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4.03 AGAB Fund Storm Drain
G~~~ OF DU~~ti ~9~~~ X82 STAFF REPORT CITY C L E R K ``~~~~ `~~1C~ ~~ DUBLIN CITY COUNCIL Flle # ^~©^0 -©® DATE: October 20, 2009 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJECT: Approval of Contract for Services with Association of Bay Area Governments to Fund Village Parkway Storm Drain Inlet Filter Inserts, Amador Valley Boulevard to Brighton Drive Prepared By: Mark Lander, City Engineer EXECUTIVE SUMMARY: The City of Dublin is eligible for funding through the Association of Bay Area Governments (ABAG) to purchase and install storm drain inlet filter inserts on Village Parkway between Amador Valley Boulevard and Brighton Drive. City Council approval of a Contract for Services with ABAG is required, along with authorization to purchase the inserts and approval of a budget change to reflect additional funding and expenditures. FINANCIAL IMPACT: The cost of installing the filters will be offset by a grant. ABAG will reimburse the City $4,939 for installation of 15 storm drain inlet filter inserts. Annual maintenance costs are estimated to be $1,755. Maintenance costs for the remainder of Fiscal Year 2009-2010 are estimated to be $1,160 and are proposed to be offset by applying to the State of California for recycled oil block grant funds. A budget change is required in the Street Maintenance Storm Drain Maintenance Activity. The Budget Change will also recognize the anticipated receipt of grant funding offsetting the full cost of installation and maintenance. RECOMMENDATION: 1. Adopt the Resolution Approving the Contract For Services With The Association of Bay Area Governments For The Village Parkway Storm Drain Inlet Filter Insert Project; 2. Approve a Budget Change; and 3. Authorize Staff to issue a Purchase Order in the amount of $4,939 to Revel Environmental Manufacturing, Inc. ,,,,, ~/(~/ Submitted By Rev wed y Public Works Director Assistant anager Page 1 of 3 ITEM NO. ~• G DESCRIPTION: The Association of Bay Area Governments (ABAG) has obtained grant funding in the amount of $5 Million from the State Water Resources Control Board (SWRCB) for the Bay Area Trash Capture Demonstration Project. The funds are from the American Recovery and Reinvestment Act of 2009 (ARRA) provided through the United States Environmental Protection Agency to the SWRCB, for distribution through the Clean Water State Revolving Fund. The Project is intended as a pilot project to install and assess various types of trash capture equipment in storm drain systems throughout the Bay Area, which will assist local governments in meeting trash capture requirements under the upcoming Municipal Regional Permit for Stormwater (MRP). ABAG, in developing the grant proposal, solicited input from Bay Area cities and counties for shovel-ready trash capture projects, and received responses from approximately 20 jurisdictions, including the City of Dublin. The City has two projects listed in the grant: 1) installation of 10 to 20 storm drain filter inserts on Village Parkway ($12,000), and 2) installation of a hydrodynamic separator storm drain manhole at the West Dublin BART Station ($300,000). The separator storm drain manhole project will be considered by the City Council at a future date. ABAG is required under the grant to show early progress in implementation, and needs to complete a minor component of the project in November of this year. ABAG has requested assistance from participating municipalities in meeting this requirement. In response to ABAG's request, Public Works Staff has requested a proposal from Revel Environmental Manufacturing, Inc. (REM), for the installation of 15 Triton storm drain inlet filter inserts in Village Parkway between Amador Valley Boulevard and Brighton Drive (locations are shown on Attachment 1). This location had been previously identified by Staff as having a high trash generation rate because of its proximity to takeout restaurants and other uses in the City's commercial core, and it would serve as a good location for a pilot demonstration project. REM has previously installed two similar filters at the Dublin Sports Grounds which have performed satisfactorily over the last year (there are also approximately 300 of these units installed in commercial and residential developments, such as Hacienda Crossings, Dublin Place Retail, the Downtown Safeway, and the Archstone Emerald Glen Apartments, with no apparent problems). A picture of an insert installed under a pilot project in another city is shown on Attachment 2. The cost for the initial installation of 15 units is $4,939 (Attachment 3), which is within the $5,000 limit allowed under the California Public Contracting Code without a formal bid. Since the filters are a specialized product, Staff has not solicited three competitive bids and proposes a sole-source contract for the purchase and installation of the filters (the contract would be in the form of a purchase order). ABAG has reviewed this process and indicates that it is in conformance with ABAG, SWRCB, and ARRA guidelines. A Budget Change in the amount of $4,939 to Drainage Maintenance in the Streets Maintenance Operating Budget is required to reflect the additional funding and expenditures for the inserts (Attachment 4). In addition, the Budget Change will also recognize the receipt for the Federal Grant funds as apass-through grant from ABAG. Page 2 of 3 Ongoing maintenance of the filters will be provided by REM under a separate contract. The annual cost for 15 units is $1,755. This provides for the cleaning of inserts and the replacement of the filters three times annually. It is expected that over the remainder of the Fiscal Year, only two cleanings will occur resulting in a cost of $1,160 for Fiscal Year 2009-2010. The City's Environmental Services Group determined that an application may be made to the State for recycled oil block grant funds to offset the maintenance cost. Therefore, the Budget Change will also address Recycled Oil Block Grant revenue and maintenance expenditure. NOTICING REQUIREMENTS/PUBLIC OUTREACH: Not Applicable ATTACHMENTS: 1. Vicinity Map 2. Picture of Storm Inlet Filter Insert 3. Proposal by Revel Environmental Manufacturing, Inc. in the Amount of $4,938.75 for Storm Inlet Filter Insert Installation 4. Budget Change 5. Resolution Approving the Contract For Services With The Association of Bay Area Governments For The Village Parkway Storm Drain Inlet Filter Insert Project G:\NPDES\ABAG ARRA Trash Demo Project\staff report ABAG Contract 10-20-09 rev.doc Page 3 of 3 City of Dublin Trash Capture Demonstration Project z~ ~ e00 ,.2~ U 1 inch =.400. fee A I I A ~ M M t N Feet 3 ~ t~~~ ~~.~- ~A .w ~~ www remfilters.com Revel Environmentallt~anufacturinglnc, sales~remfilters.tom (888) Sz6-4736 Lic. No. 857410 Northern California 960-B Detroit Avenue Concord, California 94518 P: (925) G7G-473G F: (9z5) G7G-8G7G Sou~hern California z 1.10 South Grand Avenue Santa Ana, California 92705 P: (714) 557-2G7G F: (714) 557-2G79 I Name/Address I City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: Mazk Lander ESTIMATE DATE ESTIMATE NO. 9/17/2009 4496 Project City of Dublin X100 Civic Plaza Dublin, CA 94568 Attn: Mark Lander REP Project /Location F.O.B. MJS City of Dublin Concord, CA ITEM CODE DESCRIPTION QUANTITY COST TOTAL Dublin Type "A" TRITON Filter Configured for the standazd Dublin Type "A" Catch Basin. 15 300.00 4,SOO.OOT (Price includes installation) City of Dublin -Village Parkway between Amador Valley Boulevard & Brighton Drive Project If you have any questions regarding this goute, please don't hesitate to call. Subtotal $4,soo.oo To confirm and place order, please sign and return via fax to (92S) 676 8676 Sales Tax (9.75%) $438.75 Date•• Po#' TOTAL $4,938.75 By (printed name): Signature: ANT -~ ATTAC CITY OF DUBLIN BUDGET CHANGE FORM FY 2009 / 2010 CHANGE FORM # r } ,f New Appropriations (City Council Approval Required): From Unappropriated Reserves (General Fund) X From New Revenues DECREASE BUDGET ACCOUNT AMOUNT Budget Transfers: _ From Budgeted Contingent Reserve (1080-799.000) Within Same Department Activity Between Departments (City Council Approval Required) Other :::.INCREASE BUDGET ACCOUNT AMOUNT Name: REVENUE: -Environmental - ARRA Fund -Intergovernmental -Federal $ 4 939 GL Account #: 2311.0000.47101 Name: EXPENSE: ARRA Fund -Street Maintenance -Capital- Improvements Not $ 4 939 Buildings GL Account #: 2311.3201.73103 Name: REVENUE: -Environmental - Measure D-State Grants Used Oil Recycling $1,160 GL Account #: 2302.0000.47261 Name: EXPENSE: Recycling Fund -Street Maintenance -Contract Services -Drainage $ 1 160 Maintenance GL Account #: 2302.3201.64076 Fin Mgr/ASD: Signature Date: f ~ I'z- boo REASON FOR BUDGET CHANGE ENTRY: At the City Council meeting on October 20, 2009 the City Council considered acceptance of apass-through grant from the Association of Bay Area Governments (ABAG) to install 15 storm drain filters at a cost of $4,939. This budget change will account for both the expenditure and the grant revenue. In addition the new filters will result in unbudgeted maintenance costs estimated at $1,160 for Fiscal Year 2009-2010. This Budget Change will provide an appropriation for these costs. The proposed funding source for the maintenance costs is a California recycled oil block grant. The Budget also recognizes this special revenue source. City Manager: Signature Date: As Approved at the Ci~~ Council Meeting. on: Date: 10/20/2009 Mayor: Signature Posted By: Signature Date: Date: c: rr~,dg~, cna„yes z_zoov_,o a_,o_ao ~9_ABAG_StormDraln_Gran[DO~. ATTA C H M E N T ,., ~? ~~.,; k RESOLUTION NO. - 09 A RESOLUTION OF THE CITY COUNCIL r)F THE CITY OF DUBLIN APPROVING CONTRACT FOR SERVICES WITH THE ASSOCIATION OF BAY AREA GOVERNMENTS FOR THE VILLAGE PARKWAY STORM DRAIN INLET FILTER INSERT PROJECT WHEREAS, the Association of Bay Area Governments (ABAG) has obtained a grant in the amount of $5,000,000 from the State Water Resources Control Board's State Clean Water Revolving Fund for the Bay Area Trash Capture Demonstration Project (Project); and WHEREAS, the Project is intended as a pilot project to install and assess various types of trash capture equipment in storm drain systems throughout the Bay Area, and will assist local governments in meeting trash capture requirements under the upcoming Municipal Regional Permit for Stormwater to be issued by the San Francisco Bay Regional Water Quality Control Board; and WHEREAS, the Project includes the installation of storm drain inlet filter inserts on Village Parkway from Amador Valley Boulevard to Brighton Drive, and the City of Dublin is eligible for a portion of the ABAG grant funds for use in purchasing and installing the filters; and WHEREAS, ABAG has prepared a Contract For Services (Contract), under which the City will agree to install and maintain the filters and ABAG will agree to reimburse the City for these costs in an amount not to exceed $5,000; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Contract between ABAG and the City of Dublin. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Contract, attached hereto as Exhibit "A". BE IT FURTHER RESOLVED that the City Clerk of the City of Dublin is hereby directed to transmit a certified copy of this Resolution, together with duplicate executed copies of the Contract, to ABAG for approval and processing. PASSED, APPROVED AND ADOPTED this 20th day of October, 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor "°°"`."~° ATTACHMENT S. ASSOCIATION OF BAY AREA GOVERNMENTS ~ ~~ r~ CONTRACT FOR SERVICES This contract is made and entered into effective , by and between the Association of Bay Area Governments (ABAG), a public entity formed under the California Joint Exercise of Powers Act, Government Code Section 6500, et seq. and City of Dublin (Contractor). 1. Employment of Contractor ABAG agrees to engage Contractor and Contractor agrees to undertake, carry out, and complete in a satisfactory and proper manner certain work and services set forth in the attached Exhibit A, Scope of Work, which is incorporated herein. 2. Time of Performance Contractor shall begin performance of the services set forth in Exhibit A upon receipt of Notice to Proceed or no later than November 30, 2009. Such services shall be undertaken in such sequence as to assure their expeditious completion in the light of the purposes of this Contract, but in any event all construction shall be completed by January 31, 2010, and all other services and a final construction project invoice shall be completed and submitted to ABAG by February 15, 2010. 3. Subcontractors Contractor is fully responsible for all work performed under this Contract including subcontracted work. Subcontract terms and conditions must include all applicable contract terms and conditions as provided herein. Subcontractor agreements require prior approval by ABAG, unless the subcontract is already part of the contract. Any amendments to subcontracts must be approved by ABAG. In obtaining a subcontract, the Contractor must obtain at least three (3) competitive bids, or comply with the provisions of Government Code Section 4525 et seq., as applicable, or provide written justification for nonfulfillment of these requirements. Upon termination of any subcontract, ABAG shall be notified immediately. 4. Compensation and Method of Patent Contractor shall be compensated for all services to be rendered under this Contract in a maximum sum not to exceed five thousand dollars ($5,000.00). Compensation by ABAG to Contractor shall be payable as set forth in attached Exhibit A. Contractor shall submit invoices for payment no more frequently than once monthly and shall be paid in arrears. Invoices shall be submitted in accordance with "Invoicing Procedures" as set forth in Exhibit A. ABAG shall review Contractor's invoices and approve or disapprove them for payment, which shall be made by ABAG as appropriate. 5. Availability of Funds This Contract shall be contingent upon funds being appropriated to ABAG for the purposes of this contract. ABAG shall pay invoices within fourteen (14) days of receiving payment from Clean Water State Revolving Fund (CWSRD). If sufficient funds are not made available, ABAG has the option of immediately voiding this contract by giving written notice of same to Contractor. 6. Insurance Requirements Contractor shall, at its own expense, obtain and maintain in effect at all times during the life of this Contract the insurance coverages set forth in Exhibit B, which is hereby made part of this Contract. 7. Findings Confidential To the extent allowed by law, including but not limited to the California Public Records Act, any reports, information, data, etc. given to, prepared, or assembled by Contractor shall be kept as confidential and shall not be made available to any individual or organization by Contractor without the prior written approval of Page 1 EXHIBIT /q. Tr, +ho C?o~nli i~inn ABAG. ~r~a~ 8. Entire Agreement This contract and its attachment are entire as to the services to be rendered under it. This contract supersedes any and all other contracts either oral or in writing between ABAG and Contractor with respect to the subject matter hereof, including the Prior Agreement, and contains all of the covenants and contracts between the parties with respect to such matters. ABAG and Contractor acknowledge that no representations, inducements, promises or agreements, orally or otherwise, have been made to any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other contracts, statement, or promise not contained in this Contract shall be valid or binding. 9. Conflict of Interest Contractor covenants that presently there is no interest, and none shall be acquired, direct or indirect, which conflicts in any manner or degree with its performance of services as required under this Contract.. Contractor further covenants that in the performance of this Contract, no person having any interest shall be employed by it. 10. Notices Any notices, demands, or elections required or permitted to be given or made hereunder shall be in writing, shall be personally delivered or mailed by certified or registered mail, return receipt requested, addressed to the respective parties as follows: ABAG San Francisco Estuary Partnership 1515 Clay Street, Suite 1400 Oakland, CA 94612 Attn.: Janet Cox PH: (510) 622-2334 FAX: (510) 622-2459 Email: JanetC@abag.ca.gov and Contractor City of Dublin Attention: Mark Lander 100 Civic Plaza Dublin, CA 94568 PH: (925) 833-6630 FAX: (925) 829-9248 Email: Mark.Lander@ci.dublin.ca.us 11. Binding on Heirs This contract shall be binding upon the heirs, successors, assigns, or transferees, of ABAG or Contractor, as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this Contract other than as provided above. Page 2 r ' ~~> 12. Other Contract Provisions This Contract shall be subject to the Standard Contract Provisions and Federal ARRA Contract Provisions as set forth in Exhibits B and C, respectively, which are incorporated herein by this reference. IN WITNESS WHEREOF, the parties have executed this Contract on the dates set forth below. Dated: Dated: City of Dublin City Manager (Tax ID #) ASSOCIATION OF BAY AREA GOVERNMENTS: Henry L. Gardner Executive Director Approved as to legal form and content: Kenneth K. Moy, Legal Counsel Association of Bay Area Governments Approved as to legal form and content: City Attorney, City of Dublin Attest: District Clerk Date: Page 3 EXHIBIT A SCOPE OF WORK OVERVIEW ~ ~. ~: :a. The Project generally consists of installing storm water treatment devices in catch basins in Dublin, California. These devices will meet the Los Angeles Regional Water Board definition of Full Trash Capture Devices, which are defined as any device or series of devices that trap all particles retained by a Smm mesh screen and that has a hydraulic design treatment capacity of not less than the peak flow rate resulting from a one-year, one-hour storm in the storm drainage catchment area draining to the device(s). The Project will install 15 storm drain inlet filter inserts on Village Parkway, between Amador Valley Boulevard and Brighton Drive, ahigh-trash generating area. The inserts will be Triton TH-Series for Type A Inlets, manufactured by REM, Inc., Concord, CA. Village Parkway is a four-lane arterial street. 1. The Recipient agrees to initiate construction no later than November 30, 2009. The City of Dublin shall notify the Association of Bay Area Governments in writing when construction begins. TIME IS OF THE ESSENCE. FAILURE TO MEET THIS DATE WILL RESULT IN AUTOMATIC TERMINATION OF THIS AGREEMENT AND IMMEDIATE REPAYMENT OF ANY FUNDS DISBURSED HEREUNDER. 2. Completion of Construction date is hereby established as January 31, 2010. The City of Dublin shall notify the Association of Bay Area Governments in writing upon completion of construction and inspection by City staff. 3. The Project Completion date is hereby established as February 15, 2010. 4. The Project, commonly known as Bay Area-wide Trash Capture Demonstration Project, will retrofit Bay Area storm drainage infrastructure by installing trash capture devices, in order to address trash impairment of San Francisco Bay and local creeks. The Project will facilitate early compliance with the San Francisco Bay Regional Water Quality Board's Municipal Regional Stormwater Permit (pending) affecting Phase I communities, as more particularly described in the financial assistance application of the Agency and the accepted plans and specifications of the Project, if any. 5. This project enables the Bay Area-wide Trash Capture Demonstration Project, funded by the American Recovery and Reinvestment Act monies awarded by the State Water Resources Control Board's Clean Water State Revolving Fund, to meet the State Water Board's requirement that construction begin no later than November 30, 2009. Incorporated by reference into this Agreement are the following documents: a. The Facility Plan Approval and Preliminary Funding Commitment for the Bay Area-wide Trash Capture Demonstration Project, signed by representatives of the State Water Board and the Association of Bay Area Governments; b. The Project Finance Agreement for State Revolving Fund Project No.C-06-6441-110, the Bay Area-wide Trash Capture Demonstration Project, signed by representatives of the State Water Board and the Association of Bay Area Governments; c. The Final Plans and Specifications for the City of Dublin's trash capture devices to be installed under terms of this contract, which are the basis for the construction contract to be awarded by the City of Dublin; and Page 4 )~ ~~. d. The Notice of Exemption from the California Environmental Quality Act, filed by the Association of Bay Area Governments for the Bay Area-wide Trash Capture Demonstration Project, of which this project is a part. 6. Maintenance: The City of Dublin shall operate and maintain the devices properly for 2 years of the design life of the devices, according to Exhibit C, Section 4.14. 7. Trash Monitoring and Reporting: The City of Dublin shall monitor and report trash collection from the devices according to protocols and procedures to be developed by the Bay Area-wide Trash Capture Demonstration Project. TABLE OF ITEMS FOR REVIEW (DELIVERABLES SCHEDULE) CRITICAL ESTIMATED DESCRIPTION DUE DUE DATE DATE PLANNING AND DESIGN Final Plans and Specifications November 1, 2009 Project Construction Contract Award for initial November construction/installation 23, 2009 CONSTRUCTION Photos of Construction Work Quarterly, as a licable Final Inspection Notes Quarterly, as a licable MONITORING Post-construction monitoring data Annually, or as re uired INVOICING Monthly PROJECT REPORTING By Report to ABAG in writing when construction begins November 30, 2009 Report to ABAG in writing when construction is By January completed 31, 2010 INVOICING PROCEDURES Contractor shall prepare and submit to ABAG, no more frequently than quarterly, a statement of work performed in that period. Each invoice shall specify in detail number of hours worked and billing rate for each employee working on the project under the specific task worked. Supporting documentation for other direct costs (e.g., receipts) must be submitted with each invoice to support request for grant funds as well as Page 5 to support matching funds. Contractor shall be paid in arrears. PROJECT FINANCING AMOUNT ~ ~ ~?~ 1. Estimated Reasonable Cost. The estimated reasonable cost of the total Project, including associated planning and design costs is FIVE THOUSAND dollars and no cents ($5,000). 2. Project Funding. Subject to the terms of this Agreement, the State Water Board agrees to provide Project Funds in the amount of FIVE THOUSAND dollars and no cents ($5,000). 3. The term of this agreement is from the date specified on the first page of this document to February 15, 2010. 5. Budget costs are as follows: `°'~`~ FINANCING TOTAL Direct Project Expenses $5,000.00 $5,000.00 TOTAL $5,000.00 $5,000.00 Page 6 l~ ~ ~ ~' EXHIBIT B ~; STANDARD CONTRACT PROVISIONS Conflict of Interest. No employee, officer, or agent of ABAG shall participate in selection, or in the award or administration of a contract if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: a) The employee, officer or agent; b) Any member of his or her immediate family; c) His or her partner; or d) An organization which employs, or is about to employ, any of the above has a financial or other interest in the firm selected for award. ABAG's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subcontracts. 2. Extensions of Time. The granting of or acceptance of extensions of time to complete performance by Contractor will not operate as a release to Contractor or otherwise modify the terms and conditions of this Contract. 3. Headings. The descriptive headings used in this Contract are for convenience only and shall not control or affect the meaning or construction of any of its provisions. 4. Prohibited Interest. Contractor's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subcontracts. Remedies Cumulative. The remedies conferred by this Contract upon ABAG are not intended to be exclusive, but are cumulative and in addition to all other remedies provided by law. 6. Severability. Should any part of this Contract be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Contract, which shall continue in full force and effect; provided that, the remainder of this Contract can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties. 7. Insurance Requirements. Contractor shall procure and maintain for the duration of this Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees. Contractor may satisfy all of the requirements of this Section 7 and of Section 8 by documentation of its membership in a California government agency self-insurance risk pool with coverage at least as broad as the Insurance Requirements set out in this Contract. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1) Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001). 2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). 3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Page 7 ~. , /' .r 4' 4) Errors and Omissions Liability insurance appropriate to the Contractor's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability. The City is not required to obtain Errors and Omissions Liability insurance for work and services provided by its own employees or officials. b. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3) Emplo~r's Liability: $1,000,000 per accident for bodily injury or disease. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by ABAG. At the option of ABAG, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects ABAG, its officers, officials, employees and volunteers; or the Contractor shall provide a financial guarantee satisfactory to ABAG guaranteeing payment of losses and related investigations, claim administration and defense expenses. (Including operations, products and completed operations, as applicable.). d. Other Insurance Provisions. The Contractor will cause its self-insurance government agency risk pool, to provide documentation of the following: 1) ABAG, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. 2) For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects ABAG, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by ABAG, its officers, officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to ABAG. 4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Acceptability of Insurers. Based on Contractor's representation that its self-insurance agency risk pool is solvent and funded at prudent levels, ABAG accepts the coverage provided in lieu of commercial insurance. f. Verification of Coverage. Contractor shall furnish ABAG with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by ABAG before work commences. ABAG reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time. Page 8 I~ `~ ~....~,ll C.._:... r~ EXHIBIT C FEDERAL ARRA CONTRACT PROVISIONS ARTICLE I: DEFINITIONS "Recipient" as used in Exhibits C, C-2, C-3, C-4 and C-5 is the City of Dublin. ARTICLE II: REPRESENTATIONS AND WARRANTIES 2.1 General Recipient Commitments. The Recipient accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and commitments made by the Recipient in its application, accompanying documents, and communications filed in support of its request for financial assistance. 2.2 Completion of Project. The Recipient agrees to expeditiously proceed with and complete construction of the Project in substantial accordance with Exhibit A. 2.3 Project Certification. The Recipient shall prepare a Project Certification that includes information collected by the Recipient in accordance with the Bay Area-wide Trash Capture Demonstration Project monitoring and reporting plan, a determination of the effectiveness of the Project in preventing or reducing pollution, and the results of the monitoring program. The Project Certification shall follow the general format provided by the Bay Area- wide Trash Capture Demonstration Project. Failure to submit a Project Certification, an affirmative certification, or a corrective action report that meets the above requirements and is satisfactory to the Division within fifteen (15) months of the Project Completion date will cause the State Water Board to stop processing any pending or future applications for new financial assistance, withhold payments on any existing financial assistance, and begin administrative proceedings pursuant to sections 13267 and 13268 of the Water Code. 2.4 Award of Construction Contracts. (a) The Recipient agrees to award the prime construction contract no later than the date specified in Exhibit A. Failure to meet this date will have serious consequences, as specified in Exhibit B. (b) The Recipient agrees to promptly notify the ABAG Contract Manager in writing both of the award of the prime construction contract for the Project and of Initiation of Construction of the Project. (c) The Recipient agrees to make all reasonable efforts to complete construction in substantial conformance with the terms of the contract by the Completion of Construction date established in Exhibit A. Such date shall be binding upon the Recipient unless modified in writing by the Division upon a showing of good cause by the Recipient. The Recipient shall deliver any request for extension of the Completion of Construction date no less than 90 days prior to the Completion of Construction date. The Division will not reasonably deny such a timely request, but the Division will deny requests received after this time. 2.5 Notice. The Recipient agrees to promptly notify the ABAG Contract Manager in writing of: (a) Litigation, circulation of a petition to challenge rates, consideration of bankruptcy, dissolution, or disincorporation, or any other thing that could negatively affect or jeopardize the Recipient's revenues used for operations, maintenance, and repairs of the Project during its useful life. Page 9 ~r'~ l~ '4c,,..~• '.. ~, b An substantial Chan e in sco e of the Pro~ect. The Reci Tent a rees that no substantial Chan e fn the () Y g p J p g g scope of the Project will be undertaken until written notice of the proposed change has been provided to the State Water Board SRF Division and the Division has given written approval for such change; (c) Cessation of all major construction work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more; (d) Any circumstance, combination of circumstances, or condition, which is expected to or does delay Completion of Construction for a period of ninety (90) days or more beyond the estimated date of Completion of Construction previously provided to the Division; (e) Discovery of any potential archeological or historical resource. Should a potential archeological or historical resource be discovered during construction of the Project, the Recipient agrees that all work in the area of the find will cease until a qualified archeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Division has determined what actions should be taken to protect and preserve the resource. The Recipient agrees to implement appropriate actions as directed by the Division; (f) Discovery of any unexpected endangered or threatened species, as defined in the federal Endangered Species Act. Should a federally protected species be unexpectedly encountered during construction of the Project, the Recipient agrees to promptly notify the ABAG Contract Manager. This notification is in addition to the Recipient's obligations under the federal Endangered Species Act; (g) Any monitoring, demonstration, or other implementation activities such that the State Water Board and/or Regional Water Quality Control Board (Regional Water Board) staff may observe and document such activities; (h) Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by state and federal representatives with at least ten (10) working days notice; and, (i) Completion of Construction of the Project, and actual Project Completion. 2.6 Project Access. The Recipient agrees to insure that ABAG, the State Water Board, the Governor of the State, the United States Environmental Protection Agency (USEPA), the Office of Inspector General, any member of Congress, the President of the United States, or any authorized representative of the foregoing, will have suitable access to the Project site at all reasonable times during Project construction and thereafter for the life of the Project. The Recipient acknowledges that the Project records and locations are public records. 2.7 Project Completion; Initiation of Operations. Upon Completion of Construction of the Project, the Recipient agrees to expeditiously initiate Project operations. The Recipient agrees to make all reasonable efforts to meet the Project Completion date established in Exhibit A. Such date shall be binding upon the Recipient unless modified in writing by ABAG upon a showing of good cause by the Recipient. The Recipient shall deliver any request for extension of the Project Completion date no less than ninety (90) days prior to the Project Completion date. ABAG will not unreasonably deny such a timely request, but the Division will deny requests received after this time. 2.8 Continuous Use of Project; Lease or Disposal of Project. The Recipient agrees that, except as provided in the Agreement, it will not abandon, substantially discontinue use of, lease, or dispose of the Project or any significant part or portion thereof during the useful life of the Project without prior written approval of the ABAG and the Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all Project Funds together with accrued interest and any penalty assessments which may be due. 2.9 Reports. (a) Quarterly Reports. The Recipient agrees to expeditiously provide status reports no less frequently than Page 10 l~ ~^ M,, quarterly, or as required by the Bay Area Trash Capture Demonstration Project. At a minimum the re orts will contain the following information: a summary of progress to date including a description of progress since the last report, percent construction complete, percent contractor invoiced, and percent schedule elapsed; a listing of change orders including amount, description of work, and change in contract amount and schedule; any problems encountered, proposed resolution, schedule for resolution, status of previous problem resolutions, and number of jobs created or preserved due to the Project. (b) As Needed Reports. The Recipient agrees to expeditiously provide, during the term of this Agreement, such reports, data, and information as may be reasonably required by ABAG or the Division, including but not limited to material necessary or appropriate for evaluation of the CWSRF Program or to fulfill any reporting requirements of the federal government. 2.11 Records. (a) Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles the Recipient agrees to: (1) Establish an official file for the Project which shall adequately document all significant actions relative to the Project; (2) Establish separate accounts which will adequately and accurately depict all amounts received and expended on the Project, including all assistance funds received under this Agreement; (3) Establish separate accounts which will adequately depict all income received which is attributable to the Project, specifically including any income attributable to assistance funds disbursed under this Agreement; (4) Establish an accounting system which will accurately depict final total costs of the Project, including both direct and indirect costs; (5) Establish such accounts and maintain such records as may be necessary for the State to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and (6) If a Force Account is used by the Recipient for any phase of the Project, other than for planning, design and construction engineering, and administration provided for by allowance, accounts will be established which reasonably document all employee hours charged to the Project and the associated tasks performed by each employee. (b) The Recipient shall be required to maintain books, records and other material relative to the Project in accordance with generally accepted accounting principles. The Recipient shall also be required to retain such books, records, and other material for each subcontractor who performed work on this project for a minimum of six (6) years after repayment of Project Funds, if any, or six (6) years after Project Completion if no repayment is required. The Recipient shall require that such books, records, and other material be subject at all reasonable times (at a minimum during normal business hours) to inspection, copying, and audit by the State Water Board, the Bureau of State Audits, the USEPA, the Office of Inspector General, or any authorized representatives of the aforementioned, and shall allow interviews during normal business hours of any employees who might reasonably have information related to such records. The Recipient agrees to include a similar right regarding audit, interviews, and records retention in any subcontract related to the performance of this Agreement. 2.12 Audit. The Recipient shall comply with the audit requirements in the CWSRF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project. 2.13 Signage. The Recipient shall post project posters inside its city hall and by posting notice on the its website until the Completion of Construction date specified in Exhibit A. Both posters and website notices shall include the following color logos: Page 11 l~~.~ ~~ .~ r~ I~a~~ r.-~ ~~~~*~ Water Boards (logos available from the Division) and the following disclosure statement: Funding for this project has been provided in full or in part by the American Recovery and Reinvestment Act of 2009 and the Clean Water State Revolving Fund, through an agreement with the State Water Resources Control Board. The Project poster and website notice may include another agency's required promotional information so long as the above logos and disclosure statement ire equally prominent on the posters and website notice. The poster and website notice shall be prepared in a professional manner. Include the following disclosure statement in any document, written report, or brochure prepared in whole or in part pursuant to this Agreement: Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board. The contents of this document do not necessarily reflect the views and policies of the State Water Resources Control Board, nor does mention of trade names or commercial products constitute endorsement or recommendation for use. (Gov. Code, § 7550, 40 CFR § 31.20.) ARTICLE III: FINANCING PROVISIONS 3.1 Amounts Payable by the Recipient. (a) Contingent Obligation to Repay Project Funds. The Recipient's obligation to repay Project Funds is forgiven contingent on meeting the requirements of ARRA and Exhibit A. Failure to meet these requirements for any reason whatsoever, within or outside the control of the Recipient, will result in automatic suspension and termination of this Agreement and immediate repayment of all disbursed Project Funds plus interest at the highest legal rate due immediately whether or not the System or any part thereof is operating or operable or has been completed, or its use is suspended, interfered with, reduced or curtailed or terminated in whole or in part. (b) Where repayment is required, the Recipient as a whole is obligated to make all payments required by this Agreement to the State Water Board through ABAG, notwithstanding any individual default by its constituents or others in the payment to the Recipient of fees, charges, taxes, assessments, tolls or other charges ("Charges") levied or imposed by the Recipient. The Recipient shall provide for the punctual payment to the State Water Board through ABAG of all amounts which become due under this Agreement and which are received from constituents or others in the payment to the Recipient. In the event of failure, neglect or refusal of any officer of the Recipient to levy or cause to be levied any Charge to provide payment by the Recipient under this Agreement, to enforce or to collect such Charge, or to pay over to the State Water Board any money collected on account of such Charge necessary to satisfy any amount due under this Agreement, the State Water Board may take such action in a court of competent jurisdiction as it deems necessary to compel the performance of all duties relating to the imposition or levying and collection of any of such Charges and the payment of the money collected therefrom to the State Water Board. Action Page 12 1~..% ~~ taken pursuant hereto shall not deprive the State Water Board of, or limit the application of, any~other remedy provided by law or by this Agreement. (c) Project Costs. The Recipient agrees to pay any and all costs connected with the Project including, without limitation, any and all Project Costs. If the Project Funds are not sufficient to pay the Project Costs in full, the Recipient shall nonetheless complete the Project and pay that portion of the Project Costs in excess of available Project Funds, and shall not be entitled to any reimbursement therefor from the State Water Board. (d) Additional Payments. In addition to any repayment required to be made by the Recipient, the Recipient shall also pay to the State Water Board through ABAG the reasonable extraordinary fees and expenses of the State Water Board, and of any assignee of the State Water Board's right, title and interest in and to this Agreement, in connection with this Agreement, including all expenses and fees of accountants, trustees, attorneys, litigation costs, insurance premiums and all other extraordinary costs reasonably incurred by the State Water Board or assignee of the State Water Board. Additional Payments may be billed to the Recipient by the State Water Board through ABAG from time to time, together with a statement executed by a duly authorized representative of the State Water Board, stating that the amounts billed pursuant to this section have been incurred by the State Water Board or its assignee for one or more of the above items and a copy of the invoice or statement for the amount so incurred or paid. Amounts so billed shall be paid by the Recipient within thirty (30) days after receipt of the bill by the Recipient. (e) The Recipient agrees that it shall not be entitled to interest earned on undisbursed project funds. 3.2 No Obligation of the State. Any obligation of the State Water Board herein contained shall not be an obligation, debt or liability of the State and any such obligation shall be payable solely out of the moneys in the CWSRF made available pursuant to this Agreement. 3.3 Disbursement of Project Funds; Availability of Funds. (a) Except as may be otherwise provided in this Agreement, disbursement of Project Funds will be made as follows: (1) Upon execution and delivery of this Agreement, the Recipient may request immediate disbursement of any eligible incurred planning and design allowance as specified in Exhibit B from the Project Funds through submission to the State Water Board through ABAG of the Disbursement Request Form 260, or any amendment thereto, duly completed and executed. (2) The Recipient may request disbursement of eligible construction and equipment costs consistent with the budget amounts referenced in Exhibit B. (3) Additional Project Funds will be promptly disbursed to the Recipient upon receipt by the State Water Board of Disbursement Request Form 260, or any amendment thereto, duly completed and executed by the Recipient for incurred costs consistent with this Agreement, along with receipt of status reports due under Section 2.9 above. (4) The Recipient agrees that it will not request disbursement for any Project Cost until such cost has been incurred and is currently due and payable by the Recipient, although the actual payment of such cost by the Recipient is not required as a condition of disbursement request. (5) Recipient shall spend Project Funds within thirty (30) days of receipt. Any interest earned on .Project Funds shall be reported to the State Water Board through ABAG and may be required to be returned to the State Water Board through ABAG or deducted from future disbursements. (6) Recipient shall request its final disbursement no later than six (6) months after Completion of Construction unless prior approval is granted by the Division. If the Recipient fails to do so, then the undisbursed balance of this Agreement will be deobligated. Notwithstanding any other Page 13 ~~ ~. provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, policies, or regulations. (7) Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, policies, or regulations.. (b) The State Water Board's and ABAG's obligation to disburse Project Funds is contingent upon the availability of sufficient funds to permit the disbursements provided for herein. If sufficient funds are not available for any reason, including but not limited to failure of the federal or State government to appropriate funds necessary for disbursement of Project Funds, neither the State Water Board nor ABAG shall be obligated to make any disbursements to the Recipient under this Agreement. This provision shall be construed as a condition precedent to the obligation of the State Water Board and ABAG to make any disbursements under this Agreement. Nothing in this Agreement shall be construed to provide the Recipient with a right of priority for disbursement over any other agency. If any disbursements due the Recipient under this contract are deferred because sufficient funds are unavailable, such disbursement will be made to the Recipient when sufficient funds do become available. 3.4 Withholding of Disbursements. (a) Notwithstanding any other provision of this Agreement, the Recipient agrees that the State Water Board through ABAG may retain an amount equal to ten percent (10%) of the financial assistance specified in this Agreement until completion of the Project to the reasonable satisfaction of the State Water Board. Any retained amounts due to the Recipient will be promptly disbursed to the Recipient, without interest, upon Project Completion. (b) The State Water Board through ABAG may withhold all or any portion of the funds provided for by this Agreement in the event that: (1) The Recipient has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or (2) The Recipient fails to maintain reasonable progress toward completion of the Project. (c) For the purposes of this section, the terms "material violation" or "threat of material violation" include, but are not limited to: (1) Placement on the ballot of an initiative to reduce revenues necessary for operations, maintenance, and repairs to the Project during its useful life; (2) Passage of such an initiative; (3) Successful challenges by ratepayer(s) to the process used by Recipient to set, dedicate, or otherwise secure revenues necessary for operations, maintenance, and repairs to the Project during its useful life; or (4) Any other action or lack of action that may be construed as a material violation or threat thereof. 3.5 Rates, Fees and Charges. The Recipient agrees to comply with the rates, fees and charges requirements in the CWSRF Project Finance Agreement with ABAG for the`Bay Area-wide Trash Capture Demonstration Project. 3.6 Accounting Standards and Federal Single Audit Act. The Recipient agrees to comply with the accounting standards and the Federal Single Audit Act requirements in the CWSRF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project. ARTICLE IV: MISCELLANEOUS PROVISIONS 4.1 Timeliness. TIME IS OF THE ESSENCE IN THIS AGREEMENT. Page 14 G G' . ~- 4.2 Amendment. No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in this Agreement is binding on any of the parties. 4.3 Assignability. This Agreement is not assignable by the Recipient, either in whole or in part, without the consent of the State in the form of a formal written amendment. 4.4 Bonding. Where contractors are used, the Recipient shall not authorize construction to begin until each contractor has furnished a performance bond in favor of the Recipient in the following amounts: faithful performance (100%) of contract value; labor and materials (100%) of contract value. This requirement shall not apply to any contract for less than $20,000.00. 4.5 Compliance with Law, Regulations, etc. (a) The Recipient agrees that it will, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, the Recipient agrees that, to the extent applicable, the Recipient will: (1) Comply with the provisions of the Categorical Exemption from California Environmental Quality Act requirements (15302(c)) associated with the Bay Area-wide Trash Capture Demonstration Project, for the term of this Agreement; (2) Comply with the State Water Board's "Policy for Implementing the State Revolving Fund for Construction of Wastewater Treatment Facilities," as amended from time to time; and (3) Comply with and require its contractors and subcontractors to comply with the list of federal laws certified to by the Recipient. 4.6 Conflict of Interest. The Recipient certifies that it is in compliance with applicable state and/or federal conflict of interest laws. 4.7 Damages for Breach Affecting ARRA Compliance. (a) In the event that any breach of any of the provisions of this Agreement by the Recipient shall result in the loss of tax exempt status for any state bonds, or if such breach shall result in an obligation on the part of the State Water Board or ABAG to reimburse the federal government by reason of any arbitrage profits, the Recipient shall immediately reimburse the State Water Board or ABAG, as the case may be, in an amount equal to any damages paid by or loss incurred by the state due to such breach. (b) In the event that any breach of any of the provisions of this Agreement by the Recipient shall result in the failure of Project Funds to be used pursuant to the provisions of ARRA, or if such breach shall result in an obligation on the part of the State Water Board or ABAG to reimburse the federal government, the Recipient shall immediately reimburse the State Water Board or ABAG, as the case may be, in an amount equal to any damages paid by or loss incurred due to such breach. 4.8 Disputes. (a) Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Division Deputy Director, or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Recipient and to the State Water Board's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Recipient, the Recipient mails or otherwise furnishes a written appeal of the decision to the State Water Board's Executive Director. The decision of the State Water Board's Executive Director shall be final and conclusive unless determined by a court of competent Page 15 jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Recipient shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Recipient shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. (b) This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the State Water Board, or any official or representative thereof, on any question of law. (c) The Recipient shall continue with the responsibilities under this Agreement during any dispute. 4.9 Governing Law. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. 4.10 Income Restrictions. The Recipient agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Recipient under this Agreement shall be paid by the Recipient to the State, to the extent that they are properly allocable to costs for which the Recipient has been reimbursed by the State under this Agreement. 4.11 Independent Actor. The Recipient, and its agents and employees, if any, in the performance of this Agreement, shall act in an independent capacity and not as officers, employees or agents of the State Water Board or ABAG. 4.12 Non-Discrimination Clause. (a) During the performance of this Agreement, Recipient and its contractors and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, sexual orientation, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. (b) The Recipient, its contractors, and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. (c) The Recipient, its contractors, and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. (d) The Recipient, its contractors, and subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. (e) The Recipient shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. 4.13 No Third Party Rights. The parties to this Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation or undertaking established herein. 4.14 Operation and Maintenance; Insurance. The Recipient agrees to properly staff, operate and maintain all portions of the Project for 2 years of the design life of the devices in accordance with all applicable state and federal laws, rules and regulations. The Page 16 Recipient certifies that it has in place and will maintain a reserve fund for this purpose. The Recipient will procure and maintain or cause to be maintained insurance on the System with responsible insurers, or as part of a reasonable system of self-insurance, in such amounts and against such risks (including damage to or destruction of the System) as are usually covered in connection with systems similar to the System. Such insurance may be maintained by the maintenance of aself-insurance plan so long as any such plan provides for (i) the establishment by the Recipient of a separate segregated self- insurance fund funded in an amount determined (initially and on at least an annual basis) by an independent insurance consultant experienced in the field of risk management employing accepted actuarial techniques and (ii) the establishment and maintenance of a claims processing and risk management program. In the event of any damage to or destruction of the System caused by the perils covered by such insurance, the net proceeds thereof shall be applied to the reconstruction, repair or replacement of the damaged or destroyed portion of the System. The Recipient shall begin such reconstruction, repair or replacement as expeditiously as possible, and shall pay out of such net proceeds all costs and expenses in connection with such reconstruction, repair or replacement so that the same shall be completed and the System shall be free and clear of all claims and liens. 4.15 Permits, Subcontracting, Remedies and Debarment. The Recipient shall procure all permits and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Signed copies of any such permits or licenses shall be submitted to the Division before construction begins. Any subcontractors, outside associates, or consultants required by the Recipient in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during negotiations for this Agreement, or as are specifically authorized by the State Water Board's Project Representative through ABAG during the performance of this Agreement. Any substitutions in, or additions to, such subcontractors, associates, or consultants, shall be subject to the prior written approval of the Division. The Recipient shall not subcontract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension." The Recipient shall not subcontract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code, § 4477) The Recipient certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or agency; (b) Have not within a three (3) year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and (d) Have not within a three (3) year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default. Page 17 ~ w,~~` ~, 4.16 Prevailing Wages. The Recipient agrees to be bound by the provisions of the Davis-Bacon Act, as identified in Exhibit H of the CWRSF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project. 4.17 Recipient's Responsibility for Work. The Recipient shall be responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement, including, but not limited to, contractors, subcontractors, suppliers, and providers of services. The Recipient shall be responsible for any and all disputes arising out of its contracts for work on the Project. Neither the State Water Board nor ABAG will mediate disputes between the Recipient and any other entity concerning responsibility for performance of work. 4.18 Related Litigation. Under no circumstances may a Recipient use funds from any disbursement under this Agreement to pay costs associated with any litigation the Recipient pursues against ABAG, the State Water Board or any Regional Water Board. Regardless of the outcome of any such litigation, and notwithstanding any conflicting language in this Agreement, the Recipient agrees to complete the Project funded by this Agreement or to repay all of the disbursed funds plus interest. 4.19 Rights in Data. The Recipient agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement are subject to the rights of the State as set forth in this section. The State and ABAG shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. If any such work is copyrightable, the Recipient may copyright the same, except that, as to any work which is copyrighted by the Recipient, the State and ABAG reserve a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, and use such work, or any part thereof, and to authorize others to do so, and to receive electronic copies from the Recipient upon request. (40 CFR §§ 31.34, 31.36) 4.20 State and ABAG Reviews and Indemnification. The parties agree that review or approval of Project plans and specifications by ABAG or the State Water Board is for administrative purposes only and does not relieve the Recipient of its responsibility to properly plan, design, construct, operate, and maintain the Project. To the extent permitted by law, the Recipient agrees to indemnify, defend and hold harmless ABAG and the State Water Board against any loss or liability arising out bf any claim or action brought against ABAG or the State Water Board from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the System or the Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about, or the planning, design, acquisition, installation or construction, of the System or the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and California Water Code section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Recipient for use in any disclosure document utilized in connection with any of Page 18 the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Recipient agrees to pay and discharge any judgment or award entered or made against ABAG or the State Water Board with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement. 4.21 State Water Board and ABAG Action; Costs and Attorney Fees. The Recipient agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to ABAG or the State Water Board as a result of breach of this Agreement by the Recipient, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by ABAG or the State Water Board shall not preclude ABAG or the State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own filing costs and attorney fees. 4.22 Termination; Immediate Repayment; Interest. (a) This Agreement will automatically terminate without written notice if the Recipient fails to meet the timelines in Exhibit A and the ARRA provisions of Exhibit E. Under such circumstance, the Recipient shall immediately repay all Project Funds received under this Agreement, at the highest legal rate of interest. (b) Additionally, this Agreement may be terminated by written notice during construction of the Project, or thereafter at any time prior to complete repayment by the Recipient, at the option of the State Water Board through ABAG, upon violation by the Recipient of any material provision of this Agreement after such violation has been called to the attention of the Recipient and after failure of the Recipient to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the Division. In the event of such termination, the Recipient agrees, upon demand, to immediately repay to the State Water Board through ABAG an amount equal to Installment Payments due hereunder, including accrued interest, and all penalty assessments due. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Recipient to the date of full repayment by the Recipient. 4.23 Unenforceable Provision. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. 4.24 Useful Life of the Project. The useful life of the Project, commencing at Project Completion, is at least equal to the term of this Agreement, as set forth in Exhibit A hereto. 4.25 Venue. The State Water Board and the Recipient hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. 4.26 Waiver and Rights of the State Water Board. Any waiver of rights by ABAG or the State Water Board with respect to a default or other matter arising under the Agreement at any time shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of ABAG or the State Water Board provided for in this Agreement are in addition to any other rights and remedies provided by law. Page 19 ~~ ~~~ ~. EXHIBIT C-1 SPECIAL ENVIRONMENTAL, FINANCIAL AND OTHER PROGRAM CONDITIONS The Recipient shall comply with the Special Environmental, Financial, and Other Program Conditions listed in Exhibit D of the CWRSF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project. Page 20 f ~- . ,:~ EXHIBIT C-3 FEDERAL ARRA SPECIAL CONDITIONS The Recipient shall comply with the Federal ARRA Conditions in Exhibit E of the CWRSF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project, with exception to section 1(f). Section 1(f) shall read: (f) Reports. In addition to the reports specified in this Agreement, the Recipient may be asked for quarterly reports related to the goals of ARRA, including jobs created or saved. The Recipient agrees to provide such reports in an expeditious fashion. Page 21 .~- ,~'"' ~~ ~ ~~; ,:- EXHIBIT C-4 ARRA SECTION 1511 CERTIFICATION The Recipient shall comply with the Section 1511 Certification in Exhibit G of the CWRSF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project. Page 22 C~ EXHIBIT C-5 '"~ DAMS-BACON ACT COMPLIANCE The Recipient shall comply with the Davis-Bacon Act requirements listed in Exhibit H of the CWRSF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture Demonstration Project. Page 23