipient is accepting the fair share objectives /goals
and attests to the fact that it is purchasing the same or similar construction, supplies, services and
equipment, in the same or similar relevant geographic buying market.
Negotiating Fair Share ObjectiveslGoals, 40 CFR, Section 33.404
The recipient has the option to negotiate its own MBE/WBE fair share objectives /goals. If the recipient
wishes to negotiate its own MBE/WBE fair share objectives/goals, the recipient agrees to submit proposed
MBE/WBE objectives /goals based on an availability analysis, or disparity study, of qualified MBEs and
WBEs in their relevant geographic buying market for construction, services, supplies and equipment.
The submission of proposed fair share goals with the supporting analysis or disparity study means that the
recipient is not accepting the fair share objectives /goals of another recipient. The recipient agrees to
submit proposed fair share objectives /goals, together with the supporting availability analysis or disparity
study, to the Regional MBE/WBE Coordinator within 120 days of its acceptance of the financial assistance
award. EPA will respond to the proposed fair share objective /goals within 30 days of receiving the
submission. If proposed fair share objective /goals are not received within the 120 day time frame, the
recipient may not expend its EPA funds for procurements until the proposed fair share objective /goals are
submitted.
3. For Recipients with Established Goals
The recipient must negotiate with the appropriate EPA award official, or his /her designee, fair share
objectives for MBE and W BE participation in procurement under the financial assistance agreements.
In accordance with 40 CFR, Section 33.411 some recipients may be exempt from the fair share objectives
requirements described in 40 CFR, Part 33, Subpart D. Recipients should work with their DBE
coordinator, if they think their organization may qualify for an exemption.
Current Fair Share Objective /Goal
The dollar amount of this assistance agreement or the total dollar amount of all of the recipient's financial
assistance agreements in the current federal fiscal year from EPA is $250,000, or more. The Region 10
fair share objectives /goals can be found: http: / /www.ei)a.ciov /osbp /pdfs /rl0 fair share ooals.pdf.
Negotiating Fair Share Objectives /Goals
In accordance with 40 CFR, Part 33, Subpart D, established goals /objectives remain in effect for three
fiscal years unless there are significant changes to the data supporting the fair share objectives. The
recipient is required to follow requirements as outlined in 40 CFR Part 33, Subpart D when renegotiating
the fair share objectives /goals.
4. For DWSRF, CWSRF and BROWNFIELDS RLF Recipients ONLY
Objective /Goals of Loan Recipients
As a recipient of an EPA financial assistance agreement to capitalize revolving loan funds, the recipient
agrees to either apply its own fair share objectives negotiated with EPA to identified loans using a
substantially similar relevant geographic market, or negotiate separate fair share objectives with its
identified loan recipients. These separate objectives /goals must be based on demonstrable evidence of
the availability of MBEs and WBEs in accordance with 40 CFR, Part 33, Subpart D.
The recipient agrees that if procurements will occur over more than one year, the recipient may choose to
apply the fair share objective in place either for the year in which the identified loan is awarded or for the
year in which the procurement action occurs. The recipient must specify this choice in the financial
assistance agreement, or incorporate it by reference therein.
R10 DBE Coordinator
Greg Luchey at (206) 553 -2967; Email: 1_uchev.Greg0)eoa.gov. MBEIWBE reports should be send to the
EPA Region 10, Grants and Interagency Agreements Unit, 1200 Sixth Avenue, Suite 900, OMP -173,
Seattle, WA 98101 or FAX to (206) 553 -4957.
All Administrative Conditions Remain the Same
1. CIVIL RIGHTS OBLIGATIONS
GENERAL
This term and condition incorporates by reference the signed assurance provided by the recipient's
authorized representative on: 1) EPA Form 4700 -4, "Preaward Compliance Review Report for All
Applicants and Recipients Requesting EPA Financial Assistance "; and 2) Standard Form 4248 or
Standard Form 424D, as applicable. These assurances and this term and condition obligate the recipient
to comply fully with applicable civil rights statutes and implementing EPA regulations.
STATUTORY REQUIREMENTS
In carrying out this agreement, the recipient must comply with:
Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, and
national origin, including limited English proficiency (LEP), by entities receiving Federal financial
assistance.
Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against persons with
disabilities by entities receiving Federal financial assistance; and
The Age Discrimination Act of 1975, which prohibits age discrimination by entities receiving
Federal financial assistance.
If the recipient is conducting an education program under this agreement, it must also comply with:
• Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex
in education programs and activities operated by entities receiving Federal financial assistance.
If this agreement is funded with financial assistance under the Clean Water Act (CWA), the recipient must
also comply with:
• Section 13 of the Federal Water Pollution Control Act Amendments of 1972, which prohibits
discrimination on the basis of sex in CWA- funded programs or activities.
REGULATORY REQUIREMENTS
The recipient agrees to comply with all applicable EPA civil rights regulations, including:
• For Title IX obligations, 40 C.F.R. Part 5; and
• For Title VI, Section 504, Age Discrimination Act, and Section 13 obligations, 40 C.F.R. Part 7.
• As noted on the EPA Form 4700 -4 signed by the recipient's authorized representative, these
regulations establish specific requirements including maintaining compliance information,
establishing grievance procedures, designating a Civil Rights Coordinator, and providing notices
of non - discrimination.
TITLE VI — LEP, Public Participation and Affirmative Compliance Obligation
As a recipient of EPA financial assistance, you are required by Title VI of the Civil Rights Act to
provide meaningful access to LEP individuals. In implementing that requirement, the recipient
agrees to use as a guide the Office of Civil Rights (OCR) document entitled "Guidance to
Environmental Protection Agency Financial Assistance Recipients Regarding Title VI Prohibition
Against National Origin Discrimination Affecting Limited English Proficient Persons. " The
guidance can be found at
http: /Jfrweboate. access. goo .00vlcoi- binloetdoc.coi?dbname =2004 reoister &docid= fr25in04 -79.od
If the recipient is administering permitting programs under this agreement, the recipient agrees to
use as a guide OCR's Title VI Public Involvement Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs. The Guidance can be found at
http://edocket.access.ai)o.gov/2006/pdf/06-2691.i3df.
In accepting this assistance agreement, the recipient acknowledges it has an affirmative
obligation to implement effective Title VI compliance programs and ensure that its actions do not
involve discriminatory treatment and do not have discriminatory effects even when facially neutral.
The recipient must be prepared to demonstrate to EPA that such compliance programs exist and
are being implemented or to otherwise demonstrate how it is meeting its Title VI obligations.
Programmatic Conditions
All Programmatic Conditions Remain the Same
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