AttachmentF_WashingtonCommoditiesAgreement.pdf

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Washington State Department of Agriculture Food Assistance – Washington Commodities Donation Grant Program Agreement

TABLE OF CONTENTS

FACE SHEET

SPECIAL TERMS AND CONDITIONS

1. Program Requirements

2. Agreement Performance

3. Grantee’s Responsibilities

4. Allowable And Disallowed Costs

5. Billing Procedures And Payment

6. Compensation

7. Financial And Risk Assessment

8. Procurement Management

9. Written Policies And Procedures

10. Reporting Requirements

11. Subgrantee Management

12. Suspension and Debarment

13. Period Of Performance

14. Order Of Precedence

GENERAL TERMS AND CONDITIONS.

1. Definitions

2. Access to Data

3. Advance Payments Prohibited

4. All Writings Contained Herein

5. Amendments

6. Americans with Disabilities Act (ADA)

7. Approval

8. Assignment

9. Attorney’s Fees

10. Audit

11. Calculation of Time

12. Certification Regarding Debarment, Suspension, or Ineligibility and Voluntary Exclusion

13. Civil Rights and Non-Discrimination

14. Confidentiality/Safeguarding Information

15. Conflict of Interest/Ethics

16. Conformance with Law

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17. Continued Eligibility

18. Copyright Provisions

19. Covenant Against Contingent Fees

20. Cumulative Rights and Remedies

21. Disputes

22. Duplicate Payment

23. Governing Law and Venue

24. Incorporation of Referenced Document

25. Indemnification

26. Independent Capacity of the Grantee

27. Industrial Insurance Coverage

28. Insurance

29. Laws

30. Licensing, Accreditation, and Registration

31. Limitation of Authority

32. Maintenance of Records, Documents, and Reports

33. Overpayments and Assertion of Lien

34. Political Activities

35. Prohibition Against Payment of Bonus or Commission

36. Procurement Management

37. Public Records Act and Proprietary Information

38. Publicity

39. Recapture

40. Registration

41. Right of Inspection

42. Savings………………………………………………………………………………………………………………………………………………………… 11

43. Severability

44. Site Security

45. Grant Agreement Management

46. Survival…………………………………………………………………………………………………………………………………………………………11

47. Taxes………………………………………………………………………………………………………………………………………………….…………11

48. Termination or Suspension for Cause

49. Termination or Suspension for Convenience

50. Termination or Suspension for Loss of Funding or Government Shutdown

51. Termination Procedure

52. Volunteers

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53. Waiver………………………

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Food Assistance – Washington Commodities Donation Grant Program

SPECIAL TERMS AND CONDITIONS

1. PROGRAM REQUIREMENTS. Throughout the Grant period, the Grantee shall comply fully with all provisions of this Grant, and as amended, including:

1.1. All applicable federal, state, and laws, and all regulations, rules, guidance, policies, and ordinances that apply to these funding sources.

1.2. Washington State Department of Agriculture Food Assistance (WSDA FA) Instructions.

1.3. The Grantee’s purchasing, fiscal, and project management policies, if more restrictive than the requirements of this Grant.

1.4. Unless revised, all terms and conditions listed in the Agreement remain in full force and effect, including the General Terms and Conditions to the extent they do not conflict with the Special Terms and Conditions. See Order of Precedence, Paragraph 14.

2. AGREEMENT PERFORMANCE. The Grantee’s performance will be periodically reviewed and rated, which may impact this Grant and may be considered when evaluating future applications and award decisions for WSDA FA funding. Poor performance may be the basis for reduced funding or termination of the current award.

2.1. Throughout the Grant period, WSDA FA will monitor the Grantee’s performance by evaluating timely submitted expenditure and tracking reports and responsiveness of program requests.

a. Submittals. Rating is negatively impacted by submissions that are consistently received late without a granted extension. Inaccurate submittals and repeated errors will also result in a negative rating.

b. Monitoring. WSDA FA will conduct monitoring of the Grantee by evaluating the program documentation submitted.

3. GRANTEE’S RESPONSIBILITES. The principal purpose of this Grant is to provide funding for the Grantee to accomplish a public purpose. This Grant does not provide a benefit or entitlement to the Grantee. Throughout the Grant period, the Grantee shall comply fully with Program Requirements. The Grantee shall communicate effectively, provide staff, and furnish all goods and services necessary to accomplish the activities under the Grant during the Grant period. The Grantee’s activities shall include, but are not limited to:

3.1. Grantees are required to participate in Compliance Monitoring.

a. WSDA FA will conduct program reviews by evaluating each monthly invoice and corresponding backup.

3.2. The Grantee will not charge Subgrantees for food and distribution services.

3.3. The Grantee shall offer technical assistance to Subgrantees as needed to assist in carrying out the goals of this Award.

3.4. The Grantee shall ensure that its operations adhere to a policy of good stewardship of public funds.

3.5. The Grantee must adhere to safety and sanitation standards and adhere to all applicable local, state, and federal regulations on food safety and sanitation surrounding the areas of ground and warehouse maintenance, food storage and pest control.

3.6. Attend meetings as required.

4. ALLOWABLE AND DISALLOWED COSTS. WSDA FA will reimburse eligible program expenditures up to the amount listed on the Face Sheet. Only costs incurred within the budget period are eligible for reimbursement. Costs of Activities not related to this Grant are disallowed.

4.1. Allowable expenses include expenses specifically related to such as food, staffing, storage, transportation, indirect, and related operational expenses.

a. The majority of these Grant funds should be spent on food – 60% or more.

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b. The foods must be Washinton grown produce, grains, and protein otherwise at risk of ending up as food waste.

4.2. Allowable expenses also include payments made to food producers to cover eligible food producer costs that were not incorporated into the costs of the food being purchased or donated.

a. Grantee may use funds under this section to compensate food producers donating commodities for pick and pack out costs incurred associated with the production of a food product, including costs of food product inputs and harvest.

4.3. Unallowable expenses include any other expenses that are not directly related to the procurement and distribution of Washington grown foods which are at risk of ending up as food waste.

4.4. Unallowable costs include but are not limited to purchases of gift cards, land, buildings, equipment, and infrastructure development.

4.5. Financial records must be supported by a system of internal controls which provides a reasonable assurance that charges are accurate, reasonable, and properly allocated.

4.6. The Grantee shall submit reimbursement, either for itself and/or including reimbursements to Subgrantees, for only allowable expenses, if applicable.

a. Eligible expenses may include both indirect and direct costs specifically associated with this Grant.

4.7. Reimbursement for travel expenditures must comply with state policies published in Chapter 10 of the State Administrative & Accounting Manual (SAAM). Mileage reimbursement and per diem rates must not exceed the rates published in SAAM Ch. 10, Sec. 90, which may be periodically updated.

4.8. The Grantee is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subgrantees.

4.9. The list of allowable and disallowed costs is not comprehensive; please reach out to your Food Assistance Representative with any questions.

5. BILLING PROCEDURES AND PAYMENT. The Grantee shall submit monthly signed invoice vouchers (expenditure reports), including an expanded general ledger and any back-up as required or requested, for the program via email to WSDA FA on or before the 20th of the month following provision of services.

5.1. Payment of invoices will be made only to the Grantee that is party to the Grant. WSDA FA reserves the right to require submittals in advance of the 20th to meet special terms and conditions associated with program requirements, reallocation of funds, and the closeout process.

5.2. The Grantee will maintain the Invoice Vouchers Workbook (multi-tab Excel workbook supplied by WSDA FA).

5.3. WSDA FA will pay the Grantee upon acceptance of services provided and receipt of properly completed invoice vouchers.

a. Submit invoices electronically to the assigned Food Assistance Representative by the 20th of each month for services provided in the previous month.

b. The invoices shall include the Agreement (Grant) number and indicate the costs incurred in each budget category as directed by WSDA FA and indicated on WSDA FA invoice template.

c. The Grantee shall include a detailed (expanded) general ledger of the program’s expenses with every invoice/expenditure report and include all backup. Upon WSDA FA’s request, Grantee shall submit provide additional information if request.

i. The Grantee shall collect, submit, and keep on file backup documentation for any Subgrantee reimbursements.

d. Payment is timely if made by WSDA FA within thirty (30) calendar days after receipt of properly completed invoices.

https://ofm.wa.gov/sites/default/files/public/legacy/policy/SAAM_23A-04_2023_06_01.pdf

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e. Payment shall be transferred electronically to the Grantee’s designated bank account unless the Grantee requests payment by warrant (check). If payments are made by warrant, the payee will be the Grantee that is party to the Agreement and the payment will be mailed to the address on file associated with their Statewide Vendor number.

f. Maintain financial expenditure tracking by funding source, as applicable.

g. Invoice payments will be made only to those that are party to the Agreement. Name and Address must correspond to information in Statewide Vendor file with Washington State Office of Financial Management (OFM).

5.4. The WCDGP is a reimbursement program. No payment by WSDA FA, will be made in advance of, or in anticipation of services or receipt of supplies under this Agreement. Costs are reportable for the month in which the expenditure is incurred.

a. Any funding provided through this Agreement is available on a reimbursement basis once costs are incurred and goods have been received, or the services have been rendered.

b. Goods must be received before expenses are eligible for reimbursement. The Grantee must reimburse Subgrantee, if applicable, before requesting reimbursement from WSDA FA.

c. The term “incurred” is defined as when a Grantee or Subgrantee becomes liable for a cost, which is further defined as when the purchase is made, or the services have been rendered. Goods must be received before expenses are eligible for reimbursement.

6. COMPENSATION. WSDA FA shall reimburse for amounts, not to exceed the total Grant amount listed on the Face Sheet of this Grant, for the performance of all things necessary or incidental to the performance of the Grant.

6.1. Compensation is on a reimbursement basis only. No advance payments are allowed.

6.2. Expenses must be determined in accordance with the Generally Accepted Accounting Principles (GAAP), except as otherwise stipulated. If the Grantee has more restrictive policies, the more restrictive policies take precedence.

7. FINANCIAL AND RISK ASSESSMENT. WSDA FA evaluates aspects of the Grantee financial stability, management systems, and history of performance. This includes scoring responses from the completed Accounting System & Financial Capability Questionnaire (AGR-2383).

7.1. An Initial Risk Assessment rating will be determined based on completion of form Accounting System & Financial Capability Questionnaire (AGR-2383) prior to executing a Grant to establish initial risk tolerance.

a. An initial risk assessment rating of (Low, Medium, or High) will be assigned based upon the responses provided in the questionnaire.

i. If during the Grant period, the Grantee has an Audit, the Grantee is requested to submit a copy of the Audit report to WSDA FA with 30 days of receipt.

ii. Responses will be scored according to the Questionnaire’s scoring rubric and the total score will be rated as Low, Medium, or High-Risk.

iii. Grantees with a High-Risk rating will merit additional program review and more in-depth monitoring.

8. PROCUREMENT MANAGEMENT. WSDA has determined that the Agency’s Procurement Policies are more restrictive than the Federal Award Uniform Guidance. The allowable Micro purchase (Direct Buy) threshold for Recipient’s and Subrecipient’s increased to $50,000 whereas WSDA’s Direct Buy threshold is lower, (i.e. less than $30,000 or less than $40,000 if purchase is from a microbusiness, minibusiness, or small business, or certified veteran-owned business, or a certified OMWBE business).

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The Grantee shall comply with WSDA’s Procurement Policies unless the Grantee’s Procurement Policies are more restrictive, then the Grantee must follow its own policies. See Paragraph 36 Procurement Management, in the General Terms and Conditions.

9. WRITTEN POLICIES AND PROCEDURES. The Grantee shall prepare and maintain written policies and procedures governing its general and food assistance services under this Grant. The Grantee must comply with its own policies and procedures if more restrictive.

10. REPORTING REQUIREMENTS. The Grantee shall timely submit all required submittals and reports. All reports shall meet the following:

10.1. Submit timely reports in compliance with this Agreement. Submittals must include, but are not limited to:

a. Monthly invoice voucher (A-19), with required backup.

b. Certificate of insurance (see General Terms and Conditions).

10.2. Submit signed invoice vouchers monthly, including expanded general ledger and required back-up, via email:

a. Prior WSDA FA approval is needed for more than one invoice submittal per month.

b. Final invoice is due by July 20, 2025.

c. WSDA FA will make payments on a reimbursement basis only. WSDA FA will reimburse eligible project expenditures up to the amount listed on the Face Sheet.

10.3. WSDA FA may recapture unclaimed funds if invoice vouchers and/or reports are not submitted in a timely manner.

a. If the Grantee fails to file monthly expenditures and/or other reports for three (3) consecutive months, then WSDA FA may elect to suspend or terminate this Agreement.

b. The Grantee may recapture unclaimed funds or terminate the Agreement with the Subgrantee based on the same criteria, as long as it is consistent with their written Agreement.

10.4. Submit monthly Purchasing and Distribution Reports using the WSDA FA provided template (samples provided at the end of this Agreement, including purchase and distribution supporting documents such as Bills of Lading. At a minimum this will include:

a. Purchasing:

i. Vendor – Third Party, if applicable (i.e. Food Hub and not a direct purchase from a farmer/food producer): Name, Address, City, Zip Code, County, Latitude/Longitude, Legislative District, Congressional District, Underrepresented Designation, $ Value of Food Purchase, Pounds of Food, Product Type.

ii. Farmer/Producer - Direct: Name, Address, City, Zip Code, County, Latitude/Longitude, Legislative District, Congressional District, Underrepresented Designation, $ Value of Food Purchase, Pounds of Food, Product Type.

b. Distributions:

i. Food Distributor, if applicable (i.e. Food Bank that delivers food for further distribution): Name, Address, City, Zip Code, County, Latitude/Longitude, Legislative District, Congressional District, and lists organizations receiving food (distribution sites serving clients), Address, City, Zip Code, County, Latitude/Longitude, Legislative District, Congressional District, Underserved (Overburdened/Vulnerable) Designation, Tribal Designation, $ Value of Food Distributed, Pounds of Food Distributed, Quality Acceptability.

ii. Distribution Site (i.e. Food Pantry serving clients): Name, Address, City, Zip Code, County, Latitude/Longitude, Legislative District, Congressional District, Underserved

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(Overburdened/Vulnerable) Designation, Tribal Designation, $ Value of Food Distributed, Pounds of Food Distributed, Quality Acceptability.

10.5. Narrative Closeout Report due at the end of the Agreement period.

10.6. Additional Reporting. Additional reporting may be requested in order to satisfy the reporting requirements of the Climate Commitment Act.

a. The funding source is state funding provided by Climate Commitment Act (CCA) funding which requires extensive reporting. The CCA supports Washington’s climate action efforts by putting cap-and-invest dollars to work reducing climate pollution, creating jobs, and improving public health. For information visit https://climate.wa.gov/

11. SUBGRANTEE MANAGEMENT. If the Grantee chooses (not required) to pass through funding to their Subgrantees, then the Grantee is responsible for verifying Subgrantees’ eligibility prior to entering into an Agreement. The Grantee must enter into a written Agreement with each Subgrantee, prior to providing any funding under this Agreement. Subgrantee Agreement templates are not provided by WSDA FA.

11.1. The Grantee must rely on itself or seek its own legal counsel to determine the adequacy of any provisions of any Subgrant it enters into with the Subgrantee.

11.2. With prior approval, the Grantee may include any additional terms in the Subgrant that the Grantee deems necessary for full compliance of its Subgrantee.

11.3. Each Subgrant shall be signed by both parties and bind the Subgrantee to all applicable terms of the Subgrant including, but not limited to, the program requirements under which the Subgrantee receives food or funds.

11.4. Each Subgrant must be in the legal name of the Subgrantee. The Grantee must use the Subgrantee ’s legal name in all documents referencing the Subgrantee that the Grantee submits to WSDA FA.

11.5. The Grantee shall submit copies of any executed Subgrant to WSDA FA within thirty (30) days of the Subgrant execution.

11.6. The Grantee shall ensure the Subgrantee continues to meet the program requirements to be eligible as a Subgrantee throughout the Subgrant term.

11.7. The Grantee shall ensure that the Subgrantee is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded in any Federal or State department or agency from participating in transactions.

11.8. Current insurance certifications, as applicable.

11.9. The Grantee must notify WSDA FA within ten (10) days of any changes to its Subgrantees.

11.10. The existence of a Subgrant shall not operate to release or reduce the liability of the Grantee to WSDA FA for any breach in the performance of the Grantee’s duties. The Grantee is fully responsible to WSDA FA if a Subgrantee fails to comply with any applicable term or condition of this Grant. The Grantee shall appropriately monitor the activities of all Subgrantees.

11.11. The Grantee shall take action to correct any Subgrantee non-compliance in conformance with the Subgrant requirements and the Grantee’s Corrective Action Policy for its Subgrantees.

11.12. The Grantee shall include a termination and suspension provision in all Subgrants that is substantially the same as the termination and suspension provisions in this Grant.

11.13. The Grantee shall amend Subgrantee’s Subgrant when the original terms and conditions of the Subgrant require modification such as when:

a. WSDA FA amends the Grantee’s Grant, and changes impact the Subgrantee Subgrant,

b. Funding level changes made to the Subgrantee’s award, https://climate.wa.gov/

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c. Corrections to the terms and conditions of the Subgrantee’s Subgrant, or

d. Any material modification which changes the terms and conditions to the Subgrantee’s Subgrant.

12. SUSPENSION AND DEBARMENT. The Grantee must conduct suspension and debarment checks prior to entering into any Subgrantee Agreement or Contract (vendor/contractor purchase) with value of $25,000 or more. See Paragraph 12, Certification Regarding Debarment, Suspension or Ineligibility and Voluntary Exclusion, in the General Terms and Conditions.

It is recommended the Grantee verify, at least annually, that its Sub Agencies and/or Vendors are not suspended or debarred. The Grantee should work with their auditor to determine the specific requirements.

13. PERIOD OF PERFORMANCE. The period of performance for funding under this Agreement is scheduled to begin on January 1, 2025, and end on August 31, 2025, which includes a two (2) month fiscal closeout period. Please note that all eligible expenses must be incurred between January 1, 2025, and June 30, 2025, the budget period start and end date.

14. ORDER OF PRECEDENCE. In the event of an inconsistency in this Agreement, the inconsistency shall be resolved by giving precedence in the following order:

14.1. Applicable federal and state statutes, regulations, and policies.

14.2. Face Sheet, and the documents incorporated by reference.

14.3. Special Terms and Conditions.

14.4. General Terms and Conditions.

14.5. RFP Application.

14.6. WSDA FA Handouts & Instructions, incorporated by reference from the Face Sheet.

14.7. Attachment A: Suspension and Debarment Certification.

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Food Assistance – Washington Commodities Donation Grant Program

GENERAL TERMS AND CONDITIONS

1. DEFINITIONS. Not all definitions relevant to the program are included. Please refer to the Special Terms and Conditions for additional definitions. As used throughout this Agreement, the following terms will have the meaning set forth below:

ADMINISTRATIVE EXPENSES: The expenses incurred in the overall operation and management of the organization that are direct billed. Salaries, wages, supplies, general expenses, and membership dues that are direct billed.

AGREEMENT: A written Agreement (Grant – state funding, Subaward – federal funding) between the Washington State Department of Agriculture Food Assistance (WSDA FA) and the Grantee identifying the rights and obligations of both parties governed by the Agreement, including the following list of exhibits, attachments or other documents incorporated by reference.

AUTHORIZED REPRESENTATIVE: For WSDA FA, means the WSDA FA designee authorized in writing to act on the Director’s behalf; for the Grantee, means the Authorized Signer.

AUTHORIZED SIGNATURE: Signature of the board president, tribal chairperson, agency director, or other official authorized to sign.

CFR: The Code of Federal Regulations.

CONTRACT: A written Agreement between the Washington State Department of Agriculture Food Assistance (WSDA FA) and the Contractor/Vendor identifying the rights and obligations of both parties governed by the Contract, including the following list of exhibits, attachments or other documents incorporated by reference.

CONFIDENTIAL INFORMATION: The Grantee must not use or disclose any information concerning WSDA FA for any purpose not directly connected with the administration of this Agreement, except with prior written consent of WSDA FA or as may be required by law. The Grantee must not release, divulge, publish, transfer, sell or otherwise make known to unauthorized persons, including anyone not directly employed by the Grantee, Confidential Information without the express written consent of WSDA FA or as otherwise required by law. The Grantee must protect Confidential Information collected, used, or acquired in connection with this Agreement against unauthorized use, disclosure, modification, or loss. The Grantee must ensure its directors, officers, employees, Subgrantees, or agents use Confidential Information solely for the purposes of accomplishing the services set forth by this Agreement.

DEBARMENT, SUSPENSION, AND INELIGIBILITY: The act of being suspended or being declared ineligible by any state or federal agency from participating in any transactions with them.

The Grantee certifies that neither it nor its principals are presently debarred, declared ineligible, or voluntarily excluded from participation in transactions by the State of Washington and, if federal funds are a source of funding for this Agreement, any federal department or agency.

DIRECT BUY: The ability to buy directly from a vendor and without competition. Direct buy purchases authorized by the Grantee has a limit that is less than $30,000 (excluding sales tax and finance charges). If a vendor is a microbusiness, minibusiness or a small business as defined by RCW 39.26.010, or from a certified veteran-owned business, or from a certified state Office of Minority and Women’s Business Enterprises (OMWBE) business, and has a limit that is less than $40,000 (excluding sales tax). Unless an acquisition is exempt, or it exceeds the direct buy limit, it must be competitively procured.

FOOD ASSISTANCE: Washington State Department of Agriculture Food Assistance (WSDA FA) programs.

GRANTEE (SUBRECIPIENT): The entity that holds a written Agreement with Washington State Department of Agriculture Food Assistance (WSDA FA) to implement the program at the local level and/or through its Subgrantees.

The term Grantee is used for state pass-through funded Grants. The term Subrecipient is used for federal pass-through funded Subawards. Also referred to as a provider.

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PERIOD OF PERFORMANCE: The timeframe when an eligible program expense may be incurred and includes additional time for fiscal closeout of each fiscal year as defined in the written Agreement.

PERSONALLY IDENTIFIABLE INFORMATION: Information identifiable to any person, including, but not limited to, information that relates to a person’s name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers, and “Protected Health Information” under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) Public Law No. 104-191, § 264, 110 Stat. 1936, any financial identifiers, and other information that may be exempt from public disclosure or other unauthorized persons under state and federal statutes.

RCW: Revised Code of Washington.

STATE: The state of Washington.

SUBGRANTEE: The entity that holds a written Agreement with a Grantee to implement the program at the local level. The term Subgrantee is used for state pass-through funded Subgrants. The term Subawardee is used for federal pass-through funded Sub-subawards. Also referred to as a provider.

SUBAWARDEE: The Food Pantry or Food Bank (Subgrantee) that has a written Agreement with the Grantee to implement the program. Used for federal pass-through funded Sub-subawards.

UNIFORM GUIDANCE: 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

USC: United States Code.

USDA: United State Department of Agriculture

VENDOR: An entity that provides goods or services on a fee-for-service or per-unit basis with contractual penalties if the entity fails to meet program performance standards. Also known as a Contractor. The designation of Contractor/Vendor will be identified in the Face Sheet of any written Contract.

WAC: Washington Administrative Code.

WSDA: The Washington State Department of Agriculture or its successor agency, if any.

2. ACCESS TO DATA. In compliance with Chapter 39.26 RCW, the Grantee must provide access to data generated under this Agreement to WSDA FA, the Joint Legislative Audit and Review Committee, and the State Auditor at no additional cost. This includes access to all information that supports the findings, conclusions, and recommendations of the Grantee’s reports, including computer models and methodology for those models.

3. ADVANCE PAYMENTS PROHIBITED. The Grantee must not request payments in advance of or in anticipation of goods or services to be provided under this Agreement.

4. ALL WRITINGS CONTAINED HEREIN. This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement will be deemed to exist or to bind any of the parties hereto.

5. AMENDMENTS. The parties may amend this Agreement by mutual consent. Such Amendments are not binding unless in writing and signed by personnel authorized to bind each of the parties.

6. AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336 ("ADA") 28 CFR Part 35). The Grantee must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications.

7. APPROVAL. This Agreement is not in effect unless signed by both the Grantee’s Authorized Representative and the WSDA FA Authorized Representative.

8. ASSIGNMENT. The Grantee must not transfer or assign this Agreement, or any claim arising under this Agreement, without prior written consent of the WSDA FA.

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8.1. WSDA FA under certain circumstances, may consider an assignment or transfer of an Agreement from a Grantee, however, only under the following circumstances:

a. The Grantee indicates an inability to perform services provided under the scope of work.

b. The Grantee is seeking an assignment to an entity that meets the eligibility criteria for the Subaward.

c. The entity to whom the Agreement would be assigned must meet all eligibility requirements, including having the financial capabilities to perform services under the Agreement’s scope of work.

8.2. If the Grantee’s Assignee does not meet eligibility and is not financially capable of performing under the Agreement, WSDA FA may at its discretion, and with the concurrence of the original Grantee, enter into a new Agreement with another eligible entity which does meet all eligibility requirements and is financially capable of performing services as outlined in the Agreement’s scope of work.

a. The original Grantee must, under both circumstances, sign a WSDA FA Assignment Agreement, which includes a requirement that the original Grantee remain responsible for all requirements of the Agreement that occurred prior to the Assignment.

8.3. WSDA FA under no circumstances will transfer or assign payment to an entity who is not the Grantee under this Agreement.

9. ATTORNEY’S FEES. In the event of litigation or other action brought to enforce the Agreement terms, each party bears its own attorney fees and costs.

10. AUDIT. The Grantee will meet the audit requirements and submit the required documents from this section to WSDA

FA.

11. CALCULATION OF TIME. Unless otherwise expressly stated, all time periods called for in this Agreement indicate calendar years, months, days.

12. CERTIFICATION REGARDING DEBARMENT, SUSPENSION OR INELIGIBILITY AND VOLUNTARY EXCLUSION. The Grantee, by signing this Agreement and the attached Suspension and Debarment Certification, certifies that the Grantee is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded in any Federal or State department or agency from participating in transactions.

12.1. Debarment and Suspension (Executive Orders 12549 and 12689), an Agreement (see 2 CFR Part 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR Part 180 that implement Executive Orders 12549 and 12689, “Debarment and Suspension.”

12.2. Non-procurement Debarment and Suspension (2 CFR Part 417), SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

12.3. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Non-procurement) (2 CFR Part 180), including the requirement to include a term or condition in all lower tier covered transactions (Agreements described in 2 CFR § 180.220) that the award is subject to 2 CFR Part 180.

12.4. The Grantee must conduct suspension and debarment checks prior to entering into any Agreement or Contract with a Contractor/Vendor with a value of $25,000 or more, including the requirement to include this language in all lower tier covered transactions.

12.5. The Grantee will not enter into any Agreements with any organization that is debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal or state department or agency from participating in transactions (2 CFR 180.300).

a. The Grantee will verify this by:

i. Checking SAM Exclusions; or

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ii. Collecting a certification from the Subgrantee stating it is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded; or

iii. Adding a clause or condition to the covered transaction.

b. The Grantee must retain verification or a copy of the signed certification according to its records retention policy.

12.6. The Grantee must complete the Suspension and Debarment Certification attached to this Agreement and retain a copy for their records.

13. CIVIL RIGHTS AND NON-DISCRIMINATION. The Grantee will ensure compliance with all federal, state, and local laws concerning civil rights and nondiscrimination.

13.1. The Grantee must practice nondiscrimination in the employment of individuals and the delivery of services in all programs of the organization. All have the right to be free from discrimination because of race, creed, color, national origin, sex (including gender identity and sexual orientation), honorably discharged veteran or military status, age, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability and this is recognized as and declared to be a civil right.

13.2. The Grantee and its agents, employees, and Subgrantees must comply with all applicable requirements regarding civil rights and prohibit discrimination against all individuals based on their race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older), or genetic information (including family history).

13.3. The Grantee will participate in any civil rights or nondiscrimination training as required.

14. CONFIDENTIALITY/SAFEGUARDING INFORMATION. “Confidential Information” as used in this section includes:

14.1. All material provided to the Grantee by WSDA FA that is designated as “confidential” by WSDA FA;

14.2. All material produced by the Grantee that is designated as “confidential” by WSDA FA; and

14.3. All Personally Identifiable Information (PII) in the possession of the Grantee that may not be disclosed under state or federal law.

14.4. The Grantee will comply with all state and federal laws related to the use, sharing, transfer, sale, or disclosure of Confidential Information.

14.5. The Grantee will use Confidential Information solely for the purposes of this Agreement and will not use, share, transfer, sell or disclose any Confidential Information to any third party except with the prior written consent of WSDA FA or as may be required by law.

14.6. The Grantee will take all necessary steps to assure that Confidential Information is safeguarded to prevent unauthorized use, sharing, transfer, sale or disclosure of Confidential Information or violation of any state or federal laws related thereto.

14.7. Upon request, the Grantee will provide WSDA FA with its policies and procedures on confidentiality.

14.8. WSDA FA may require changes to such policies and procedures as they apply to this Contract whenever WSDA FA reasonably determines that changes are necessary to prevent unauthorized disclosures.

14.9. The Grantee will make the changes within the time period specified by WSDA FA.

14.10. Upon request, the Grantee will immediately return to WSDA FA any Confidential Information that WSDA FA reasonably determines has not been adequately protected by the unauthorized disclosure.

a. Unauthorized Use or Disclosure. The Grantee will notify WSDA FA within five (5) business days of any unauthorized use or disclosure of any confidential information and will take necessary steps to mitigate the harmful effects of such use or disclosure.

15. CONFLICT OF INTEREST/ETHICS. Notwithstanding any determination by the Executive Ethics Board or other tribunal, WSDA FA may, in its sole discretion, by written notice, terminate this Agreement if it is found after due notice and

General Terms and Conditions Page 5 of 13 examination by WSDA FA that there is a violation of the Ethics in Public Service Act, Chapters 42.52 RCW and 42.23 RCW; or any similar statute involving the in the procurement of, or performance under this Agreement.

15.1. Specific restrictions apply to entering into an Agreement with current or former state employees pursuant to Chapter 42.52 RCW. The Grantee and their Subgrantees must identify any person employed in any capacity by the State of Washington that worked with the WSDA FA program executing this Agreement, including but not limited to formulating or drafting the legislation, participating in procurement planning and execution, awarding, and monitoring of Contracts during the 24-month period preceding the start date of this Agreement.

15.2. Identify the individual by name, the state agency by which previously or currently employed, the job title or position held, and separation date (if applicable).

15.3. If it is determined by WSDA FA that a conflict of interest exists, the Grantee may be disqualified from further consideration for the award of an Agreement.

15.4. In the event this Agreement is terminated as provided above, WSDA FA will be entitled to pursue the same remedies against the Grantee as it could pursue in the event of a breach of the Agreement by the Grantee.

The rights and remedies of WSDA FA provided for in this clause will not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which WSDA FA makes any determination under this clause will be an issue and may be reviewed as provided in the “Disputes” clause of this Agreement.

16. CONFORMANCE WITH LAW. If any part of this Agreement appears to violate any statute or rule, the provision may be interpreted to conform to statute or rule if such interpretation conforms to the purpose of this Agreement.

17. CONTINUED ELIGIBILITY. The Grantee will continue to meet the following requirements throughout the Agreement term:

17.1. If the Grantee is not a public agency or federally recognized tribe, the Grantee must be recognized by the Internal Revenue Service (IRS) as a 501(c)(3) organization. If the Grantee loses 501(c)(3) status during the Agreement term as a result of automatic revocation for failure to file reports, the Grantee remains provisionally eligible to receive funding but, within thirty (30) days of notice of termination, the Grantee must reapply for 501(c)(3) status and provide proof of reapplication to WSDA FA.

17.2. This Agreement terminates upon the Grantee's failure to timely provide proof of reapplication to WSDA FA, unless the Grantee can show good cause for the failure to reapply. The Grantee will forward documentation of IRS recognition of 501(c)(3) status to WSDA FA within 180 days of the reapplication date. This Agreement terminates if the Grantee's tax-exempt status is denied, or the Grantee fails to timely forward proof of status.

17.3. If the Grantee is not a public agency or federally recognized tribe, the Grantee must be registered with the Washington Secretary of State’s office as a nonprofit corporation.

17.4. Churches and religious organizations associated with a church are exempt from the obligations of Paragraph 17 except for Paragraph 17.3.

18. COPYRIGHT PROVISIONS. Unless otherwise provided, all materials produced under this Agreement are "works for hire," as defined by the U.S. Copyright Act, and owned by the WSDA FA.

18.1. WSDA FA will be considered the author of such Materials. In the event the Materials are not considered “works for hire” under the U.S. Copyright laws, the Grantee hereby irrevocably assigns all right, title, and interest in all Materials, including all intellectual property rights, moral rights, and rights of publicity to WSDA FA effective from the moment of creation of such Materials.

18.2. “Materials” means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. “Ownership” includes the right to copyright, patent, register and the ability to transfer these rights.

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18.3. For Materials that are delivered under the Agreement, but that incorporate pre-existing materials not produced under the Agreement, the Grantee hereby grants to WSDA FA a nonexclusive, royalty-free, irrevocable license (with rights to sublicense to others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display.

18.4. The Grantee warrants and represents that the Grantee has all rights and permissions, including intellectual property rights, moral rights, and rights of publicity, necessary to grant such a license to WSDA FA.

18.5. The Grantee will exert all reasonable effort to advise WSDA FA, at the time of delivery of Materials furnished under this Agreement, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Agreement.

18.6. The Grantee will provide WSDA FA with prompt written notice of each notice or claim of infringement received by the Grantee with respect to any Materials delivered under this Agreement. WSDA FA will have the right to modify or remove any restrictive markings placed upon the Materials by the Grantee.

19. COVENANT AGAINST CONTINGENT FEES. The Grantee warrants that no person or selling agent has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agents maintained by the Grantee for the purpose of securing business.

19.1. In the event of the Grantee's breach of this clause, the WSDA FA has the right to annul this Agreement without liability. In lieu of annulling the Agreement, the WSDA FA may deduct the full amount of such commission, percentage, brokerage, or contingent fee from the Agreement price or consideration.

20. CUMULATIVE RIGHTS AND REMEDIES. The rights and remedies of the WSDA FA provided for in this Agreement are cumulative and not exclusive. The exercise of any right or remedy does not preclude the exercise of any other rights or remedies available at law, regardless of whether the right or remedy is available at the time of the Agreement execution.

21. DISPUTES. Except as otherwise provided in this Agreement, when a dispute arises between WSDA FA and the Grantee that cannot be resolved by direct negotiation, the Grantee may request a dispute hearing by WSDA’s Director, who may designate another person (designee) to hear the dispute, as follows:

21.1. Grantee Disputes - The request for a dispute hearing must:

a. Be in writing;

b. State the disputed issue(s);

c. State the relative positions of the parties;

d. State the Grantee's name, address, and Agreement Number; and

The respondent must send a written answer to the requester’s statement to the Director and the requester within ten (10) business days. The Director must review the written statements and reply in writing to both parties within fifteen (15) business days. At the discretion of the Director or Director’s designee, the decision period may be extended upon notice to both parties.

21.2. Subgrantee Disputes – The Grantee must establish a written dispute resolution process for Subgrantees under the Subgrantee Agreement prior to execution and:

a. The dispute resolution process must not include WSDA FA as arbitrator or mediator in any disputes between parties.

b. Resolution of the dispute must be between the Grantee and the Subgrantee, without WSDA FA involvement.

c. WSDA FA may provide feedback to the Grantee when involved in a Subgrantee dispute, based solely on the direct relationship between the Grantee and WSDA FA.

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d. The Grantee shall provide a copy of the dispute process to all Subgrantee’s within 45 days of the Subgrantee Agreement execution date.

21.3. Dispute Resolution Resources - Authorized by the state legislature in the 1984 Court Improvement Act, Dispute Resolution Centers (DRCs) help create solutions to resolve disagreements by offering voluntary, confidential, informal, and non-adversarial alternatives to the legal system. Each DRC is a private, nonprofit organization or a service of local government with community-based facilitators. A list of DRCs by county may be found at: Washington State Dispute Resolution Centers.

This dispute process precedes any action in a judicial or quasi-judicial tribunal. Nothing in this Agreement limits the parties’ choice of a mutually acceptable alternate dispute resolution method in addition to the dispute resolution procedure outlined above.

22. DUPLICATE PAYMENT. The Grantee must not charge WSDA FA for the same services and expenses that the Grantee has charged or will charge to the state of Washington or any other party under any other Agreement. WSDA FA is not liable for duplicate payment of such charges.

23. GOVERNING LAW AND VENUE. This Agreement must be construed and interpreted in accordance with the laws of the state of Washington, and the venue of any action brought in connection with this Agreement is proper only in the Superior Court for Thurston County.

24. INCORPORATION OF REFERENCED DOCUMENTS. Unless otherwise expressly stated, all attachments and documents referenced in this Agreement are incorporated and made a part of this Agreement.

25. INDEMNIFICATION. To the fullest extent permitted by law, the Grantee will indemnify, defend, and hold harmless the state of Washington, WSDA FA, agencies of the State and all officials, agents, and employees of the State, from and against all claims for injuries or death arising out of or resulting from the performance of the Agreement.

25.1. “Claim” as used in this Agreement, means any financial loss, claim, suit, action, damage, or expense, including, but not limited to, attorney’s fees, attributable for bodily injury, sickness, disease, or death, or injury to or the destruction of tangible property including loss of use resulting therefrom.

25.2. The Grantee’s obligation to indemnify, defend, and hold harmless includes any claim by the Grantee’s agents, employees, representatives, or any Subgrantee or its employees.

a. The Grantee expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to the Grantee’s or any Subgrantee’s performance or failure to perform under the Agreement.

b. The Grantee’s obligation to indemnify, defend, and hold harmless the State will not be eliminated or reduced by any actual or alleged concurrent negligence of the State or its agents, agencies, employees, and officials.

25.3. The Grantee waives its immunity under Title 51 RCW, Industrial Insurance, to the extent it is required to indemnify, defend, and hold harmless the State and its agencies, officers, agents or employees.

26. INDEPENDENT CAPACITY OF THE GRANTEE. The parties intend that an independent relationship will be created by this Agreement. The Grantee and its employees or agents performing under this Agreement are not employees or agents of the State of Washington or WSDA. They will not hold themselves out as or claim to be an officer or employee of WSDA or of the State of Washington by reason hereof, nor will they make any claim of right, privilege or benefit which would accrue to such an officer or employee under law. Conduct and control of the work will be solely with the Grantee.

27. INDUSTRIAL INSURANCE COVERAGE. The Grantee must comply with the provisions of Title 51 RCW, Industrial Insurance. If the Grantee fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees, as may be required by law, the WSDA FA may collect from the Grantee the full amount payable to the Industrial Insurance accident fund. The WSDA FA may deduct the amount owed by the Grantee to the accident fund from the amount payable to the Grantee by the WSDA FA under this Agreement and transmit the https://www.courts.wa.gov/court_dir/?fa=court_dir.dispute

General Terms and Conditions Page 8 of 13 deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I’s rights to collect from the Grantee.

28. INSURANCE. The Grantee will maintain insurance coverage in full force and effect during the term of the Agreement.

28.1. Coverage must meet the following requirements:

a. Minimum public liability insurance coverage of $1,000,000 per occurrence.

b. Theft coverage of not less than the replacement value of equipment and inventory purchased with funds when the acquisition cost was $10,000 or more.

c. For using motor vehicles in conducting activities, minimum liability coverage of $1,000,000 per occurrence, using a Combined Single Limit for bodily injury and property; in addition, collision, and comprehensive insurance against physical damage, including theft, will…