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HomeMy WebLinkAboutResolution No. 2022-71KENAI CITY OF KENAI RESOLUTION NO. 2022-71 Sponsored by: Administration A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A GRANT FROM THE ALASKA DEPARTMENT OF COMMERCE, COMMUNITY, AND ECONOMIC DEVELOPMENT, DIVISION OF COMMUNITY AND REGIONAL AFFAIRS FOR THE KENAI BLUFF STABILIZATION PROJECT. WHEREAS, the Kenai Bluff Stabilization project has been the number one priority of the City of Kenai for over 30 years; and, WHEREAS, in February of 2022 the project received federal funding in the amount of $28 million; and, WHEREAS, Federal funding will cover 65% of the total cost of construction of the Project, and, WHEREAS, the City's match requirement towards construction of this project is 35%, and, WHEREAS, the City has been pursuing funding for our local match through multiple sources, including the State of Alaska; and, WHEREAS, during the State fiscal year 2022 legislative session, $6.5 million was included in the State capital budget to support the Project; and, WHEREAS, the City has received the grant agreement from the Department of Commerce, Community, and Economic Development Division of Community and Regional Affairs for execution; and, WHEREAS, it is in the best interests of the City of Kenai to accept a grant from the State of Alaska in the amount of $6.5 million to support the local match requirement of 35%. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA: Section 1. That the City Manager is authorized to execute the attached grant agreement from the Department of Commerce, Community, and Economic Development Division of Community and Regional Affairs. Section 2. That this Resolution takes effect immediately upon passage. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, THIS 5T" DAY OF OCTOBER, 2022. Brian Gabriel Sr., Mayor ATTEST: Michell aner, MMC, City Clerk New Text Underlined; [DELETED TEXT BRACKETED] I OV KENAI City of Kenai 1 210 Fidalgo Ave, Kenai, AK 99611-7794 1907.283.75351 www.kenakity MEMORANDUM TO: Mayor Brian Gabriel and City Council Members FROM: Paul Ostrander, City Manager DATE: September 29, 2022 SUBJECT: Ordinance 3319-2022 and Resolution 2022-71 - Kenai Bluffs Stabilization, State of Alaska $6.5 Million Grant This memo is in support of both Ordinance 3319-2022 and Resolution 2022-71, legislation that authorizes the City Manager to execute a grant in the amount of $6.5 million from the Alaska Department of Commerce, Community, and Economic Development, Division of Community and Regional Affairs and appropriates the money into the Kenai Bluff Erosion Capital Project Fund to support construction of the Project. During the last State Legislative Session, the City was successful in getting this grant included in the State's Capital Budget. This grant is an important component of the City's required match of 35% of the total cost of the Project. With this grant, the City will have secured the necessary money to meet our required match if the project's total cost, design and construction, does not exceed $35,000,000. As we approach the completion of the efforts to get this important project built, a summary of the process that the City has navigated over the past 6 years is included for you information. February 17, 2017 — City of Kenai attended the Tentatively Selected Plan (TSP) presentation given by Alaska USACE to the USACE HQ in Washington D.C. Signed Directors Report was scheduled for November 10, 2017. June 10, 2017 — Schedule for Signed Directors Report slipped to April 31, 2018. June 19, 2017 — Draft integrated feasibility report, environmental assessment and draft Finding of No Significant Impact (FONSI) was issued for agency and public comment. July 5/6, 2017 — Public meetings held in Kenai, AK at the City Council Meeting on July 5 and at the Kenai Visitor and Cultural Center in Kenai on July 6. August 22, 2017 — Realization by the USACE that additional federal funding was necessary in the amount of $150,000 for the USACE to meet its 50% funding requirement to complete the r-= L feasibility report. The City of Kenai provided their full funding amount of $560,000 in February 2016. A congressional reprogramming request was submitted through OMB. February 22, 2018 — OMB approves reprogramming request. The reprogramming request was delayed to the point that authorization for the project — expiring on May 12, 2018 — would lapse prior to Directors Report signature. March 6, 2018 — Letter sent to Committee on Appropriations and the respective Committee Chairs. April 4, 2018 — USACE Alaska District recognizes the need to request a waiver from the Assistant Secretary of the Army of Civil Works to extend the project authorization beyond May 12, 2018, but does not have sufficient funds left to process the waiver. April 12, 2018 — Reprogramming approval signed by Representative Marcy Kaptur and Representative Mike Simpson, appropriating an additional $150,000 of Federal money to the project. April 26, 2018 — Time extension waiver package submitted to USACE HQ. April 31, 2018 — Second scheduled signature date for Directors Report is missed. Because of the significant lapse in project funding, other projects were re -prioritized in front of the Kenai project; hence, the scheduled date for the signed Directors Report is changed to January 23, 2019, to allow time for USACE Alaska District to take the project back up and finalize the feasibility report package. May 11, 2018 — Time extension granted by R.D. James, Assistant Secretary of the Army of Civil Works, increasing the total study time for the Kenai Bluffs Bank Stabilization Feasibility Study from 36 months to 44 months. November 15, 2018 — Final integrated feasibility report and environmental assessment and finding of no significant impact submitted from USACE Alaska District to USACE HQ. January 23, 2019 — Third scheduled signature date for Director's Report was missed. Re- scheduled for signature in late February. March 1, 2019 — Fourth scheduled signature date for Director's Report was missed. Re- scheduled for April 30, 2019. April 3, 2019 — Final submittal from USACE Alaska District to USACE HQ of feasibility report. Of note: according to USACE staff, nothing of substance changed from the feasibility report submitted on November 15, 2018 to this final report. April 10, 2019 — Director's Report was signed by USACE HQ Director Of Civil Works, James C. Dalton, P.E. This was the same day that Senator Murkowski testified in front of the appropriations subcommittee to the Assistant Secretary of the Army (Civil Works), R.D. James and to the Commanding General and Chief of Engineers Lieutenant General Todd Semonite, questioning why the USACE process was so difficult to navigate, using the Kenai Bluffs Stabilization project as an example. / Page 2 of 4 The City of Kenai I www.6nai.city May 20, 2019 — Request from Alaska District to USACE HQ, signed by Colonel Phillip J. Borders to initiate Preconstruction Engineering and Design (PED) phase for the project with attachments from the City of Kenai including a letter committing the City to fully fund the PED phase at an estimated cost of $1,000,000 and a Resolution from the Kenai City Council stating the same. June 27, 2019 — A Finding of No Significant Impact (FONSI) Was signed by Colonel Phillip J. Borders, eliminating the need to prepare an Environmental Impact Statement. July 31, 2019 — The City sent a request to the USACE Alaska District to complete the Design Agreement. This agreement outlines the responsibilities of the non -Federal sponsor and the USACE during the design phase. September 15, 2020 — It took over 14 months to get the Design Agreement signed. Consistent communication with the USACE and our congressional delegation occurred during the entire period, but what should have been a much quicker turnaround labored for many months — far beyond what was expected or is reasonable. Although the Design Agreement implies that Federal Funding will be provided for the 65% match of the design effort, no Federal funding has been provided to date. February 2021 — The City issued an RFP for the design of the project planning to fund the entire design with City dollars, a $1,000,000 commitment with the intent of being reimbursed the 65% Federal obligation during construction. August 2021 — HDR Engineering begins the design of the project. As the design begins, there is a limited amount of Federal funding that the Alaska District of the Corps of Engineers has to support the efforts of the City during the design process. They are able to provide limited input, putting the City at risk because without Corps oversight, the design effort may not meet Corps requirements in all aspects. This could result in the Corps not accepting all or a portion of the design for construction. Because the Corps signed the Design Agreement in September of 2020, the City was hopeful that the full Federal share of $650,000 would be provided prior to the design effort beginning. Even though no Federal funding occurred, and considering the risks involved, the City strongly felt that it was essential to begin the design effort to keep the project moving forward. December 2021 — At the City's request, Governor Dunleavy included $6.5 million in State funding to support the City's efforts in the design and construction of our Project. If the legislature and the voters approve the Governor's proposed General Obligation Bond, this increases the total amount of match money the City has available to $9.5 million. This would be a sufficient match amount to construct an approximately $27 million project, with $17.5 million in Federal funding. February 2022 — The project received $28 million in Federal funding through the Infrastructure Bill. This funding is sufficient to support a $42 million project, comprised of $28 million in Federal funding and $14 million in local funding. April 2022 — Now with sufficient funding, the Army Corps of Engineers, Alaska District kicks off their full engagement in support of the design efforts of the Project. This engagement will slow the ultimate completion of the design, with design approval expected late in the 2022 calendar year, but will assure that the Project as designed meets the requirements of the Corps. Page 3 of 4 / The City of Kenai I www.kenai.city r-� June 2022 — Governor Dunleavy signed the State of Alaska Fiscal Year 2023 budget. Included in the capital budget was $6.5 million in support of the Kenai Bluff Stabilization Project. September 2022 — The Federally committed funds of up to $28 million establishes the high end of total Project costs of $42 million. The Project will be funded 65% by the Army Corps of Engineers, and 35% through a local match. Our current construction estimates indicate that it is likely that the Project will not exceed $35 million. The City has secured $9.7 million in State funding, comprised of the $6.5 million that was included in the States fiscal year 2023 Capital Budget and $3.2 million that remains from State grants from 2012 and 2015. The City has also committed $2.55 million from our General Fund that was included in our 2023-2027 Capital Plan. This brings the total amount of secured match that the City has to $12.25 million, sufficient to support a total Project cost of $35 million, matching $22.75 million in Federal funding. Page 4 of 4 •� The City of Kenai I www.kenai.city THE STATE °fALASKA GOVERNOR MIKE DUNLEAVY September 20, 2022 Paul Ostrander, City Manager City of Kenai 210 Fidalgo Avenue Kenai, AK 99669 Department of Commerce, Community, VIA E-MAIL RE: FY 2023 Designated Legislative Grant Agreement Dear Mr. Ostrander: and Economic Development Division of Community and Regional Affairs Anchorage 550 West Seventh Avenue, Suite 1640 Anchorage, Alaska 99501 Main: 907.269.4581 Fax: 907.269.4539 Enclosed you will find a grant agreement between City of Kenai and Department of Commerce, Community, and Economic Development for Kenai River Bluff Stabilization. In order to receive grant funds, a grant agreement must be executed. Please carefully review the agreement, sign, date, and return the cover page to my attention. Upon receipt and approval, a fully executed copy will be sent to you for your file. If you have any questions, please contact me via phone at (907) 269-7906 or email Lindsay.reese&alaskagov. Sincerely, Lindsay Reese Grants Administrator II Enclosure: U Qti of TkE DEPARTMENT OF COMMERCE, COMMUNITY, AND ECONOMIC DEVELOPMENT �fv •ram DIVISION OF COMMUNITY AND REGIONAL AFFAIRS F � Designated Legislative Grant Program Of Grant Agreement ALAF Grant Agreement Number Vendor Number Amount of State Funds 23-DC-007 CIK84891 $6,500,000.00 GAE Appropriation Unit Lapse Date Project Title 085681004 06/30/2027 Kenai River Bluff Stabilization Grantee Department Contact Person Name Name City of Kenai Lindsay Reese Street/PO Box Tide 210 Fidalgo Avenue Grants Administrator 2 City/State/Zip Street/PO Box Kenai, AK 99669 550 W. 7th Avenue Ste 1650 Contact Person City/State/Zip Paul Ostrander, City Manager Anchoraec. Alaska 99501 Phone Fax Phone Fax 907-283-7535 907-283-3014 1 907-269-7906 907-269-4563 Email Email Postrandex kenai.ci lindsay.reese@alaska.gov AGREEMENT The Alaska Department of Commerce, Community, and Economic Development, Division of Community and Regional Affairs (hereinafter `Department) and Ci1y of Kenai (hereinafter `Grantee) agree as set forth herein. Section I. The Department shall pay the Grantee for the performance of the project work under the terms outlined in this Agreement. The amount of the payment is based upon project expenses incurred, which are authorized under this Agreement. In no event shall the payment exceed $66,500,000.00. Section II. The Grantee shall perform all of the work required by this Agreement. Section III. The work to be performed under this Agreement begins July 1. 2022 and shall be completed no later than June 30, 2027. Section W. The Agreement consists of this page and the following: ATTACHMENTS AMENDMENTS Attachment A: Scope of Work Any fully executed amendments to this Agreement 1. Project Description 2. Project Budget APPENDIX 3. Project Management Appendix A: State Laws and Regulations 4. Reporting Attachment B: Payment Method Attachment C: Standard Provisions Grantee Department Signature Signature Printed Name and Tide Printed Name and Title Paul Ostrander, City Manager Pauletta Bourne, Grants Administrator 3 Date Date Rev. 612011 Designated Legislative Grant Agreement Page 1 of 13 Attachment A Scope of Work 1. Project Description The purpose of this FY 2022 Designated Legislative Grant in the amount of $6,500,000.00 pursuant to the pmtisions of AS 37,05.315, Grants to Municipalities, SLA 2022, HB281, Chapter 11, Section 11, Page 86, and Line 32 is to provide funding to the City of Kenai for use towards the Kenai River Bluff Stabilization. The objective of this project is to provide a match for a federal grant in support of the Kenai River Bluff Stabilization Project. The City of Kenai in partnership with U.S. Army Corps of Engineers (USACE) will address chronic bluff erosion along the northern bank of the mouth of the Kenai River. The project will develop a rock revetment berm at the toe of the bluff to allow stabilization at a natural angle of repose to support vegetation. This project may include the following items: • Contractual • Administration Additional expenditures must be reasonable and relative to the project objective and may require preapproval by the department. No more than five percent (50/6) of the total grant award may be reimbursed for Administrative expenses for projects involving equipment purchase or repairs and no more than ten percent (10%) of the total grant award may be reimbursed for Administrative expenses for all other projects. To be reimbursed for eligible administrative costs, expenses must be reported on the Designated Legislative Grant Financial/Progress Report form. 2. Project Budget Cost Category Total Project Costs Project Funds $6,435,000.00 Administration $65,000.00 Total Grant Funds $6,500,000.00 financial and performance progress reporting authority via the Signatory Authority Form. Such delegation is limited to others within the Grantee's organization unless otherwise approved by the Department. The Grantee must establish and maintain separate accounting for the use of this grant. The use of grant funds in any manner contrary to the terms and conditions of this Grant Agreement may result in the subsequent revocation of the grant and any balance of funds under the grant. It may also result in the Grantee being required to return such amounts to the State. If applicable under state law, grantees must be registered and in good standing with the Department of Commerce, Community and Economic Development's Division of Corporations, Business and Professional Licensing. 4. Reporting The Grantee shall submit a Designated Legislative Grant Financial/Progress Report Form provided by the Department each month, or quarterly, with the concurrence of the Department, during the life of the Grant Agreement. Grant Financial/Progress Report Forms are due thirty (30) days after the end of the month or quarter being reported. The report period is the first of the month through the last day of the month. If quarterly reporting is approved, the report period is the first day of the first month through the last day of the third month of the quarter. The final Financial/Progress Reports must be submitted within thirty (30) days following completion of the project. Rev. 612021 Designated Legislative Grant Agreement Page 3 of 13 Attachment B Payment Method 1. Reimbursement Payment Upon receiving and approving a Grantee's Financial/Progress Report, the Department will reimburse the Grantee for expenditures paid during the reporting period, in accordance with this Grant Agreement. The Department will not reimburse without approved Financial/Progress Reports, prepared and submitted by the Grantee on the form provided by the Department. Before approving the financial/progress report for payment, the Department may require the Grantee to submit documentation of the costs reported (e.g., copies of vendor billings/invoices and proof of payment, general ledger expenditure report). 2. Advance Payment In most instances, the Department will make payment to a Grantee on a cost reimbursable basis. If cost reimbursement significantly inhibits the Grantee's ability to implement the project, the Department may advance to the Grantee an amount not to exceed a projected thirty (30) day cash need, or twenty percent (20%) of the amount in Section I, whichever is less. Before the Department will issue an advance, the Grantee must submit a "Request for Advance Payment" form along with documentation of costs associated with the advance. The "Request for Advance Payment" form can be obtained from the Department electronically or in hard copy. All advances will be recovered with the Grantee's next Financial/Progress Report form. Should earned payments during the terms of this Grant Agreement be insufficient to recover the fun amount of the advance, the Grantee will repay the unrecovered amount to the Department when requested to do so by the Department, or at termination of the Grant Agreement. 3. Withholding of Ten Percent (10%) The Department may withhold ten percent (10%) of the amount in Section I until the Department determines that the Grantee has satisfactorily completed the terms of this Grant Agreement, including all required reporting of the project. Rev. 612021 Designated Legislative Grant Agreement Page 4 of 13 Attachment C Standard Provisions Article 1. Definition "Department" refers to the Department of Commerce, Community, and Economic Development with the State of Alaska. Article 2. Indemnification It is understood and agreed that this Grant Agreement is solely for the benefit of the parties to the Grant Agreement and gives no right to any other party. No joint venture or partnership is formed as a result of the Grant Agreement. The Grantee, its successors and assigns, will protect, save, and hold harmless the Department and the State of Alaska and their authorized agents and employees, from all claims, actions, costs, damages, or expenses of any nature whatsoever by reason of the acts or omissions of the Grantee, its subcontractors, assigns, agents, contractors, licenses, invitees, employees, or any person whomever arising out of or in connection with any acts or activities authorized by this Grant Agreement. The Grantee further agrees to defend the Department and the State of Alaska and their authorized agents and employees in any litigation, including payment of any costs or attorney's fees for any claims or actions commenced thereon arising out of or in connection with acts or activities authorized by this Grant Agreement. This obligation shall not include such claims, costs, damages, or expenses which may be caused by the sole negligence of the Department of the State of Alaska or their authorized agents or employees, provided, that if the claims or damages are caused by or result from the concurrent negligence of (a) the Department and the State of Alaska and their agents or employees, and (b) the Grantee, its agents or employees, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the Grantee, or Grantee's agents or employees. Article 3. Legal Authority The Grantee certifies that it possesses legal authority to accept grant funds under the State of Alaska and to execute the project described in this Grant Agreement by signing the Grant Agreement document. The Grantee's relation to the Department and the State of Alaska shall be at all times as an independent Grantee. Article 4. Waivers No conditions or provisions of this Grant Agreement can be waived unless approved by the Department in writing. The Department's failure to insist upon strict performance of any provision of the Grant Agreement, or to exercise any right based upon a breach thereof, or the acceptance of any performance during such a breach, shall not constitute a waiver of any right under this Grant Agreement Article 5. Access to Records The Department and duly authorized officials of the State of Alaska shall have full access and the right to examine, excerpt, or transcribe any pertinent documents, papers, records, and books of the Grantee, and of persons or organizations with which the Grantee may contract, involving transactions related to the project and this Grant Agreement. Article 6. Reports The Grantee, at such times and in such forms as the Department may require, shall furnish the Department with such periodic reports as it may request pertaining to the activities undertaken pursuant to this Grant Agreement, including the final close-out report, the costs and obligations incurred in connection therewith, and any other matters covered by this Grant Agreement. Article 7. Retention of Records The Grantee shall retain financial and other records relating to the performance of this Grant Agreement for a period of six years from the date when the final financial status report is submitted to the Department, or until final resolution of any audit findings, claims, or litigation related to the grant. Rev. 612021 Designated Legislative Grant Agreement Page 5 of 13 Article 8. Assignability The Grantee shall not assign any interest in this Grant Agreement and shall not transfer any interest in the same (whether by assignment or novation). Article 9. Financial Management and Accounting The Grantee shall establish and maintain a financial management and accounting system that conforms to generally accepted accounting principles. Article 10. Program Income Program income earned during the award period shall be retained by the Grantee and added to the funds committed to the award and used for the purpose and under the conditions applicable to the use of award funds. Article 11. Amendments and Modifications The Grantee or the Department may request an amendment or modification of this Grant Agreement. However, such amendment or modification shall not take effect until approved, in writing, by the Department and the Grantee. Article 12. Procurement Grantees may utilize their own written procurement procedures, provided they reflect applicable state and local laws and regulations and conform to the standards identified in AS 36.30. Article 13. State Excluded Parties List Report The grantee is responsible for ensuring that all sub -grantees or sub -contractors are not listed on the 'Excluded Parties List Report', which identifies those parties excluded from receiving State contracts. Article 14. Recordkeeping The Grantee agrees to keep such records as the Department may require. Such records will include information pertaining to grant awards and authorizations, obligations, unobligated balances, assets, liabilities, outlays and income. They will also include information pertaining to project performance and efforts to comply with the provisions of the Grant Agreement. Article 15. Obligations Regarding Third -Party Relationships None of the Work specified in this Grant Agreement shall be contracted by the Grantee without prior approval of the Department. No permission for subcontracting shall create, between the Department or the State of Alaska and the subcontractor, any contract or any relationship. The Grantee shall remain fully obligated under the provisions of this Grant Agreement notwithstanding its designation of any third party or parties of the undertaking of all or any part of the project described herein. Any subcontractor that is not the Grantee shall be required by the Grantee to comply with all applicable provisions of this Grant Agreement. The Grantee shall bind all subcontractors to each and every applicable Grant Agreement provision. Each subcontract for work to be performed with funds granted under this Grant Agreement shall specifically include a provision that the Department and the State of Alaska are not liable for damages or claims from damages arising from any subcontractor's performance or activities under the terms of the subcontracts. Rev. 612021 Designated Legislative GmntAgreement Page 6 of 13 . ; U Article 16. Conflict of Interest No officer or employee of the Department; no member, officer, or employee of the Grantee or its designees or agents; no member of the governing body of the jurisdiction in which the project is undertaken or located; and no other official of such locality or localities who exercises any functions or responsibilities with respect to the project during his or her tenure, shall have any personal or pecuniary gain or interest, direct or indirect, in any contract, subcontract, or the proceeds thereof, for work to be performed in connection with the project assisted under this Grant Agreement. The Grantee shall incorporate, or cause to incorporate, in all such contracts or subcontracts, a provision prohibiting such interest pursuant to the purpose of this provision. Article 17. Political Activity No portion of the funds provided hereunder shall be used for any partisan political activity or to further the election or defeat of any candidate for public office or influence the approval or defeat of any ballot issue. Article 18. Notices The Grantee shall comply with all public notices or notices to individuals required by applicable state and federal laws and shall maintain a record of this compliance. Article 19. Prohibition Against Payment of Bonus or Commission The assistance provided under this Grant Agreement shall not be used in payment of any bonus or commission for the purpose of obtaining approval or concurrence under this contract provided, however, that reasonable fees of bona fide technical consultant, managerial, or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as project costs. Article 20. Termination by Mutual Agreement This Grant Agreement may be terminated, in whole or in part, prior to the completion of contract project activities when both parties agree that continuation is not feasible or would not produce beneficial results commensurate with the further expenditure of funds. The Department will determine whether an environmental review of the cancellation is required under State and/or Federal law. The parties must agree on the termination conditions, including effective date and the portion to be terminated. The Grantee shall not incur new obligations for the terminated portion after the effective date and shall cancel as many outstanding obligations as possible. The Department shall make funds available to the Grantee to pay for allowable expenses incurred before the effective date of termination. Article 21. Termination for Cause If the Grantee fails to comply with the terms of this Grant Agreement, or fails to use the grant for only those purposes set forth herein, the Department may take the following actions: A. Suspension — After notice in writing by certified mail to the Grantee, suspend the grant and withhold any further payment or prohibit the Grantee from incurring additional obligations of grant funds, pending corrective action by the Grantee or a decision to terminate. Response must be received within fifteen (15) days of receipt of the written notice. B. Termination — Terminate the grant in whole or in part, at any time before the final grant payment is made. The Department shall promptly notify the Grantee in writing of its determination to terminate, the reason for such termination, and the effective date of the termination. Payments made to the Grantee or recoveries by the Department shall be in accordance with the legal rights and liabilities of the parties. Rev. &2021 Designated Legislative GrantAgreement Page 7 of 13 Article 22. Withdrawal of Funds In the event funding from the state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Grant Agreement and prior to normal completion, the Department may terminate the agreement, reduce funding, or re -negotiate subject to those new funding limitations and conditions. A termination under this article shall be implemented under the same conditions as a termination under Article 20 of this Attachment. Article 23. Recovery of Funds In the event of a default or violation of the terms of the Grant Agreement by the Grantee, the Department may institute actions to recover all or part of the project funds paid to the Grantee. Repayment by the Grantee of grant funds under this recovery provision shall occur within thirty (30) days of demand. All remedies conferred on the Department by this agreement or any other instrument or agreement are cumulative, not exclusive, and may be exercised concurrently or consecutively at the Department's option. Article 24. Disputes Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement that is not disposed of by mutual agreement shall be decided by the Department, which shall reduce its decision to writing and mail, or otherwise furnish a copy thereof, to the Grantee. The decision of the Department shall be final and conclusive. This "Disputes" clause does not preclude the consideration of questions of law in connection with the decision provided for in the preceding paragraph provided that nothing in the Grant Agreement shall be construed as making final the decisions of any administrative official, representative, or board on a question of law. Article 25. Jurisdiction This Grant Agreement shall be governed by the laws and statutes of the State of Alaska. The venue of any suit hereunder may be in the Superior Court for the First Judicial District, Juneau, Alaska. Article 26. Ownership of Project/Capital Facilities The Department makes no claim to any capital facilities or real property improved or constructed with funds under this Grant Agreement and, by this grant of funds, does not and will not acquire any ownership interest or title to such property of the Grantee. The Grantee shall assume all liabilities arising from the ownership and operation of the project and agrees to hold the Department and the State of Alaska harmless from any and all causes of action arising from the ownership and operation of the project. Article 27. Site Control If the grant project involves the occupancy and use of real property, the Grantee assures that it has the legal right to occupy and use such real property for the purposes of the grant, and further that there is legal access to such property. As a minimum requirement, the Grantee should obtain a "sufficient interest" that allows the Grantee the right to use and occupy the site for the expected useful life of the building, structure or other improvement. Generally, the interest obtained should be for at least 20 years. A sufficient interest depends upon the nature of the project and the land status of the site. Article 28. Insurance The Grantee is responsible for obtaining any necessary liability insurance and maintain in force at all times during the performance of this Grant Agreement the insurance policies identified below. All insurance policies shall comply with, and be issued by insurers licensed to transact the business of insurance under Alaska Statute AS 21. The Grantee shall require any contractor hired to work on the project be licensed, bonded and insured for at least the amount of the project and if appropriate provide and maintain Professional Liability Insurance. Rev. 612021 Designated Legislative Grant Agreement Page 8 of 13 A. Workers' Compensation Insurance for all employees engaged in work under this Grant Agreement, coverage as required by AS 23.30.045, and; where applicable, any other statutory obligations including but not limited to Federal U.S.L. & H. and Jones Act requirements. B. Commercial General Liability Insurance covering all business premises and operations used by the Grantee in the performance of this project and Grant Agreement with coverage limits not less than $300,000 combined single limit per occurrence and annual aggregates where applicable. C. Comprehensive Automobile Liability Insurance covering all vehicles used by the Grantee in the performance of this project and Grant Agreement with coverage limits not less than $100,000 per person/$300,000 per occurrence bodily injury and $50,000.00 property damage. D. Professional liability Insurance covering all errors, omissions or negligent acts of the contractor, subcontractor or anyone directly or indirectly employed by them, made in the performance of this contract which result in financial loss to the State. Limits required are per the following schedule: Contract AmountMinimum Required Limits Under $100,000 $100,000 per occurrence/annual aggregate Article 29. Subcontracts for Engineering Services In the event that the Grantee subcontracts for engineering services, the Grantee will require that the engineering firm certify that it is authorized to do business in the State of Alaska. In the event that the engineering firm is also the project administrator, the Grantee shall require that the bond or insurance shall be for not less than the amount of the entire project. Article 30. Governing law This Grant Agreement is governed by the laws of the State of Alaska. The Grantee shall perform all aspects of this project in compliance with the appropriate laws and regulations. It is the responsibility of the Grantee to ensure that all permits required for the construction and operation of this project by the Federal, State, or Local governments have been obtained. Article 31. Budget Flexibility Notwithstanding the provisions of Article 11, Attachment C, the Grantee may revise the project budget in Attachment A without a formal amendment to this agreement. Such revisions are limited within each line item to a maximum of ten percent (10%) of the line item or $10,000, whichever is less, over the entire term of this agreement. Such budget revisions shall be limited to changes to existing budget line items. Budget revisions may not be used to increase any budget item for project administrative expenses. Changes to the budget beyond the limits authorized by this provision may only be made by a formal amendment to this agreement. Article 32. Equal Employment Opportunity (EEO) The Grantee may not discriminate against any employee or applicant for employment because of race, religion, color, national origin, age, physical handicap, sex, marital status, changes in marital status, pregnancy, or parenthood. The Grantee shall post in a conspicuous place, available to employees and applicants for employment, a notice setting out the provisions of this paragraph. The Grantee shall state, in all solicitations or advertisements for employees to work on state funded projects, that it is an equal opportunity employer (EEO) and that all qualified applicants will receive consideration for employment without regard to race, religion, color, national origin, age, physical handicap, sex, marital status, changes in marital status, pregnancy, or parenthood. The Grantee shall include the provisions of this EEO article in every contract relating to this Grant Agreement and shall require the inclusion of these provisions in every agreement entered into by any of its contractors, so that those provisions will be binding upon each contractor or subcontractor. Rev. 612021 Designated Legislative GrantAgreement Page 9 of 13 Article 33. Americans with Disabilities Act The Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities. Title I of the ADA prohibits discrimination against persons with disabilities in employment and provides that a reasonable accommodation be provided for applicants and employees. Title II of the Act prohibits public agencies from discriminating against individuals with disabilities in the provision of services, programs, or activities. Reasonable accommodation must be made to ensure or allow access to all services, programs, or activities. This section of the Act includes physical access to public facilities and requires that public entities must, if necessary, make modifications to their facilities to remove physical barriers to ensure access by persons with disabilities. All new construction must also be accessible to persons with disabilities. A public entity's subgrantees or contractors must also comply with the ADA provisions. Grantees are responsible for assuring their compliance with the ADA. Article 34. Public Purposes The Grantee agrees that the project to which this Grant Agreement relates shall be dedicated to public purposes for its useful life. The benefits of the project shall be made available without regard to race, religion, color, national origin, age, physical handicap, sex, marital status, changes in marital status, pregnancy, or parenthood. If the Grantee is a non -municipal entity and if monies appropriated under this grant constitute the sole or principal funding source for the acquisition of equipment or facilities, the Grantee agrees that in the event a municipal corporation is formed which possesses the power and jurisdiction to provide for such equipment or facilities, the Grantee shall offer, without compensation, to transfer ownership of such equipment or facilities to the municipal corporation. If the Grantee is a non-profit corporation that dissolves, the assets and liabilities from the grant project are to be distributed according to statutory law, AS 10.20.290-10.20.452. Article 35. Operation and Maintenance Throughout the life of the project, the Grantee shall be responsible for the operation and maintenance of any facility, equipment, or other items acquired under this grant. Article 36. Assurance The Grantee shall spend monies awarded under this grant only for the purposes specified in this Grant Agreement. Article 37. Current Prevailing Rates of Wage Certain grant projects are constrained by the provisions of AS 36. PUBLIC CONTRACTS. To the extent that such provisions apply to the project which is the subject of this Grant Agreement, the Grantee shall pay the current prevailing rates of wage to employees as required by AS 36.05.010. The Grantee also shall require any contractor to pay the current prevailing rates of wage as required by AS 36.05.010. Article 38. Severability If any provision under this Grant Agreement or its application to any person or circumstance is held invalid by any court of rightful jurisdiction, this invalidity does not affect other provisions of the contract agreement which can be given effect without the invalid provision. Article 39. Performance The Department's failure to insist upon the strict performance of any provision of the Grant Agreement or to exercise any right based upon breach thereof or the acceptance of any performance during such breach shall not constitute a waiver of any rights under this Grant Agreement. Rev. 612021 Designated Legislative GrantAgreement Page 10 of 13 f 1 a_, Article 40. Sovereign Immunity If the Grantee is an entity which possesses sovereign immunity, it is a requirement of this grant that the Grantee irrevocably waive its sovereign immunity with respect to state enforcement of this Grant Agreement. The waiver of sovereign immunity, effected by resolution of the entity's governing body, is herein incorporated into this Grant Agreement. Article 41. Audit Requirements The Grantee must comply with the audit requirements of the Alaska Administrative Code set forth in 2AAC45.010. AUDIT REQUIREMENTS. An entity that expends a cumulative or total, equal to the state single audit threshold during the fiscal year is required to have a state single audit. A copy of the most current 2AAC45.010 adopted regulations is available at the Alaska Department of Administration's State Single Audit website: http://doa.alaska.gov/dof/ssa/index.html. Current audit compliance supplements and guides specific to programs under AS 37.05.315 Grants to Municipalities, AS 37.05.316 Grants to Named Recipients, and AS 37.05.317 Grants to Unincorporated Communities can be found atht_pt ://doa.alaska.gav/dof/ssa/audit guide.html. Article 42. Close -Out The Department will advise the Grantee to initiate close-out procedures when the Department determines, in consultation with the Grantee, that there are no impediments to close-out and that the following criteria have been met or soon will be met: A. All costs to be paid with grant funds have been incurred with the exception of close-out costs and any unsettled third -party claims against the Grantee. Costs are incurred when goods and services are received or contract work is performed. B. The last required performance report has been submitted. The Grantee's failure to submit a report will not preclude the Department from effecting dose -out if it is deemed to be in the State's interest. Any excess grant amount that may be in the Grantee's possession shall be returned by the Grantee in the event of the Grantee's failure to finish or update the report. C. Other responsibilities of the Grantee under this Grant Agreement and any dose -out agreement and applicable laws and regulations appear to have been carried out satisfactorily or there is no further State interest in keeping the grant open for the purpose of securing performance. Rev. 612021 Designated Legislative Grant Agreement Page 11 of 13 Appendix A State Laws and Regulations and Permits Grantees are responsible for all applicable state laws, regulations and pemvts; including but not limited to the following list which most commonly affects Grantees. Municipality Public Facility Operations and Maintenance —AS 37.05.315(c) In accepting a grant under AS 37.05.315 for construction of a public facility, a municipality covenants with the State that it will operate and maintain the facility for the practical life of the facility and that the municipality will not look to the State to operate or maintain the facility or pay for its operation or maintenance. This requirement does not apply to a grant for repair or improvement of an existing facility operated or maintained by the State at the time the grant is accepted if the repair or improvement for which the grant is made will not substantially increase the operating or maintenance costs to the State. Restriction on Use —AS 37.05.321 A grant or earnings from a grant under AS 37.05.315 - 37.05.317 may not be used for the purpose of influencing legislative action. In this section "influencing legislative action" means promoting, advocating, supporting, modifying, opposing, or delaying or seeking to do the same with respect to any legislative action but does not include the provision or use of information, statistics, studies, or analyses in written or oral form or format. A grant or earnings from a grant made under AS 37.05.315 - 37.05.317 may not be used for purposes of travel in connection with influencing legislative action unless pursuant to a specific request from a legislator or legislative committee. Hiring Preferences —AS 36.10 This chapter of the Alaska Statutes applies to grants for public works projects and requires compliance with the hiring preferences under AS 36.10.150 — 36.10.175 for employment generated by the grant. Historic Preservation Act —AS 41.35 This chapter of the Alaska Statutes applies to public construction of any nature undertaken by the State, or by a governmental agency of the State, or by a private person under contract with or licensed by the State or a governmental agency of the State. The Department of Natural Resources must be notified if the construction is planned for an archaeological site. The Department of Natural Resources may stop the construction to determine the extent of the historic, prehistoric, or archaeological values. Fire Protection —AS 18.70 This chapter of the Alaska Statutes requires the Alaska Department of Public Safety (the State Fire Marshal) to adopt regulations (currently in the form of Uniform Fire Code, as amended) establishing minimum standards for: 1. Fire detection and suppression equipment; 2. Fire and life safety criteria in commercial, industrial, business, institutional, or other public buildings used for residential purposes containing four or more dwelling units; 3. Any activity in which combustible or explosive materials are stored or handled in commercial quantities; 4. Conditions or activities carried on outside a building described in (2) or (3) likely to cause injury to persons or property. Rev. 612021 Designated Legislative Grant Agreement Page 12 of 13 r1 M Procurement Preference for State Agricultural and Fisheries Products —AS 29.71.040 This chapter of the Alaska Statutes applies to municipalities that use state funds to purchase agricultural and fisheries products. The law requires: 1. When agricultural products are purchased, only such products harvested in the state shall be purchased whenever priced no more than seven percent above products harvested outside the state, and of like quality compared with agricultural products harvested outside the state. 2. When fisheries products are purchased, only fisheries products harvested or processed within the jurisdiction of the state shall be purchased whenever priced no more than seven percent above products harvested or processed outside the jurisdiction of the state, available, and of like quality compared with fisheries products harvested or processed outside the jurisdiction of the state. Alaska Product Preferences —AS 36.15 This chapter of the Alaska Statutes applies to projects financed by state money in which the use of timber, lumber, and manufactured lumber products is required, only timber, lumber and manufactured lumber projects originating in this state from local forests shall be used wherever practicable. The law requires the insertion of this clause in calls for bids and in all contracts awarded. Permits and Environmental Procedures The Alaska Department of Environmental Conservation (ADEC) regulates all activities in Alaska that might pollute the air, water or soil. There are dozens of ADEC permits related to constructing and operating public buildings. The law requires the following permits, including others designated by the commissioner. The following list is not intended to be all-inclusive. Rev. 62021 • Air Emissions Permit • Anadromous Fish Protection Permit • Authorization for Tidelands Transportation • Brine or Other Salt Water Waste Disposal Pemnit • Burning Permit during Fire Season • Coal Development Permit • Critical Habitat Area Permit • Dam Construction Permit • Driveway Permit • Encroachment Pemut • Miscellaneous State Land Use Permit • Mineral and Geothermal Prospecting Pen -nits • Occupied Tide and Submerged Land • Open Burning Permit • Permit for Use of Timber or Materials • Permit to Appropriate Water • Pesticides Permit • Preferred Use Permit • Right -of -Way and Easement Permits • Solid Waste Disposal • Special Land Use Permit • State Game Refuge Land Permit • State Park Incompatible Use Permit • Surface Oiling Permit • Surface Use Permit • Tide and Submerged Lands Prospecting Permit • Tidelands Permit • Tidelands Right -of -Way or Easement Permit • Utility Permit • Waste Water Disposal Permit • Water Well Pen -nit Designated Legislative Grant Agreement Page 13 of 13