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HomeMy WebLinkAboutState Water Resources Control Board; 1993-09-01;7” !k jT - DfJi$j‘ L Date SeDtember 4 To File c Reply Wanted From Isabelle Paulsen Clko Reoiy Necessary Karen Kundtz asked that a 45 file for CMWD be made to file this agreement, Water Reclamation Loan Program Clean Water Bond Law of 1988, in the vault. v a w- - .$ WATER RECLAMATION LOAN PROGRAM CLEAN WATER BOND LAW OF 1988 LOAN CONTRACT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CARLSBAD MUNICIPAL WATER DISTRICT This loan contract is made this first day of September, 1993, between the State of California, acting by and through the State Water Resources Control Board, hereinafter referred to as "State Board", and Carl sbad Municipal Water District, a municipal water district of the State of California, hereinafter referred to as "Agency"; WHEREAS : 1. The Clean Water and Water Reclamation Bond Law of 1988 (Chapter 17, Division 7, Water Code) authorizes the State Board to enter into contracts with local public agencies to provide loans for design and construction of eligible water reclamation projects; and The Agency has made application for a loan for the Project hereinafter described and said Project has been determined by the State Board to be eligible for a water reclamation loan pursuant to the Clean Water and Water Reclamation Bond Law of 1988; and The State Board has adopted Resolution No. 91-18 authorizing loan funding of the Project. 2. 3. NOW, THEREFORE, the parties agree as follows: SECTION 1. PROJECT DESCRIPTION. The Project shall be known as Encina Basin Project - Phase I. The Project generally consists of construction of main pipelines and lateral: of a pump station, conversion of a storage tank to reclaimed water reservoir, and of modifications at Meadowlark Treatment Plant for the delivery of reclaimed water to users as more particularly described in the Loan Application of the Agency and the Concept Approval Letter and Amended Concept Approval Letter, Exhibit B of this contract. IP e -% SECTION 2. INCORPORATION OF DOCUMENTS; ORDER OF PRECEDENCE; AND GENERAL This contract incorporates herein, or by reference, the documents listed below. otherwise provided herein, the inconsistency shall be resolved by giving precedence i n the fol 1 owi ng order: A. B. Exhibit A, Loan Contract Special Conditions. C. Exhibit B, Concept Approval Letter dated February 5, 1991, and any D. Exhibit C, Loan Contract Standard Conditions. E. Exhibit D, Loan Repayment Schedule and any amendments thereto. F. Exhibit E, Nondiscrimination Clause. The Agency accepts and agrees to comply with all provisions and conditions of this contract, including all incorporated documents, and to fulfill all assurances, declarations, representations and commitments made by the Agency in its application, accompanying documents, amendments, and communications filed in support of its request for a water reclamation loan. SECTION 3. REASONABLE COST OF ELIGIBLE PROJECT. The reasonable cost of the eligible Project, for loan purposes, is estimated to be $2,429,240. SECTION 4. LOAN AMOUNT. Subject to all provisions and conditions of this contract, and subject to the availability of state and federal funds as provided in Exhibit C, Article 8.E: attached hereto, the State Water Board shall loan the Agency an amount which equals the eligible costs of the Project or $2,429,240, whichever is less. SECTION 5. LOAN DISBURSEMENT. Loan funds shall be disbursed in accordance with the disbursement provisions of Exhibit C, attached hereto. SECTION 6. INTEREST RATE AND ACCRUAL OF INTEREST. The loan interest rate shall be 2.9 percent per annum. funds disbursed to the Agency shall begin to accrue as of the date of each disbursement. AGENCY COMMITMENTS. In the event of any inconsistency in the contract documents, except as The provisions of this loan contract document. amendments thereto. Interest on any loan e * ** SECTION 7. LOAN REPAYMENT. Loan funds shall be repaid in accordance with the provisions of Exhibit C, attached hereto, and as indicated in appropriate Loan Repayment Schedules in Exhibit D, also attached hereto. The loan shall be repaid in full no later than 20 years from the date specified in the first paragraph of this contract. SECTION 8. AGENCY’S PAYMENT OF PROJECT COSTS. The Agency agrees to pay any and all costs connected with the Project, including, without limitation, any and all Project costs exceeding the State Water Board approved loan amount. SECTION 9. FEDERAL OR STATE ASSISTANCE. The Agency agrees, if appropriate, to apply for and make reasonable efforts to secure federal assistance, other than that available under the Clean Water Act, on account of Project costs. If federal or other state assistance on account of Project costs is made available to the Agency, the Agency may retain all federal or other state funds received up to an amount which equals the Agency’s local share of Project costs. Any excess funds received, up to the remaining amount due on account of the State Water Board loan, shall be remitted to the State Water Board to apply against the loan balance to the extent not prohibited by the requirements of the other funding sources. Any residue shall be the property of the Agency. SECTION 10. COMPLETION OF PROJECT The Agency agrees to proceed expeditiously with and complete the Project in substantial accordance with plans and specifications approved by the State Water Board. SECTION 11. OPERATION AND MAINTENANCE. The Agency shall commence operation of the Project upon completion of construction and properly staff, operate, and maintain all portions of the Project during its useful life in accordance with all applicable state and federal 1 aws, rul es and regul at i ons. SECTION 12. STATE REVIEWS AND INDEMNIFICATION. The parties agree that review or approval of project plans and specifications by the State Water Board is for administrative purposes only and does not relieve the Agency of its responsibility to properly plan, design, construct, operate, and maintain the Project. As between the State Water Board and the Agency, the Agency agrees that it has sole responsibility for proper planning design, construction, operation, and maintenance of the Project, and the Agency agrees to indemnify the State Water Board, the State of California and their officers, agents, and employees against and to hold the same free and harmless from any and all claims, demands, damages, losses, costs, expenses, or liability due or incident to planning, design, construction, operation, maintenance, existence or failure of the Project. 3 - * e .* SECTION 13. USEFUL LIFE. For purposes of this contract, the parties agree that the useful life of the Project begins upon completion of construction and continues until 20 years thereafter or until the final loan repayment date specified in Section 7, whichever i s 1 onger. SECTION 14. TERM. This contract shall take effect upon State Department of General Services approval of the contract, and shall remain in effect until August 31, 2013, unless sooner terminated pursuant to appl icabl e provisions of this contract. SECTION 15. PROJECT OFFICIALS. A. The State Water Board Project Manager shall be Mr. Lynn Johnson of the Office of Water Recycling. B. The State Water Board Project Manager shall be the State Water Board’s representative for administration of the contract and shall have authoritj to make determinations and findings with respect to any controversy arising under or in connection with the interpretation of, performance under, or payment for work performed under the contract. Disputes shall be resolved in accordance with Article 13 of Exhibit C. C. The Agency Project Director shall be the General Manager. The Agency Project Director shall be the Agency’s representative for the administration of the contract and shall have full authority to act on behalf of the Agency, including authority to execute all disbursement requests. All communications given to the Project Director shall be as binding as if given to the Agency. Either party may change its Project Manager or Director upon written notice to the other party. D. 4 * * IN WITNESS THEREOF, the parties have executed this contract on the dates set forth below: STATE WATER RESOURCES CONTROL BOARD By: ion of Administrative Services Date: CARLSBAD MUN By: Date: DEPARTMENT OF GENERAL SERVICES 5 1. e -. EXHIBIT A LOAN CONTRACT SPECIAL CONDITIONS ARTICLE 1. CONCEPT APPROVAL LETTER CONDITIONS. Special conditions for this loan contract are contained in the Concept Approval letter, Exhibit B of this loan contract, and shall be construed as special conditions as though contained herein. ARTICLE 2. NONDISCRIMINATION CLAUSE. The term "contractor" in Exhibit E refers to the Agency. A- 1 m OFFICE OF WATER RECYCLINC State Water Resources Control Boarc 2014 T Street, P.O. Box 944212 Sacramento, CA 94244-2120 c v- ).- (916) 739-4270 (916) 739-2300 FAX EXHIBIT B FEB 5 1991 / Mr. Robert Greaney 1, General Manager Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, CA 92008 Dear Mr. Greaney: WATER RECLAMATION LOAN PROGRAM, CARLSBAD MUNICIPAL WATER DISTRICT, ENCINA BASIN PROJECT, PHASE I, CONCEPT APPROVAL LETTER Carlsbad Municipal Water District has made application dated May 10, 1990, for z loan from the Water Reclamation Loan Program for the Encina Basin Project, Phasc I. The Office of Water Recycling (OWR) has reviewed the Encina Basin Water Reclamation Project Phase I Program Facilities Plan dated July 1989; the Aviara Reclaimed Water Facilities Plan dated May 1989; the loan application package dal May 10, 1990; and the subsequent supplemental information for the project. Thi: office hereby approves the concept of constructing the project as generally described in the Facilities Plan report and in the loan application and as more particularly described in this letter. This letter does not constitute a loan offer. Resources Control Board of approval to advertise and notification of commencemer of construction. This letter will be made part of the loan contract. Eligible Project Description The following items will be eligible for loan participation: 1. A loan offer will be issued upon authorization by the State Water Modifications of effluent pump station including electrical and instrumentation and construction of a diversion structure at Meadowlark Treatment Plant. Construction of a 7,000-foot 6-inch diameter pipeline to return screenings from Mahr Reservoir to Meadowlark, and construction of screening facilities Mahr Reservoir . 3. Aviara Development: 2. a. Construction of a diversion vault and a supply pump station for pumping diverted reclaimed water from the fail-safe pipeline into a new storage reservoir via a 800-foot, 12-inch diameter pipeline. Construction of a 1.39 MG buried reservoir and a booster pump station tc deliver stored water to the Aviara Development. b. STATE OF CALIFORNIA GEORGEDEUKME - - * m -. Mr. Robert Greaney -2- FEB 5 199 4. Frazee Flowers and CALTRANS: a. Construction of a diversion structure and a 4,000-foot, 8-inch diameter pipeline for delivering diverted reclaimed water from the fail-safe pipeline into a storage reservoir. Construction of a 0.4 MG reservoir and two booster pump stations to del iver stored water to Frazee Flowers and CALTRANS users. Construction of a l,OOO-foot, 10-inch diameter pipeline to Frazee site. b. I c. 5. Ukegawa Farms: a. Construction of a diversion vault and a pump station for delivering diverted reclaimed water into a storage reservoir via a 200-f00t, 6-incl diameter pipeline. Construction of a 0.07 MG storage reservoir and a booster pump station . delivering stored water to Ukegawa Farms. b. The eligible system design capacity is at least 1,412 acre-feet per year of reclaimed water. This capacity is based on the following users: ANNUAL RECLAIMED WATER USE - USER (AC-Ft ) Aviara Development 677 Frazee Flowers 510 Ukegawa Farms 147 CALTRANS 7% TOTAL 1,412 The total estimated construction and engineering, legal and administrative (ELA) costs of the project is $4,216,000. construction, including an allowance for ELA costs is $4,201,000. The loan amou will be the actual bid amount for construction of the eligible facilities plus a allowance of up to 15 percent for ELA, with the total amount not to exceed Conditions of Concept Approval This Concept Approval is contingent upon your compliance with the conditions in the loan contract and on your compliance with the following conditions: a. The estimated eligible project cost for $5 , 000,000. Prior to issuing approval to advertise, Carlsbad Municipal Mater District shall submit to the OWR for review and approval a detailed cost effectivenes analysis comparing the alternative of a pump station and a single storage reservoir for the purpose of serving Frazee, Ukegawa and CALTRANS to the alternative of constructing one pump station and two reservoirs as proposed the loan application. * m _- \I 0. Mr. Robert Greaney -3- FEB 5 1991 b. Substantially meeting the following schedule: Project Milestones Dates Ukegawa, Fr Av i ara and CALTR, Submit final plans and specifications, engineer's estimate, updated construction financing plan and revenue program April 1, 1991 July 1, 199 Advertise for bids May 1, 1991 August 1, 1 Award construction contract July 1, 1991 October 1, Submit notification of award July 15, 1991 October 15, (or no later than 14 days follc award of each construction con- Complete construction of all facilities April 1, 1992 July 1, 1991 Submit notice(s) of completion of May 1, 1992 August 1, l! construction and final payment request (or no later than 1 month follc completion of the last construi contract) (or 60 days after completion o- If the above actions are not taken, Concept Approval may be withdrawn. Carlsbai Municipal Water District is authorized to proceed with preparation of plans and specifications for the eligible project. advertise for construction prior to receiving approval from our office. The Concept Approval includes only that project described above and does not include any associated project which may have been referred to in the loan application or supplemental submittals. This approval does not guarantee loan funding on any subsequent project which may be necessary to assure that the approved project is functional. Should you have any questions on the above, please contact Nick Kontos at (916) Sincerely, \ Submit Final Project Summary Report, September 1, 1992 Financial Report and Final Revenue Program construct ion) The District is cautioned not to 739-4270. &fL ynn Jo nson, Chief Office of Water Recycling (I) e '1.. % -. Mr. Robert Greaney -4- ffS 5 199 cc: Mr. Frank Dudek, President Dudek & Associates, Inc. 605 Third Street Encinitas, CA 92024 Mr. Peter MacLaggan, P.E. Water Reclamation Director San Diego County Water Authority 3211 Fifth Avenue San Diego, CA 92103 California Regional Water Quality Control Board (9) San Diego Region 9771 Clairemont Mesa Blvd. Suite B San Diego, CA 92124 Jeanne-Marie Bruno Metropolitan Water District of Southern California Resources Division P. 0. Box 54153 Los Angeles, CA 90054 OWR/carl sbadCA/ josel550/KONTOS 2/4/91 m OFFICE OF WATER RECYCLIN( State Water Resources Control Boarc 2014 T Street, P.O. BOX 944212 Sacramento, CA 94244-21 20 (916) 327-0652 (916) 323-9102FAX .. -< - ,- September 29, 1992 EXHIBIT B Mr. Robert Greaney General Manager Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, CA 92008 Dear Mr. Greaney: WATER RECLAMATION LOAN PROGRAM, CARLSBAD MUNICIPAL WATER DISTRICT, ENCINA BASIN WATER RECLAMATION PROJECT, PHASE I, AMENDED CONCEPT APPROVAL LETTER This letter amends the concept approval letter dated February 5, 1991, as follows: El i gi bl e Project Description The following items will be eligible for loan participation: I. Plant and Storage Sites I. Modifications of effluent pump station including electrical and instrumentation and construction of a diversion structure at Meadowlark Treatment Plant. Construction of a 7,000 feet, 6-inch diameter pipeline to return screenings from Mahr Reservoir to Meadowlark and construction of screening facilities at Mahr Reservoir. 2. 11. Aviara Development 1. Construction of a diversion vault and a supply pump station, El Camino Reclaimed Water Pump Station, for pumping diverted reclaimed water from the fail-safe pipeline into the existing D2 Tank. 2. Construction of 5,300 feet, 12-inch diameter, reclaimed water force main from El Camino Reclaimed Water Pump Station to D2 Tank. 3. Conversion of existing potable D2 Tank to reclaimed water use. 4. Construction of a total of 3,054 feet, 12-inch diameter and 16-inch diameter, potable water pipeline located in El Camino Real and south of Camino Vida Roble. . 8 m '. r' . * Mr. Robert Greaney September 29, 19 Page Two 111. Frazee and Ukesawa Flowers and Caltrans 1. Construction of a total of 4,019 feet, 8-inch diameter and 12-inch diameter, reclaimed water pipe1 ine for delivering reclaimed water from the existing pipeline at the intersection of Palomar Airport Road and College Boulevard to the Frazee and Ukegawa meters. 2. Construction of 2,186 feet, 8-inch diameter, reclaimed water pipeline in Palomar Airport Road from Hidden Valley Road to Paseo Del Norte to Caltrans service connection. pipeline between D2 tank and Palomar Airport Road to reclaimed watt use. 4. Construction of 1,200 feet, 4-inch diameter, potable pipeline nortt of the existing D2 Tank to enable the District to use existing lint from D2 Tank to Palomar Airport Road. 5. Construction of 1,500 feet, 10-inch diameter, potable pipeline frorr Palomar Airport Road to Sudan Interior Mission service connection. The eligible system design capacity is at least 1,412 acre-feet per year (AFY of reclaimed water. 3. Conversion of 5,400 feet, l2-inch diameter, existing potable This capacity is based on the following users: Annual Reclaimed Water Use (acre-feet) User First Year Fifth Year Avi ara Development 647 677 Frazee Flowers 510 510 Ukegawa Farms 147 147 C A t T RAN S 78 78 Total 1,382 1,412 Conditions of ConceDt ADDroval This Concept Approval is contingent upon your compliance with the conditions in the loan contract and on your compliance with the following conditions: a. Conversion cost of Tank Dl scheduled to take place some time in the futurl b. First loan disbursement will be made after award of the last construction contract. Disbursement will include payment of all incurred eligible costs completed in previous phases of the project. Substantially meeting the following schedule: is not eaigible to receive loan funds under this project. d. 8 1) .- L* -*.e - 4 September 29, 199 Mr. Robert Greaney Page Three Pro.iect Milestones - Dates Ukegawa, Frazee & Aviara Ca 7 trans Submit Final plans and specifi- cations, engineer’s estimate, updated construction financing p7an and revenue program August 1, 1992 October 1, 1992 Advertise for bids August 15, 1992 November 1, 1992 Award Construction Contract October 15, 1992 January I, 1993 Submit Notification of Award October 31, 1992 January 15, 1993 (or no later than 14 days following award of each construction contract) Complete construction of a17 faci7ities February I, 1993 September 1,1993 Submit not ice(s) of comp7etion of construction and final payment request March I, 1993 October I, 1993 Submit Final Project Summary Report, financial Report, and November 1, 1993 Fina7 Revenue Program (or 60 days after comp7etion of construct ion) If the above actions are not taken, Concept Approval may be withdrawn. Carlsl Municipal Water District is authorized to proceed with preparation of plans ai specifications for the project. All other conditions contained in the February 5, 1992, Concept Approval fettt remain the same. If you have any questions, please contact Nick Kontos at (916) 327-4258. Si ncerel y , & Johnson, Chief Office of Water Recycling cc: Peter MacLaggan, P. E. Regional Water Qual i ty Control Board 5 /- _. d<+*L/--.---- /” /- --_ -- San Diego County Water Authority 3211 Fifth Avenue 9771 Clairemont Mesa Blvd., Suite B San Diego, CA 92103 San Diego, CA 92124 San Diego Region NKONTOS/josel1 a/9/29/92 IC OFF1 ;c) OF WATER RECYCLIN State Water Resources Control Boa 2014 T Street, P.O. Box 944212 Sacramento, CA 94244-21 20 (916) 227-4580 (916) 227-4595 FAX EXHIBIT B JUN 3 0 19% Mr. Robert J. Greaney General Manager Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, CA 92008 Dear Mr. Greaney: WATER RECLAMATION LOAN PROGRAM, CARLSBAD MUNICIPAL WATER DISTRICT, ENCINA BASIF PROJECT - PHASE I, AMENDED CONCEPT APPROVAL LETTER This letter amends the project schedule contained in the Amended Concept Approval letter dated September 29, 1992, and adds a list of ineligible items as follows: A. Project Mi les tones Project pli lestones Date Submit F ina 1 P lans and Spec if ica t ions , Engineer ' s Es t ima te, Upda ted Cons truc t ion F inanc ing P lan and Re venue Program Advertise for Bids April 15, 1993 Award Construct ion Contract July 15, 1993 Submit Mot if icat ion of Award July 31, 1993 April 1, 1993 (or 14 days following award of construct ion contract) Complete Construction of AJI Facilities January 31 , 1994 Submit Not ice(s) of Comp let ion of Construct ion and Fina 7 Payment Request Submit F ina 1 Project Summary Report , F inanc ia 7 March 31, 1994 Report , and F ina 7 Re venue Program February 15, 1994 (or 60 days after corn- p let ion of construct io/ -- -- STATE OF CALJFORNIA 1 0 0 1; Mr. Robert J. Greaney -2- B. Ine 1 ig ib le I tems The fo 1 lowing items are ine 7 igib le for loan funding: 1. 2. 4UN 3 0 1993 Future conversion of potable water Tank Dl to reclaimed water Re-p ip ing at and around existing potab le water Tank 0.2 converted to rec la water 3. Construction of pipeline in the bridge over 1-5 freeway 4. Construction of 2,000 feet of reclaimed water pipeline in the median of Palomar Airport Road east of the intersection of Paseo Del Norte Should you have any questions in the above matter, please contact Nick Kontos at (916) 227-4579. Sincerely, 4z- -.--------, e---- Unn €. Johnson, :7/ Chief Office of Water Recycling cc: Peter MacLaggan, P.E. Regional Water Quality Control Board San Diego County Water Authority 3211 Fifth Avenue 9771 Clairemont Mesa Blvd., Suite B San Diego, CA 92103 San Diego, CA 92124 San Diego Region 9 0 0 L EXHIBIT C LOAN CONTRACT STANDARD CONDITIONS ARTICLE 1. DEFINITIONS. The following terms shall have the meaning hereinafter ascribed to them unless the context clearly requires another meaning: A. "Completion of construction" means the date, as determined by the State Water Board Project Manager after consultation with the Agency, that the work of building and erection of the Project is substantially complete and that the operation of the project is capable of being initiated. "Construction Financing Plan" means arrangements made by the Agency to finance its portion of the Project cost, including reserves for cash flow during the construction period. "Day" means calendar day unless otherwise expressly indicated. "Division" means the Division of Clean Water Programs of the State Water Board, or any other Division of the State Water Board authorized to administer the Water Reclamation Loan Program. B. C. D. E. "Eligible Project cost" means, except as otherwise provided, reasonable and necessary Project costs actually incurred by the Agency in construction of the Project which are otherwise eligible for loan funds pursuant to state laws, rules, regulations, guide1 ines and this contract. Such costs may include, but are not limited to: (1) Design and construction costs, (2) Project-re1 ated engineering, legal and administrative costs, and (3) Project-related right-of-way costs, including land purchase costs. "Force Accountll means use of the Agency's own employees or equipment for design, construction or construction-related activities on the Project. "Ineligible Project cost" means all costs which are not eligible for loan funds pursuant to state laws, rules, regulations, guidelines or this contract, even though incurred by the Agency, including those that are deemed by the State Water Board to be unreasonable or unnecessary. costs include, but are not limited to: (1) Facilities planning costs, (2) Costs of applying for a loan, and (3) Indirect costs of the Agency. "Loan funds" means any and all funds disbursed to the Agency under this contract. F. G. Such H. c- 1 7 8 0 5 - I. "Revenue Program" means arrangements made by a municipality which will, through user service charges and connection fees or other appropriate means approved by State Water Board, recover appropriate capital costs and costs of operation and maintenance and fund reasonable future expansion and improvements, as needed. The revenue program shall be developed in accordance with the procedures presented in "Interim Guidelines for Economic and Financial Analyses of Water Reclamation Projects" (February 1979), or any successor guidelines. "Subcontract" means a written agreement between the Agency and another party and any tier of agreement thereunder for the furnishing of services, supplies, or equipment necessary to complete the Project for which this loan was made, including contracts and subcontracts for personal and professional services, agreements with consultants and purchase orders. "Subcontractor" means a party to whom a subcontract is awarded. "User Contract'' means an agreement whereby the purveyor of reclaimed water agrees to deliver and a user agrees to accept reclaimed water from the purveyor subject to appropriate conditions which may include, but are not necessarily limited to, volumes, delivery schedules, payments and restrictions on use. J. K. L. ARTICLE 2. AGENCY ASSURANCES AND COMMITMENTS. A. Compliance With Laws, Requlations, Etc. The Agency shall at all times comply with, and require its subcontractors to comply with, all applicable federal, state, and local laws, rules and regul at i ons . Compliance With State Water Board Po1ic.y and Guidelines. The Agency shall comply with the State Water Board's "Water Reclamation Loan Program Policy and Procedures", dated April 1989, and "Water Reclamation Loan Program Guidelines", dated September 1989. B. C. Environmental Mitiqation. The Agency shall comply with, implement and fulfill all environmental mitigation measures committed to by the Agency as a part of its request for a loan or which may otherwise be required by this contract. D. Small and Minority- and Women-Owned Business Participation. To the extent provided by law, positive efforts shall be made by the Agency to utilize small business and minority-owned and women-owned business sources of supplies, services and work for the Project. Any subcontracts let by the Agency for Project work shall require similar positive efforts by the subcontractor. to allow such sources the maximum feasible opportunity to compete for all Project work. In addition to positive efforts, the Agency shall comply with, and require its subcontractors to comply with, applicable federal, state, and local minority- and women-owned business enterprise requirements. Positive efforts should be such a! c-2 0 0 +- E. Compliance With Plans and Specifications. The Agency agrees that plans and specifications upon which bids are solicited for construction work on the Project shall be substantially the same as the final plans and specifications submitted to and approved by the State Water Board. F. Notice of Award. Promptly upon award by the Agency of any construction subcontract for the project, the Agency shall notify the State Water Board Project Manager of the award. Such notice shall be accompanied by a tabulation of bids received, the most recent engineer’s estimate of project cost available, a copy of the lowest acceptable bid proposal, a description of any bid protest received together with a description of how the protest was resolved, a copy of any project changes or addenda issued since approval to advertise was given, a copy of the signed construction subcontract, and any other documentation or explanation required by the State Water Board Project Manager for evaluation of the Project or for determination of current estimated eligible costs for the Project. If the Agency awarded to anyone other than the apparent low bidder, a full explanation shall be provided . G. Construction Activities. (1) Archeoloqical or Historical Resources. The Agency shall, within two working days, notify the State Water Board Project Manager of discovery of any potential archeological or historical resource. Should a potential archeological or historical resource be discoverec during construction of the Project, the Agency shall immediately cease all work in the area of the find until a qualified archeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the State Water Board Project Manager has determined what actions should be taken to protect and preserve the resource. The Agency agrees to implement appropriate actions as directed by the State Water Board Project Manager. The Agency shall require its subcontractors to cease immediately all work in the area of a discovery of any potential archeological or historical resource until appropriate actions have been determined ir accordance with this paragraph. supervision and inspection of Project construction activities are maintained. Water Board Project Manager in writing of any circumstance that is expected to or does delay completion of work on the Project for a period of 90 days or more beyond any estimated date of completion previously provided to the State Water Board. immediately notify the State Water Board, in writing, of completion of all prime subcontract work or force account work. c-3 (2) Supervision and Inspection. The Agency shall assure that adequate (3) Delav of Completion. The Agency shall promptly notify the State (4) Notification of Completion of Construction. The Agency shall - e e 6 H. Project Uses. (1) Project Deliveries. The Agency agrees to obtain sufficient reclaimed water users to make deliveries of reclaimed water during the seventh year following award of the prime construction subcontract at least in an amount of the total eligible Project reclamation capacity multiplied by the ratio of State Water Board loan funding to total Project cost. (2) Continuous Use of Pro,ject; Lease or Disposal of Project. The Agency shall 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 State Water Board. Such approval may be conditioned as determined to be appropriate by the State Water Board, including a condition requiring repayment of all or any portion of all remaining loan funds covered by this contract together with accrued interest and any penalty assessments which may be due. I. Druq-Free Workplace Requirements. The Agency agrees to comply with and be bound by all of the provisions of Chapter 5.5 (commencing with Section 8350) of Division I of Title 2 of the California Government Code and to supply any certifications which may be required to assure or reflect such compl iance, including Drug-Free Workplace Certification STD. 21. The Agency understands and agrees that this contract is subject to suspension, suspension of payments, or termination, or all of these actions, and that the Agency is subject to debarment if the State Water Board determines that a false certification has been made or if the requirements of this paragraph have been violated. J. Prevailinq Waqes. The Agency agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. The Agency shall monitor all subcontracts subject to reimbursement from this loan contract to assure that the prevailing wage provisions of State Labor Code Section 1771 are being met. ARTICLE 3. PROJECT ACCESS. The Agency shall ensure that the State Water Board, or any authorized representative thereof, will have suitable access to the Project site at all reasonable times during Project construction and for the useful life of the Project and shall include provisions ensuring such access in all subcontracts. ARTICLE 4. RECORDS AND ACCOUNTING REQUIREMENTS. A. Official File. The Agency shall establish an official file for the Project. The file shall contain adequate documentation of all significant actions relative to the project. documents and other evidence sufficient to depict properly the amount, c-4 B. Records and Accountinq. The Agency shall maintain books, records, a 0 _- receipt and disposition of all Project funds, including State Water Board loan funds and any matching funds of the Agency, and the total cost of the Project during the period of design and construction. The Agency shall establish separate accounts to record all funds received and expended on the Project, including all loan funds received under this contract. Such separate accounts shall also be used to record all income received that is attributable to the Project during the period of design and construction, specifically including any income attributable to loan funds received under this contract. Furthermore, the Agency shall establish such accounts and maintain such records as may be necessary for the State to fulfill any federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations. Accounting procedures shall be in accordance with generally accepted accounting principles and practices, consistently applied, and shall provide sufficient and effective accountability and control of all Project funds. shall certify that its accounting system is: (1) (2) (3) C. Pre-Payment Certification. Prior to request for disbursement, the Agency In accordance with generally accepted accounting principles and practices, consistently applied; Capable of identifying all eligible and ineligible Project costs; anc Capable of identifying all interest earned by the Agency upon state loan funds. D. Force Account. If Force Account is used by the Agency for any phase of the Project, other than for engineering, legal, and administrative costs provided for by allowance, the Agency shall notify the State Water Board prior to its use and shall establish accounts and maintain records to reasonably document all employee hours charged to the Project and the associated tasks performed by each employee. E. Retention of Records. The Agency shall retain its Project records for a minimum of three years after completion of construction and for such longer period as may be required for the State to fulfill federal reporting requirements under federal tax statutes and regulations. All Agency records relative to the Project shall be subject at all reasonable times to inspection, copying and audit by the State Water Board or any authorized representatives thereof. subcontractors to maintain books, records, and other material relative to the Project in accordance with generally accepted accounting principles, and to require such subcontractors to retain such books, records, and other material for a minimum of three years after completion of construction. The Agency shall also require that such books, records, an( other material shall be subject at all reasonable times to inspection, copying, and audit by the State Water Board or any authorized representatives thereof. F. Subcontractor Requirements. The Agency shall require Project c-5 b 0 0 ,- G. Accountins Principles. The accounting requirements herein are not intended to limit the requirement to maintain project accounts in accordance with generally accepted accounting principles. ARTICLE 5. AUDIT REQUIREMENTS. A. The State Water Board, at its option, may call for an audit of financial information relative to the Project, where the State Water Board determines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of federal requirements. Any audit called for by the State Water Board shall be performed in accordance with generally accepted accounting principles and practices, consistently applied. audit report shall be prepared in the form required by the State Water Board. The audit shall be performed by a Certified Public Accountant independent of the Agency. The cost of such audit shall be borne by the Agency. B. Notwithstanding such principles and practices, the C. ARTICLE 6. REPORTS. A. Proqress Reports. The Agency shall submit progress reports as required bj the State Water Board Project Manager during and after Project construction. In addition, the Agency shall immediately advise the State Water Board Project Manager of any significant problems arising during the course of construction. B. Final Project Summary Report. The Agency shall submit to the State Water Board Project Manager a copy of a Final Project Summary Report within 60 days following completion of construction. The report shall briefly describe the Project as completed, its features, capacity, current and planned reclaimed water uses and users, and a cost summary. Project Manager a copy of the final Revenue Program within 60 days following completion of construction. D. Annual Report. The Agency shall submit annual progress reports to the State Water Board Project Manager for a period commencing with completion of construction through five years following completion of construction 01 seven years foll owing award of the prime construction subcontract, whichever occurs later. The reports shall briefly review the operation 01 the Project during the preceding year, identify current users and User Contracts, provide monthly Project water deliveries to each user and the monthly amounts of water from each source delivered through Project facilities, indicate current plans and programs for use of any Project capacity not under contract, summarize Project financial experience, describe compliance with any special conditions of this contract, and provide such other information as may be reasonably required to evaluate Project benefits and use of Project facilities. C. Final Revenue Proqram. The Agency shall submit to the State Water Board C-6 ? 0 0 4- ARTICLE 7. PROJECT CHANGES. A substantial change in the scope of the Project shall not be permitted without prior written approval of the State Water Board Project Manager. The Agency shall immediately provide the State Water Board Project Manager with a copy of any construction change orders with a brief explanation for each one and shall immediately notify the State Water Board Project Manager of any other significant changes in Project work. ARTICLE 8. LOAN DISBURSEMENTS; AVAILABILITY OF FUNDS. A. Loan Disbursements. Loan funds shall be promptly disbursed to the Agency on account of Project costs incurred on behalf of the Agency upon receipt of a loan disbursement request, provided that disbursements shall not be made before approval of this contract by the State Department of General Services and before receipt of notice of award of any construction subcontract for which disbursement is being requested. Disbursements shall not be made more frequently than once a month. The Agency shall not request disbursement for any Project cost until such cost has been incurred and has been paid by or is due and payable by the Agency. Although it is agreed that actual payment of such cost by the Agency is not required as a condition of loan disbursement, all loan disbursements received by the Agency shall be paid to subcontractors and vendors within 30 days from receipt of the funds. B. Final Disbursement. Total loan disbursements may not exceed 98 percent 01 the total loan amount until the Agency has submitted notices of completior of all construction contracts for the Project, final Revenue Program, and Final Project Summary Report. C. Allowance for Enqineerinq, Leqal, and Administrative Costs. The Agency may request a loan allowance on account of engineering, legal, and administrative costs for the purposes of design and construction of the Project. The eligible cost of the allowance shall be equal to 15 percent of the eligible construction cost of the Project, provided the allowance cannot exceed the actual costs incurred on account of the purposes of the allowance or of other purposes associated with the design or construction of the Project. For purposes of this provision, "construction cost" mean! the cost of erecting, installing, placing, altering, remodeling, improving, or extending facilities, whether accomplished by subcontract 01 force account, and the purchase price of real property or rights-of-way. The allowance will be subject to subsequent adjustment based upon actual construction cost incurred for the Project; provided, however, that total disbursements to the Agency, including such allowance, shall not exceed the maximum loan amount specified in this contract. provided for herein shall be the total amount allowed under this contract for engineering, legal, and administrative costs of the Project, regardless of the actual costs thereof. The initial request for disbursement may include a portion of the allowance for costs incurred associated with design and right-of-way The allowance c-7 - 4- 0 8 acquisition services for the Project, of the allowance shall be equal to actual costs incurred, provided it does not exceed 10 percent of the eligible construction cost of the Project. The remainder of the allowance shall be disbursed as costs are incurred during construction. D. Loan Disbursement Request Form. All requests for disbursement shall be accompanied by an appropriate loan disbursement request form, including a Project progress report, and such additional information and documentation as may be required by the State Water Board Project Manager to determine the amount of loan funds to be disbursed. In addition, all requests for disbursement shall be accompanied by a certification by the Agency’s Project Director that the costs for which loan funds are requested have been incurred and that they have been paid or will be paid within 30 days of receipt of the loan funds requested. Manager will provide the Agency with loan disbursement request forms and a description of the documentation required for disbursement. The State Water Board’s obligation to disburse any sum to the Agency under any provision of this contract is contingent upon the availability of sufficient funds to permit the disbursements provided for herein. In the event that sufficient funds do not become available for reasons beyond the reasonable control of the State Water Board, such as failure of the federal or state government to appropriate funds necessary for disbursement of loan amounts, the State Water Board shall not be obligated to make any disbursements to the Agency under this contract. This provision shall be construed as a condition precedent to the obligation of the State Water Board to make any disbursements under this contract. Agency with a right of priority for disbursement over any other agency. If any disbursements which are otherwise due to the Agency under this contract are deferred because of unavailability of sufficient funds, such disbursements will promptly be made to the Agency when sufficient funds do become available. The eligible cost of such portion The State Water Board Project E. Availabilitv of Funds. Nothing in this contract shall be construed to provide the ARTICLE 9. WITHHOLDING OF LOAN DISBURSEMENTS. A. The State Water Board may withhold all or any portion of the loan funds provided for by this contract in the event that: (1) Contract Violations. The Agency has materially violated, or threatens to materially violate, any provision or condition of this contract. Unsatisfactorv Project Proqress. The Agency has failed to submit a progress report or is unable to demonstrate, to the satisfaction of the State Water Board Project Manager, the ability to complete the Project or to maintain adequate progress toward completion thereof. (2) B. In the event that loan funds are withheld from the Agency, the State Water Board Project Manager shall notify the Agency of the reasons for withhold and advise the Agency of the time within which the Agency may remedy the failure or violation leading to the withhold. C-8 - - I- 8 0 ARTICLE 10. GENERAL LOAN PROVISIONS. A. Repayment. The Agency shall repay the loan amount, together with all interest accruing thereon, in full no later than the date specified in Section 7 of this contract. of each loan disbursement. Repayment shall be made in equal annual installments based on loan disbursements made through the date of repayment. falls two years after award of the prime construction subcontract. The date of loan disbursement is the date a disbursement check is issued by the State of California. The annual repayment amount shall be calculated according to the following procedure: (1) Calculate the sum of (a) the beginning loan balance one year prior to the due date of repayment, (b) the loan disbursements issued during the year prior to the due date of repayment, and (c) interest accruing on the beginning loan balance and each disbursement through the due date of repayment. Calculate the present worth of this sum to one year prior to the due date of repayment. Compute the repayment amount based on this present worth and a term equal to the period beginning one year prior to the due date of repayment through the due date of final repayment, including any fraction of year covered by the final repayment. The final repayment amount shall be based on the remaining loan amount after the prior repayment and interest accruing through the due date of final repayment. Interest shall accrue beginning on the date The first repayment is due on the last day of the month which (2) (3) For periods of less than one year interest shall be computed based on a daily interest rate equal to the annual rate divided by 365. Interest shall be compounded annually with the anniversary date being the due date of first repayment. Repayment shall be considered to apply to accrued interest first and then to remaining loan amount. Repayments shall be sent in the U. S. mail by certified mail or other method providing the Agency with a receipt of date of mailing. receipt and provide a copy of such receipt if requested by the State Water Board Project Manager as evidence of date of deposit of repayment in the mail. mailing shall be assumed to be two days prior to date of receipt by the State Water Board. The Agency shall retain such In the event of failure to provide such evidence, the date of B. ReDayment Schedule. Installments of principal and interest shall be paid in accordance with the Loan Repayment Schedule, which shall be calculated in accordance with the procedures hereinabove described. An interim schedule will be provided for information purposes before any disbursements have been made based on anticipated disbursements. Repayment Schedule shall be amended as necessary to accurately reflect actual amounts due under this contract. Any amended Loan Repayment Schedule will be prepared by the State Water Board and furnished to the The Loa1 c-9 - 0 0 -- Agency. any amendments thereto shall be incorporated therein by reference. penalty the outstanding balance of the principal and interest due at the date of mailing of prepayment to the State Water Board. due and payable on the dates shown on the Loan Repayment Schedule. The Agency shall make each loan payment on or before the due date therefor. A ten-day grace period will be allowed. tenth of one percent (0.1%) of the amount due shall be due for each day of nonpayment beyond the grace period through the date of mailing. purposes of penalty assessment, payment will be deemed to have been made if payment is deposited in the U. S. mail within the grace period with postage prepaid and properly addressed. Any penalties assessed will not be added to the loan balance but will be treated as a separate account and obligation of the Agency. Interest shall accrue on the total repayment amount from the due date of repayment through the date of mailing for any repayment made after the grace period. interest earned by the Agency on loan funds disbursed to the Agency. earned interest shall be remitted to the State Water Board within 60 days after completion of construction. F. Failure of Aqency to Disburse Funds. In the event that the Agency fails to disburse loan funds to subcontractors or vendors within 30 days from receipt of the funds, the Agency shall immediately return such funds to the State Water Board. Interest shall accrue on such funds from the date of disbursement through the date of mailing of payment to the State Water Board. If the Agency held such funds in interest-bearing accounts, any interest earned on the funds shall also be due to the State Water Board. Agency for construction of the Project exceed the lo'an share of eligible Project costs incurred by the Agency in design and construction of the Project, or the maximum loan amount specified in this contract, the Agency shall promptly remit such excess to the State Water Board. Taxes and Assessments. payments required by this contract to the State Water Board, notwithstanding any individual default by its constituents or others in the payment to the Agency of taxes, assessments, tolls, or other charges levied by the Agency. The Agency shall provide for the punctual payment to the State Water Board of all amounts which become due under this contract and which are received from constituents or others in the payment to the Agency of taxes, assessments, tolls, or other charges levied by the Agency. In the event of failure, neglect or refusal of any officer of the Agency to levy or cause to be levied any tax or assessment necessary to provide payment by the Agency under this contract, to enforce or to collect such tax or assessment, or to pay over to the State Water Board any money collected on the tax or assessment necessary to satisfy any c- 10 An interim Loan Repayment Schedule is provided in Exhibit D and C. Prepayment. The Agency may prepay at any time in full or in part without D. De1inquenc.y of Repayment. The installments of principal and interest are A penalty in the amount of one- For E. Earninqs on Loan Funds. The Agency shall pay to the State Water Board all Such G. Excess Receipts. In the event that state loan funds provided to the H. The Agency as a whole is obligated to make all .% -.t 0 0 amount due under this contract, 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 levying and collection of the taxes or assessments and the payment of the money collected therefrom to the State Water Board. State Water Board of, or limit the application of, any other remedy provided by law or by this contract. I. Pri0rit.y of Payment and Pledqe of Revenue. The Agency shall not incur any additional indebtedness having any priority for payment over the indebtedness due pursuant to this contract, nor shall the Agency pledge revenues from facilities or equipment constructed or obtained pursuant to this contract to the detriment of the Agency’s reasonable ability to repay any and all amounts due under this contract. J. Financial Report. Within 60 days after completion of construction, the Agency shall transmit to the State Water Board a final project financial report setting forth the following information: (1) (2) (3) Action taken pursuant hereto shall not deprive the The date of receipt and the amount of all funds disbursed by the State Water Board pursuant to this contract. The date of deposit of all such funds into an account of a financial institution. A statement whether such account receiving deposited loan funds was an interest-bearing account, and the date and amount of any interest that accrued on the loan funds therein. (4) The date, amount, and purpose of withdrawals from the account. (5) The amount of any unexpended funds remaining in the account. (6) The total cost of the Project and the estimated total eligible Project cost. (7) The sources and amounts of funds contributed to the Project. The report shall be accompanied by such other financial information as maj be reasonably requested by the State Water Board Project Manager. report shall include a certification by the Agency Project Director that the data in the report are correct, that costs attributed to the Project have been incurred in the amounts and for the purposes represented and that the work or material for which payment has been requested is satisfactory. Any change in the information supplied shall be promptly reported to the State Water Board. The ARTICLE 11. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS. In the event that any breach of any of the provisions of this contract by the Agency should result in the loss of tax exempt status for any state bonds, or if such breach should result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Agency shall immediately reimburse the State in an amount equal to any damage: paid by or loss incurred by the State due to such breach. c-11 e 0 T -& .’ - ARTICLE 12. TERMINATION. A. This contract may be terminated by written notice at any time by the State Water Board, acting through its Project Manager, at its option, upon: (1) Inadequate User Contracts or Project Use. obtain necessary User Contracts or to provide other assurances of use acceptable to the State Water Board, or failure of the Agency to take reasonable steps to promote use of Project capacity, or (2) Contractual Violations. Failure of the Agency, after written notice from the State Water Board Project Manager of the nature of the failure, to comply with any material provisions or conditions of this contract, or to provide the local share of the Project costs necessary for completion of construction, or failure thereafter to properly operate or maintain Project facilities. Failure of the Agency to (3) Lack of Local Fundinq. Failure of the Agency, during construction, B. Prior to termination, the Agency shall be notified of the condition for which termination is being considered and shall have failed to bring itself into compliance with the provisions or conditions of this contract within a reasonable time as established by the State Water Board Project Manager. C. In the event of such termination, the Agency shall, upon demand, immediately pay to the State Water Board an amount equal to the current balance due on the loan, including accrued interest, and all penalty assessments due. 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 Agency to the date of full repayment by the Agency. ARTICLE 13. DISPUTES. A. Except as otherwise provided in this contract, any dispute arising under or relating to the performance of this contract which is not disposed of by agreement between the Agency and the State Water Board Project Manager may be appealed to the Chief of the Division. The Chief of the Division shall reduce his or her decision to writing and mail or otherwise furnish a copy thereof to the Agency and to the State Water Board‘s Executive Director. The decision of the Chief of the Division shall be final and conclusive unless, within thirty (30) calendar days from the date of receipt of such copy, the Agency mails or otherwise furnishes a written appeal thereof to the State Water Board’s Executive Director. The decision of the State Water Board’s Executive Director, or his or her dulj authorized representative for determination of such appeals, shall be final and conclusive unless determined by a court of competent 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 Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute c-12 e e -A hereunder, the Agency shall proceed diligently with the performance of the contract and in accordance with the written decision of the Chief of the Di vi si on. 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 1 aw. ARTICLE 14. REMEDIES; COSTS AND ATTORNEY FEES. The Agency agrees that any remedy provided in this contract is in addition to and not in derogation of any other legal or equitable remedy available to the State Water Board as a result of breach of this contract by the Agency, whether such breach occurs before or after completion of the Project. The exercise of any remedy provided by this contract by the State Water Board shall not preclude the State Water Board from pursuing any legal remedy or right which would otherwise be available. the parties hereto arising from this contract, it is agreed that the prevailing party shall be entitled to such reasonable costs and/or attorney fees as may be ordered by the court entertaining such litigation. ARTICLE 15. WAIVER. The parties hereto may, from time to time, waive any rights under this contract unless such waiver is contrary to law, provided that any such waiver shall be in writing and signed by the party making such waiver. ARTICLE 16. CHANGE ORDERS. The State Water Board Project Manager may at any time, by written order designated to be a "change order", make any change in the provisions of this contract, provided, however, that such changes shall not increase the maximum loan amount permitted under this contract, increase the term of this contract. or result in a substantial change in the work. ARTICLE 17. AMENDMENT. This contract may be amended at any time by mutual written agreement of the parties. In the event of litigation between C-13 -8 .* d 0 Q ,- v EXHIBIT D LOAN REPAYMENT SCHEDULE SWRCB Contract No: Agency: Carlsbad Municipal Water District Construction Contract Award: 0: Loan Amount: $2,429,240.00 Contract Date: 01 interest Rate: 2.9000% Date of Disbursement: 2( Term (yrs): 19.764384 First Repayment: 3c Repayments: $1 64,153.75 Last Repayment: 31-A1 Amortized Amount: $2,443,329.59 Completion of Construction: 31 Status: Preliminary, 29-Jun-1993 164 153.75 40 095.37 124 058.38 1 254 Note: Please send all loan repayments to Accounting Office in the following address: State Water Resources Control Board Division of Administrative Services P.O. Box 100 Sacramento, CA 9581 2-01 00 Attention: Accounting Office D-I $1 L v J” EXHIBIT E NONDISCRIMINATION CLAUSE 1. During the performance of this contract, contractor and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age (over 40) or sex. Contractors and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. Contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq. ) , and the appl i cab1 e regul at i ons promu] gated thereunder (California Administrative Code, Title 2, Section 7285.0 et seq.) . Commission implementing Government Code, Section 12990, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. 2. This contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the contract. The appl icable regulations of the Fair Employment and Housing STD. 17A (New 5-83) E- 1