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Home My WebLink About2015-05-19; City Council; 21972; Award Contract Pulice Construction, Amend Agreement Arcadis, Funds for Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Reaches VC11B-VC15, Avenida Encinas Recycled Water Line 3492 3886 3949 5027CITY OF CARLSBAD AND CARLSBAD MUNICIPAL WATER DISTRICT - AGENDA BILL 14 AB# 21972 DATE 05-19-15 DEPT. PW-UTIL ACCEPT BIDS AND AWARD OF CONTRACT TO PULICE CONSTRUCTION IN THE AMOUNT OF $44,195,300. AMEND AGREEMENT WITH ARCADIS AND APPROPRIATE FUNDS FOR THE AGUA HEDIONDA SEWER LIFT STATION, VISTA/CARLSBAD INTERCEPTOR SEWER REACHES VCllB- VC15, AND AVENIDA ENCINAS RECYCLED WATER LINE PROJEa NOS. 3492, 3886, 3949, 5027 DEPT. DIRECTOR GEN. COUNSEL CITYMGR 2015-124 accepting bids and awarding a contract to Pulice RECOMMENDED ACTION: 1. Carlsbad City Council: a. Adopt Resolution No. _ Construction Inc. in the amount of $44,195,300 and appropriating additional sewer replacement funds for the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15; and Avenida Encinas Recycled Water Line Project Nos. 3492, 3886, 3949 and 5027. b. Adopt Resolution No. 2015-125 approving Amendment No. 1 to amend the professional services agreement with Arcadis for environmental monitoring during construction ofthe Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, Project Nos. 3492, 3886, and 3949. 2. Carlsbad Municipal Water District Board of Directors: a. Adopt Resolution No. 1522 appropriating additional water replacement funds for the Avenida Encinas Recycled Water Line, Project No. 5027. ITEM EXPLANATION: Proiect Background: The Vista/Carlsbad Interceptor Sewer System was originally constructed in 1965 and is jointly-owned by the City of Vista and the City of Carlsbad. The alignment, approximately eight miles in length within the City of Carlsbad, extends from just west of College Boulevard and Highway 78 to the Encina Water Pollution Control Facility (Encina). There are two sewer lift stations within the alignment, the Buena Vista Lift Station, and the Agua Hedionda Lift Station (Exhibit 4). Both are maintained and operated by the Encina Wastewater Authority through a joint agreement. The upper reaches of the Vista/Carlsbad Interceptor Sewer System from VCl through VCllA have been replaced or rehabilitated in recent years. Reaches VCllB through VC15, which include the Agua Hedionda Lift Station and the adjacent trestle bridge supporting the sewer line over and across the DEPARTMENT CONTACT: Terry Smith 760-603-7534 terry.smith@carlsbadca.gov FOR SECRETARY USE. BOARD ACTION: APPROVED CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER - SEE MINUTES • AMENDED • REPORT RECEIVED • Award Construction Contract to Pulice May 19, 2015 Page 2 of 5 Agua Hedionda Lagoon, are in a state of declining condition and need to be replaced. Additionally, these facilities do not have the capacity to convey the ultimate sewer flows projected for the basin. The Agua Hedionda Lift Station is the city's largest sewer lift station and is located on the south shore area adjacent to the lagoon on property owned by NRG Energy. The remaining portion ofthe gravity sewer to Encina, approximately two miles in length, does not have adequate capacity to convey the future sewer flows that are anticipated. This reach of interceptor sewer has also been identified for replacement in the city's Sewer Master Plan to address the capacity deficit. Proiect Description: The project includes the replacement of the existing wood trestle bridge over the Agua Hedionda Lagoon with a new 140 foot long steel truss bridge to support the pipeline, construction of a new 33 million gallon per day sewage lift station located approximately 50 feet east of the current facility, and construction of a new parallel force main and gravity sewer to provide increased capacity and reliability to the sewer system. The new gravity sewer will be constructed within the right-of-way of Avenida Encinas and a portion of the new sewer will require installation by microtunneling. The new force main construction will utilize a combination of standard construction methods and horizontal directional drilling to avoid utilities within Cannon Road and Avenida Encinas. The existing gravity sewer downstream of the lift station will continue to be utilized to convey a portion ofthe daily sewage flows from the new lift station and to maintain existing sewer connections south of Cannon Road. The new sewer bridge is being designed to accommodate the occasional maintenance vehicle and will be suitable for use by the Coastal Rail Trail as that project moves forward in the future. In an effort to minimize future construction impacts to Avenida Encinas, a recycled water line will also be constructed as part ofthe project. The recycled water line is approximately 11,000 linear feet and will extend from the Carlsbad Water Recycling Facility to the new sewer bridge at the Agua Hedionda Lagoon channel. The pipeline will interconnect with existing recycled water lines in Palomar Airport Road and Cannon Road to improve reliability and water quality to District customers. The pipeline will also provide recycled water to customers along Avenida Encinas, the future Carlsbad Energy Center Project, and may be extended in the future to serve recycled water to the village. The cost of the recycled water line north of Cannon Road, approximately 3,300 linear feet of 12-inch pipe, will be reimbursed to the District by Carlsbad Energy Center LLC, a subsidiary of NRG Energy, Inc. A cost reimbursement agreement with NRG was approved by the board at a meeting held on Feb. 10, 2015 as Board Resolution No. 1518. Once pipeline work is complete in Avenida Encinas, the roadway will receive an asphalt pavement overlay and will be restriped to incorporate bike lanes. The pavement overlay will be full width and will extend from Palomar Airport Road to Cannon Road. A portion of the pavement overlay will be funded from the Pavement Management Fund. Amendment to Arcadis Agreement: Construction Management and Inspection ofthe project will be performed for the city by the consulting firm, Arcadis U.S., Inc. The City has previously entered into a professional services agreement with Arcadis and staff has requested that Arcadis provide a scope-of- work and fee proposal to provide additional field monitoring and reporting during construction to comply with the environmental permits that have been issued for the project. The additional services are further defined in the attached Amendment No. 1 to the agreement with Arcadis. 2 Award Construction Contract to Pulice May 19, 2015 Page 3 of 5 Bidding for Construction Contract: On Feb. 10, 2015, through Resolution No. 2015-037 and Agenda Bill No. 21,856, City Council approved plans and specifications and authorized the advertisement for bids for the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, and Avenida Encinas Recycled Water Line Project. The engineer's estimate for construction is $43,500,000. On April 14, 2015, eight sealed bids were received for the project as shown on the following table. CONTRACTOR TOTAL BID 1. Pulice Construction Inc. $44,195,300 2. Shimmick Construction Company Inc. $45,141,000 3. PCL Construction Inc. $47,616,625 4. OHLUSAlnc. $47,739,000 5. James W. Fowler Company $49,929,000 6. ARB $50,356,700 7. LH. Woods 8t Sons Inc. $54,650,000 8. Steve P. Rados Inc. $65,762,000 On April 20, 2015, staff received a letter of bid protest from the second low bidder, Shimmick Construction. They state that Allied Steel (Allied) should have been listed as a subcontractor by Pulice on the Designation of Subcontractor form because Allied was listed on the Disadvantaged Business Enterprise subcontractor listing. According to public contract code, a subcontractor only needs to be listed if they are doing one half of one percent of the total work. The dollar amount listed on the DBE form exceeds that, however, Pulice has stated that Allied does not meet the threshold because the DBE dollar amount includes materials that will be purchased separately. These concerns were reviewed by the City Attorney's office and found to be without merit. The City Attorney has prepared a letter to Shimmick Construction responding to their specific concerns and informing them of the right to protest the award at the council meeting. Staff also found an error in Pulice's bid. A new law requires the contractor's license number be listed for each subcontractor. This is to aid the city in verifying licensure. A single digit was missing from one subcontractor's listing. Despite the missing number, staff was able to verify licensure with the information provided. The City Attorney's office has reviewed this issue and recommends that the City Council waive this error as inconsequential because it does not affect the amount ofthe bid or give Pulice an unfair advantage over the other bidders. The bid is otherwise responsive. Staff recommends awarding the contract to the lowest responsive bidder, Pulice Construction Inc. for the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, and Avenida Encinas Recycled Water Line Project Nos. 3492, 3886, 3949 and 5027. Award Construction Contract to Pulice May 19, 2015 Page 4 of 5 FISCAL IMPAa: A summary of current and projected project costs is as follows PROJECT COST SUMMARY FOR THE AGUA HEDI SEWER REACHES VCllB - VC15, AND AV (PROJECT NOS. 3492,3£ ONDA SEWER LIFT rENIDA ENCINAS R 86, 3949, 5027 & STATION;V/C INTERCEPTOR ECYCLED WATER LINE 6001) SEWER RECYCLED WATER TOTAL Pre-Construction Phase Expenditures & Encumbrances $5,550,000 $250,000 $5,800,000 Phase 1 Construction (Vegetation Clearing, Emergency Pump Lease) $402,000 $0 $402,000 Pulice Construction Contract $40,164,100^ $4,031,200^ $44,195,300 Construction Contingency (8%) $3,213,128 $322,496 $3,535,624 Relocation of 12" Gas Line by SoCal Gas $2,848,350 $0 $2,848,350 Community Outreach Consultant $140,000 $0 $140,000 Construction Management, Inspection and Contract Administration $5,582,422 $446,304 $6,028,726 TOTAL ESTIMATED PROJECT COSTS $57,900,000 $5,050,000 $62,950,000 CURRENT APPROPRIATION $54,730,000 $2,900,000 $57,630,000 PAVEMENT MANAGEMENT APPROPRIATION $270,000 $0 $270,000 ADDITIONAL APPROPRIATION REQUIRED $2,900,000 $2,150,000 $5,050,000 bcneauies A, b, L ana a poriion or :>cne( Schedule D and a portion of Schedule E, Budget deficits of $2.9 million and $2.15 million have been identified for the sewer project and recycled water line project, respectively. The sewer budget deficit can be attributed to increased costs for the relocation of the 12-inch diameter high pressure gas line to be performed by the Southern California Gas Company, the lease of emergency bypass pumps at the sewer lift station, additional support for community outreach and overall construction cost escalation. All sewer related project costs will be shared between the City of Carlsbad and the City of Vista as defined in a project agreement approved at a City Council meeting held on Feb. 10, 2015 per Resolution No. 2015-039. Vista's share ofthe sewer project is approximately $37 million. The $2.15 million deficit in the recycled water line budget can be attributed to the additional quantity of recycled water pipeline to be installed at both the north and south ends of the project. However, the budget shortfall will be partially offset by reimbursement of approximately $1.0 million to the recycled water fund from NRG Energy for extension ofthe recycled water line to the north of Cannon Road for the future Carlsbad Energy Center Project. The overall budget deficit was anticipated in the Authorization to Bid Agenda Bill #21,856 approved by City Council on Feb. 10, 2015. The budget deficits as identified will require an additional appropriation of $2,900,000 from the Sewer Replacement Fund and $2,150,000 from the Water Replacement Fund. 4 Award Construction Contract to Pulice May 19, 2015 Page 5 of 5 Funding is available in the Sewer Replacement Fund and Water Replacement Fund balances to provide the additional appropriations. ENVIRONMENTAL IMPACT: A Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) were prepared for the Agua Hedionda Sewer Lift Station, Force Main and Gravity Sewer Replacement project (PDP 00-02(C)/SP 144(L)/RP 10-26/CDP 10-17/HDP 10-05/SUP 10-02/HMP 10-03). The MND was adopted by the City Council on Dec. 6, 2011, in compliance with the California Environmental Quality Act (CEQA) Guidelines Section 15074. PUBLIC NOTIFICATION: None required. EXHIBITS: 1. Resolution No. 2015-124 accepting bids and awarding a contract to Pulice Construction Inc. in the amount of $44,195,300 and appropriating additional sewer funds for the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VCllB - VC15, and Avenida Encinas Recycled Water Line Project Nos. 3492, 3886, 3949 and 5027. 2. Resolution No. 1522 appropriating additional water replacement funds for the Avenida Encinas Recycled Water Line, Project No. 5027. 3. Resolution No. 2015-125 approving Amendment No. 1 to amend the professional services agreement with Arcadis for environmental monitoring during construction ofthe Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, Project Nos. 3492, 3886, 3949, and 5027. 4. Amendment No. 1 to Agreement with Arcadis for Construction Management 8t Inspection Services for the Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, and the Agua Hedionda Sewer Lift Station Project No. 3949, 3492, 3886. 5. Location Map. 6. Project Agreement between the City of Carlsbad and the City of Vista. EXHIBIT 1 1 RESOLUTION NO. 2015-124 3 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ACCEPTING BIDS AND AWARDING A CONTRACT TO PULICE CONSTRUCTION, INC., IN THE AMOUNT OF $44,195,300 4 AND APPROPRIATING ADDITIONAL SEWER REPLACEMENT FUNDS FOR THE AGUA HEDIONDA SEWER LIFT STATION, 5 VISTA/CARLSBAD INTERCEPTOR SEWER REACHES VC11B-VC15, AND AVENIDA ENCINAS RECYCLED WATER LINE, PROJECT NOS. 3492, 3886, 3949 AND 5027. 6 7 8 9 10 11 12 13 14 27 28 WHEREAS, the City Council of Carlsbad, California has determined it necessary, desirable, and in the public interest to replace the Agua Hedionda Sewer Lift Station and the Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15 and to construct a new recycled water main in Avenida Encinas extending from the Carlsbad Water Recycling Facility to Agua Hedionda Lagoon; and WHEREAS, on Feb. 10, 2015, through the adoption of Resolution No. 2015-037, the 1^ Carlsbad City Council approved plans and specifications and authorized the City Clerk to 5 advertise to receive bids for the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor 17 Sewer Reaches VC11B-VC15 and Avenida Encinas Recycled Water Line, Project Nos. 3492, 8 3886, 3949 and 5027; and 19 WHEREAS, eight sealed bids were received on April 14, 2015, by the City of Carlsbad for the construction of this project; and WHEREAS, the lowest responsive and responsible bid for the project was submitted by Pulice Construction, Inc. in the amount of $44,195,300; and WHEREAS, Public Contract Code Section 4104 requires the listing of subcontractor's 20 21 22 23 24 25 license number when they are performing more than one half of one percent ofthe work; and 26 WHEREAS, Pulice Construction, Inc. left out a single digit from subcontractor Daley Corporation's license number; and 1 WHEREAS, the City Attorney recommends a waiver of that mistake as it does not affect ^ the amount of the bid and does not give Pulice Construction, Inc. an unfair advantage over the 3 other bidders; and 4 WHEREAS, Shimmick Construction, the second low bidder, has alleged that Pulice 5 Construction, Inc. has failed to list Allied Steel as a required subcontractor; and 6 7 WHEREAS, staff has investigated the claim and determined that the subcontractor does 8 not meet the minimum threshold of required work to be listed and recommends that the City Council deny the protest; and WHEREAS, $54,730,000 has been appropriated from the Sewer Replacement Fund and $270,000 from the Pavement Management Program; and WHEREAS, an additional appropriation is necessary for construction and construction related services; and WHEREAS, the Cities of Carlsbad and Vista as joint owners in the project, have entered into a Project Agreement, which was adopted by Council Resolution No. 2015-039 on Feb. 10, 2015 to define project responsibilities and cost share of the project; and WHEREAS, a Mitigated Negative Declaration and Mitigation Monitoring and Reporting 9 Program were adopted by the City Council on Dec. 6, 2011. 20 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 21 California, as follows: 22 1. That the above recitations are true and correct. 23 2. The error in the listing of subcontractor Daley Corporation license number be 24 25 26 27 28 ^ 9 10 11 12 13 14 15 16 17 waived as inconsequential, 1 3. The bid protest of Shimmick Construction is denied as Allied Steel was not required 2 to be listed as a subcontractor and will not be allowed to perform work in excess of one half of one percent. 4. That the bid in the amount of $44,195,300 submitted by Pulice Construction, Inc., for the construction of the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15 and Avenida Encinas Recycled Water Line, Project Nos. 3492, 3886, 3949 3 4 5 6 7 g and 5027, is accepted and the Mayor is hereby authorized to execute a contract with Pulice 9 Construction, Inc. 10 5. The City Manager is hereby authorized to approve change orders in an amount not ^ ^ to exceed eight percent of the original Construction Contract. 6. That the Administrative Services Director is hereby authorized to appropriate an additional $2.9 million to the project from the Sewer Replacement Fund. 7. That the award of this contract is contingent upon Pulice Construction, Inc. 15 • executing the required contract and submitting the required bonds and insurance policies, as 17 described in the contract, within twenty (20) calendar days of adoption of this resolution. The 18 City Manager may grant reasonable extensions of time. 19 12 13 14 20 21 22 23 26 27 28 // // // // 24 // 25 // // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the Carlsbad City Council and Carlsbad Municipal Water District Board of Directors, held on the 19th day of May 2015, by the following vote: AYES: Council Members Hall, Blackburn, Schumacher, Wood, Packard NOES: None. ABSENT: None. MATT HALL, Mayor ATTEST: BARBARA psIG^ESON, City Clerk (SEAL) EXHIBIT 2 1 RESOLUTION NO. 1522 2 A RESOLUTION OF THE BOARD OF DIRECTORS OF CARLSBAD MUNICIPAL WATER DISTRICT (CMWD), APPROPRIATING ADDITIONAL WATER REPLACEMENT FUNDS FOR THE AVENIDA 4 ENCINAS RECYCLED WATER LINE, PROJECT NO. 5027 5 WHEREAS, the Board of Directors ofthe Carlsbad Municipal Water District, California 6 y has determined it necessary, desirable, and in the public interest to install approximately 7,700 g linear feet of 18-inch diameter and 3,300 linear feet of 12-inch diameter polyvinyl chloride 9 (PVC) pipeline and 26 recycled water services in and near Avenida Encinas; and 10 WHEREAS, an environmental impact assessment was conducted for the Avenida Encinas Recycled Water Pipeline as part of the Phase III Recycled Water Project, and a Mitigated 12 Negative Declaration and Mitigation Monitoring and Reporting Program was approved by the 13 Board through Resolution No. 1455, on Nov. 27, 2012; and 14 WHEREAS, a separate environmental review was performed for the portion of the 16 recycled water line north of Cannon Road and a Mitigated Negative Declaration and Mitigation 17 Monitoring and Reporting Program was adopted by the Carlsbad City Council on Dec. 6, 2011; and WHEREAS, on Feb. 10, 2015, through the adoption of Resolution No. 1517, the Board of 20 Directors approved plans and specifications and authorized the Secretary to the Board to receive bids for the Avenida Encinas Recycled Water Line ("Project"), Project No. 5027; and WHEREAS, eight sealed bids were received on April 14, 2015, by the City of Carlsbad for the construction of this project and the Agua Hedionda Sewer Lift Station and Vista/Carlsbad 25 Interceptor Sewer, Reaches VCllB-VC15 ("Combined Project"); and 26 WHEREAS, the lowest responsive and responsible bid for the Combined Project was submitted by Pulice Construction, Inc. in the amount of $44,195,300; and 10 18 21 22 23 24 27 28 1 WHEREAS, the bid for the Avenida Encinas Recycled Water Line construction was shown ^ in Schedule D of the Contractor's Bid Proposal in the amount of $3,856,200; and WHEREAS, $175,000 of the Combined Project mobilization cost shown in Schedule E of the Contractor's Bid Proposal will be paid from Water Replacement Funds; and WHEREAS, $2,900,000 has been appropriated in the 2014-2015 Capital Improvement Program from the water replacement fund; and 8 WHEREAS, an additional appropriation is necessary for construction costs and 9 construction related services ofthe recycled water line project; and WHEREAS, a portion of the budget deficit is attributable to the extension of 3,300 linear feet of recycled water line to the Carlsbad Energy Center Project; and WHEREAS, Carlsbad Energy Center, LLC has entered into an agreement with the District as adopted by Board Resolution No. 1518 to reimburse the District for approximately $1 million of the project cost that are necessary to serve the Carlsbad Energy Center Project; and NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of 10 11 12 13 14 15 16 ly the City of Carlsbad, California, as follows: I g 1. That the above recitations are true and correct. 19 2. That the Administrative Services Director is hereby authorized to appropriate an 20 additional $2.15 million to the Project from the Water Replacement Fund. 21 22 23 24 25 26 27 28 // // // // // // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting ofthe Carlsbad Municipal Water District Board of Directors and the Carlsbad City Council, held on the 19th day of May 2015, by the following vote: AYES: NOES: ABSENT: Board Members Hall, Blackburn, Schumacher, Wood, Packard None. None. MM-MATT HALL, President ATTEST: BARBARA ENGf-EpON, Secretary (SEAL) EXHIBIT 3 1 RESOLUTION NO. 2015-125 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AMENDMENT NO. 1 TO AMEND THE PROFESSIONAL SERVICES AGREEMENT WITH ARCADIS FOR 4 ENVIRONMENTAL MONITORING DURING CONSTRUCTION OF THE AGUA HEDIONDA SEWER LIFT STATION AND 5 VISTA/CARLSBAD INTERCEPTOR SEWER, REACHES VC11B-VC15, PROJECT NOS. 3492, 3886, 3949 AND 5027. 6 7 8 9 10 20 21 22 23 24 27 28 WHEREAS, on Nov. 4, 2014, the City entered into an Agreement with Arcadis for construction management and inspection services for the Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VCllB - VC15, and the Avenida Encinas Recycled 11 Water Line ("Project"), Project Nos. 3492, 3886, 3949 and 5027; and 12 WHEREAS, City staff have requested a fee proposal from Arcadis to provide additional ^•^ monitoring and reporting during construction to comply with environmental requirements and 14 permits issued to the Project; and 15 WHEREAS, city staff and Arcadis have negotiated fees in an amount not-to-exceed 16 $325,881 to provide the additional monitoring and reporting services for the project, as 1 g described in Amendment No. 1 to the Agreement; and 19 WHEREAS, funds have been appropriated in the 2014-2015 Capital Improvement Program from the Sewer Connection Fee Fund and sufficient funds are currently available; and WHEREAS, Carlsbad will be reimbursed by the City of Vista for their portion of the additional monitoring and reporting services. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 25 California, as follows: 26 1. That the above recitations are true and correct. 1^ 1 2. That Amendment No. 1 to the Agreement with Arcadis in an amount not-to- ^ exceed $325,881 for Construction Management and Inspection Services for the Vista/Carlsbad 3 Interceptor Sewer Reaches VCllB - VC15, and the Agua Hedionda Sewer Lift Station projects is approved and the Mayor is hereby authorized and directed to execute said agreement. // // // // // // // // // // // 4 5 6 7 8 9 10 11 12 13 14 15 16 // 17 // 18 // 19 // 20 21 22 23 24 25 26 27 28 // // // // // // // // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting ofthe Carlsbad City Council and the Carlsbad Municipal Water District Board of Directors held on the 19*^ the day of May, 2015, by the following vote to wit: AYES: NOES: ABSENT: Council Members Hall, Blackburn, Schumacher, Wood Packard None None MATT HALL, Mayor ATTEST: BARBARA ENQj.ESON, City Clerk (SEAL) UTIL11.39 AMENDMENT NO. 1 TO AGREEMENT FOR CONTRUCTION MANAGEMENT AND INSPECTION SERVICES FOR THE VISTA/CARLSBAD INTERCEPTOR SEWER, REACHES 11 B-15, AND THE AGUA HEDIONDA SEWER LIFT STATION PROJECT NO. 3949, 3492, 3886 ARCADIS U.S., INC. This Amendment No. 1 is entered into and effective as of the day of , 2015, amending the agreement dated November 4, 2014 (the "Agreem^t") by and between the City of Carlsbad, a municipal corporation, ("City"), and ARCADIS U.S. INC., a Delaware corporation, ("Contractor") (collectively, the "Parties") for Construction Management and Inspection Services for the Vista/Carlsbad Interceptor Sewer, Reaches 118-15 and the Agua Hedionda Sewer Lift Station. RECITALS A. The Parties desire to alter the Agreement's scope of work to add Environmental Mitigation Monitoring Support during construction ofthe Project; and B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those sen/ices contained in the Agreement, as may have been amended from time to time. Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed three hundred twenty five thousand eight hundred eighty one dollars ($325,881). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by November 3, 2017. 4. All other provisions ofthe Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. /// /// /// City Attorney Approved Version 1/30/13 UTIL1139 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the tenns and conditions of this Amendment. CONTRACTOR ARCADIS U.S., INC., a Delaware corporation By: (sign here) Jon Westervelt / Vice President (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California Matt Hall / Mayor ATTEST: If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attomey City Attorney Approved Version 1/30/13 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Dafe personally appeared' before rrieT^cx yfV Here Insert Name and Title of the Officer Name{s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persor^fe) whose name^ is/afe subscribed to the within instrument and acknowledged to me that he/sheAb«y executed the same in his/fci©fi^ir authorized capacity(iee), and th^by his/heft'their signature^s^on the instrument the person'^Sj^ or the entity upon behalf of which the personf^ acted, executed the instrument. Sa"FranoiscoCoumv I I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. iNc^cs my Signature AS Signature Place Notary Seal Above OPTIONAL Tfiough this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended documerH. Description of Attached Document Title or Type of Document: O. ct^^ tO c^Cr-^ Number of Pages: Signer(s) Other Than Named Above Capacity{ies) Claimed by Signer{s) Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Consen/ator • Other; Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — • Umited • General • Individual • Attorney in Fact • Trustee • Guardian or Consen/ator • Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 1^ Secretary Certificate I, Gerard P. Cavaluzzi, Assistant Secretary of ARCADIS U.S., Inc. (the "Corporation"), do HEREBY CERTIFY and attest that the Corporation, in accordance with the bylaws of the Corporation, Resolution of the Board of Directors, and delegation of the Chief Executive Officer, has duly authorized and directed Jon Westervelt, in his capacity as Vice President of ARCADIS U.S., Inc., to execute and sign, on behalf of ARCADIS U.S., inc., Amendment No. 1 to the City of Carlsbad Agreement for Construction Management and Inspection Services for the Vista/Carlsbad Interceptor Sewer, Reaches 11 B-15, and the Agua Hedionda Sewer Lift Station, Project No. 3949, 3492, 3886 and to affix the corporate seal on such documents, and his signature shall be legal and binding upon the corporation. ATTEST; STATE OF New York County of Westchester Assistant Secretary April 21, 2015 ss. ) Personally appeared Gerard P. Cavaluzzi , Assistant Secretary of ARCADIS U.S., Inc. , signer and sealer of the foregoing instrument, who, being duly authorized, acknowledged the same to be his free act and deed and the firee act and deed of said Corporation, before me. My Commission expires May 23, 2017 wmimsi Notary Public - State of New York No. 01CU6127240 Qualified in Weslchester County My Comm. Eitpires May 23. 20t7 Notary Public EXHIBIT - A ^ ARCADIS Imagine the result Infrastructure ^ Water Environment • Binldiiygs City of Carlsbad Agua Hedionda Sewer Force Main and Lift Station Environmental IVIitigation IVlonitoring Support March 2015 3.0 ^ ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services | Table of Contents Table of Contents Introctuction 1 Scope of Work 2 Task 1.0: MMRP Management 2 Tasl^ 1.1: Meetings 2 Task 1.2: Pre-Constnjction Mobilization 3 Task 1.3: Reporting 3 Task 2.0: Environmental Compliance Monitoring 4 Task 2.1: Worker Environmental Awareness Program (WEAR) Training 5 Task 2.2: Compliance Monitoring 6 Biological Resources 6 Cultural Resources 7 Paleontological Resources 8 Marine Biology 9 ARCADIS Team 10 Cost Estimate 13 Appendices A MMRP Responsibilities B Cost Detail Spreadsheet This proposal and its contents shall not be duplicated, used, or disclosed—in whole or in part—for any purpose other than to evaluate the proposal. This proposal is not intended to be binding or form the tenns of acontract. The scope and price of this pnyposal will be superseded by the contract. If this proposal Is accepted and a contract is awarded to ARCADIS as a result of — or In connection with — the submission of this proposal. ARCADIS and/or the client shall have the right to make appropriate revisions of its tenns, including scope and price, for purposes ofthe contract Further, client shall have the right to duplicate, use or disclose the data contained in this proposal only to the extent provided In the resulting contract. ^ ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services | Introduction Introduction ARCADIS is pleased to present the City of Carlsbad (City) this proposal to provide mitigation monitoring and compliance sen/ices in support of the Agua Hedionda Sewer Lift Station and Force Main Project (Project). ARCADIS understands that the City is seeking a consultant to implement the approved Mitigation Monitoring and Reporting Program (MMRP) and monitor Project compliance with Mitigation Measures, and other conditions and stipulations that apply to the Project as a result of issuance of approvals or permits to build and operate the Project. Primary goals of the monitoring program are to: • Conduct monitoring of Project construction activities. • Evaluate compliance or non-compliance with Project mitigation measures, permits, stipulations, conditions, or other regulatory requirements. • Document compliance or non-compliance with the project specific requirements. Additional goals include: • Act as an extension of City staff by serving as the City's "eyes and ears" at the Project site during construction. • Perfomiing compliance monitoring activities as part ofthe Contractor and City team in a proactive, constructive, and cost effective manner. • Providing expert compliance monitoring consulting services to develop creative and innovative solutions to unanticipated challenges that occur during construction ofthe Project. • Treating all project personnel and stakeholders in a professional manner with respect at all times, The ARCADIS team offers the City the compliance monitoring experience, subject matter expertise, and project management expertise to deliver cost effective comprehensive compliance monitoring services. Our approach has been developed based on our experience providing similar compliance monitoring services for our clients in Southern California. The ARCADIS approach to compliance monitoring is predicated on our team of experienced subject matter experts and seasoned compliance monitoring personnel who bring a detailed understanding ofthe construction methods and mitigation requirements necessary to complete the Project. Use or disclosure of infonnation contained on this sheet Is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 0-^ m ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Sen/ices | ARCADIS Team Scope of Work The ARCADIS team has developed a scope of work and level of effort for the Project in careful consideration of the mitigation monitoring requirements as outlined in the MMRP as well as our experience providing these services on multiple similar projects in Southern California. Core project objectives include constmction ofthe Project in compliance with all applicable environmental permit conditions and approved mitigation measures, meeting regulatory expectations, and creating a positive impression on stakeholders and regulatory agencies. The following sections describe how ARCADIS will accomplish the primary tasks associated with implementation ofthe MMRP. Assumptions utilized in developing the scope of work that in turn drive the cost estimate are provided where appropriate per task and subtask. The following scope of work has been developed prior to the selection of a construction contractor that will develop their own construction plan, schedule, and means and methods of constructing the project. Once the construction contractor has developed their detailed approach to constructing the project the scope of work described herein will be reviewed and refined to reflect the actual plan to construct the Project. This may result in greater or lesser level of effort that in turn would affect the cost estimate. However, we have developed the following scope of work based on experience on similar projects and professional judgment ofthe level of compliance monitoring required as described in the MMRP and related environmental permits. Task 1.0: MMRP Management ARCADIS will manage the overall implementation ofthe MMRP and associated pennit conditions such as those contained in the USAGE of Engineers 404 Permit and California Coastal Commission Coastal Development Permit (CDP). Attached in Appendix A is an annotated copy ofthe MMRP indicating the specific mitigation measures ARCADIS will lead and those assumed to be managed by others such as the City of Carisbad and the construction Contractor. ARCADIS will provide a Compliance Manager to oversee implementation of MMRP tasks our team is responsible for implementing. The Compliance Manager will serve as the liaison between the monitoring team and the City and direct the monitoring activities as well as providing progress reports, budget status reports, compliance reports and other communications with the City as necessary. Task 1.1: Meetings The Compliance Manager will attend and participate in project meetings including: Use or disclosure of Infonvation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document. 0091418808 (a ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Sen/ices | ARCADIS Team • Pre-constructlon kickoff meeting (assumed to last up to four hours) • Construction progress meetings held at City offices (assumed to occur once per week) Task 1.2: Pre-Construction Mobilization The ARCADIS compliance monitoring team will review all available project materials to become familiar with the construction plan, sequencing, schedule, and any mitigation planning and associated activities that the City has initiated (e.g., habitat acquisition or pre-construction surveys). The ARCADIS compliance team will assist the City in determining the status of pre- construction measures that are required to be completed prior to the initiation of construction activities. The annotated MMRP provided in Appendix A will serve as a tracking tool for status of mitigation measure implementation and will be updated and provided to the City as needed during project construction. Assumptions: 1. City will provide all relevant Project documentation via hard copy or digital format. 2. Annotated MMRP to be provided to City 30 days prior to project construction, 30 days following initiation of construction, and 30 days post construction. Task 1.3: Reporting Routine Reporting To keep the City apprised of the status of the construction compliance program as well as provide environmental documentation as required by the State Revolving Funding agreement, ARCADIS will prepare weekly, monthly, and quarterly compliance status reports using standard compliance report formats and supplemented with representative photographs of construction activities and mitigation implementation. Prior to distribution to the construction contractor or other agencies, the reports will be reviewed and approved by the Compliance Manager for quality and consistency. Weekly monitoring reports will be submitted to the distribution list approved by the City by noon Monday for the preceding week's activities. Monthly compliance reports will be distributed by the 5*^ day of the month for the preceding month's activities. Assumptions: 1. Weekly, monthly, and quarteriy compliance status reports to be provided to City in digital format. 2. Distribution list for status reports to be provided by the City. Notice of Violation or Emergency Reporting Use or disclosure of information contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document. 0091418808 ^>L- (a ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services | ARCADIS Team In the event of a serious non-compliance event (after responding to the serious non-compliance via stop work), the City will be notified immediately via phone, email, or other means. The purpose ofthe notification will be to provide the City with real-time information about the incident, the plan for mitigation, corrective action, and respond to media, public, or other stakeholder Inquiries as needed. Additionally, the notification will allow the Compliance Manager to confer with the City regarding appropriate steps to address the incident. A summary report of the incident will be provided to the City within 24 hours of the incident, followed by a non-compliance report within 48 hours in the event of any non-compliance event. Assumptions: 1. City to provide list of Notice of Violation and emergency contacts. 2. Written notifications to be provided to City in digital fomiat. Project Completion Environmental Compliance Report ARCADIS will prepare a Project Completion Environmental Compliance Report within 30 days of Project completion that summarizes the environmental monitoring activities conducted throughout the construction process. The report will draw from the weekly and monthly compliance reports submitted to the City during the construction phase and provide information on environmental compliance in a summary tabular format. Any reports generated during the course of environmental compliance monitoring or summary reports for biological or cultural resources monitoring will be appended to the Project Completion Environmental Compliance Report. Assumptions: 1. Draft Project Completion Environmental Compliance Report to be provided to City within 30 days of Project completion. 2. Project Completion Environmental Compliance Report to be revised and finalized within two weeks of receipt of consolidated comments from City. 3. Project Completion Environmental Compliance Report to be provided to City in hard copy and digital formats. Assume three hard copy reports to be produced. Task 2.0: Environmental Compliance Monitoring Construction projects are subject to changing conditions associated with weather, construction sequencing, means and methods, biological and cultural resources, agency inspection/permit requirements, availability of construction crews, traffic conditions, and a wide array of other challenges. The ARCADIS team has the experience and expertise to appropriately and efficiently recognize and rapidly communicate changing conditions to our compliance monitoring team and the City, work collaboratively to develop corrective actions or implement contingency Use or disclosure of Information contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Sen/ices | ARCADIS Team measures, and prepare the necessary compliance and Inspection documentation, Accordingly, ARCADIS will work closely with the City and the construction Contractor to: • Anticipate, define, manage, and document field activity, schedule, and staffing changes • Identify, assess, communicate, document, and obtain necessary authorizations for deviations from required mitigation measures • Identify, document, evaluate, and correct near-miss environmental compliance issues • Identify, document, evaluate, communicate, and resolve environmental compliance incidents Non-compliance issues commonly occur when there has been a change in conditions or when the project construction approach has been modified. As such, ARCADIS closely monitors and addresses changes in construction to achieve project compliance. ARCADIS believes that it is crucial to identify and document construction changes in advance of deployment through weekly and monthly schedule review, evaluation of near-miss conditions for environmental compliance and monitoring. Through this process of evaluating proposed construction changes and near- miss conditions we are able to recognize potential risk factors, develop corrective actions to reduce the potential for an environmental compliance violation or other significant incident, and communicate recommended corrective actions to the construction team. Task 2.1: Worker Environmental Awareness Program (WEAR) Training As required by mitigation measure BIO-7 and USAGE 404 Pemnit Pre-Construction Condition 6, ARCADIS will provide WEAR training to construction Contractor personnel. The training will cover sensitive environmental resources that may be present within the project area and steps to be taken if these resources are observed or encountered. The training will be held as a part of the tailboard safety by the biological or archaeological monitor. The training will be provided at the beginning of project construction and be documented with sign in sheets. Up to three additional WEAR trainings may be provided in the event subcontractors are brought on to the project following the initial WEAR training. Alternatively, new workers can be WEAR trained as part of daily tailboard meetings. Assumptions: 1. WEAR training materials to be produced limited to black and white handouts and training sign in sheets. 2. WEAR training to be held on-site as part of routine safety tailboard meetings. Use or disclosure of infonnation contained on this sheet Is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 (SI ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services | ARCADIS Team Task 2.2: Compliance Monitoring ARCADIS will provide compliance monitors in the following subject matter areas: • Biological Resources • Cultural Resources • Native American Monitors • Paleontological Resources • Marine Biological Resources Biological Resources Nesting Bird Surveys: ARCADIS has retained Balk Biological, a woman-owned small business, to provide biological resources support. As required by mitigation measure BIO-5, if project activities are scheduled to occur during the nesting bird season (January 15th to September 15th), a survey to identify nesting birds in the vicinity of the impact areas will be carried out no eariier than three days prior to ground-disturt3ing activity in the area. The disturbance area plus an approximately 100-foot buffer will be surveyed for passerine species, and the disturisance area plus an approximately 500-foot buffer will be sun/eyed for raptors. If active nests are identified, an appropriate buffer of avoidance will be placed around the location until the young have fledged, in order to avoid impacts to nesting birds per the federal Migratory Bird Treaty Act A brief memo- style report will be prepared summarizing the results of each survey. This task assumes an approximately once-weekly survey for approximately 39 weeks over the course of the project. Assumptions: 1. Nesting bird surveys to occur between January 15 to September 15 in areas where nesting birds may occur. 2. Monitoring will occur approximately once-weekly in areas of active construction for approximately 39 weeks. 3. Each survey including survey memo assumed to require 7 hours of effort. Biological Monitoring: As required by mitigation measure BIO-4, biological monitoring of clearing, grading, and other construction activities in the vicinity of biological open space areas will be perfonned in order to ensure minimization of impacts to biological resources. The biological monitor will have the authority to temporarily halt construction work if needed to coordinate with the City and Wildlife agencies to determine adequate implementation of biological resource protection measures, and the biological monitor will report violations of these measures to the ARCADIS Compliance Manager who will inform the City and as required by mitigation measure BIO-4 infomn USFWS within 24 hours. This task assumes a maximum of 14 days of biological monitoring will be needed over the course of the Project. Use or disclosure of Information contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document. S7 (2 ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services j ARCADIS Team Assumptions: 1. Biological open space areas requiring monitoring limited to area south of Palomar Airport Road adjacent to Avenida Encinas, 2. Biological monitoring limited to 14 days total over course of Project. 3. Previously cleared areas such as the Lift Station site do not require biological monitoring. Cultural Resources ARCADIS has successfully utilized cross-trained archaeological and paleontological monitors to monitor for both resources. This can be accomplished when a monitor with experience working with both resources is available and supported by senior archaeologists and paleontologists in the event of the discovery of archaeological or paleontological resources that require further evaluation as to their significance. ARCADIS proposes to utilize the services of Paleo Solutions to provide cross-trained archaeological and paleontological monitors resulting in significant cost savings rather than staffing this monitoring effort with separate archaeological and paleontological monitors. Archaeological Monitoring: As required by mitigation measure GUL-1, ARCADIS provide a qualified archaeologist to monitor ground-disturtDing activities and will be on-site during all grading, trenching, and other ground disturbing activities. As described above, the archaeological monitor will be cross-trained to monitor for paleontological resources in addition to archaeological resources. Our Senior Archaeologist will lead this task and oversee the archaeological monitor and coordinate with the Native American monitor, Compliance Manager, and Construction Foreman. Cultural resources training will be delivered to construction crews as part of the WEAR training during tailboard safety meetings at the beginning of the work day to educate personnel on the importance of complying with federal and state regulations, to avoid project delays and additional mitigation. Archaeological monitoring will be coordinated with other project environmental monitoring using common methods such as demarcation of Environmentally Sensitive Areas. For purposes of cost estimating we have assumed a full-time cross-trained archaeologist on-site throughout the construction trenching phase of approximately 48 weeks. After the construction Contractor is chosen and a detailed construction schedule is available, this level of effort will be reevaluated and where construction does not result in ground disturbing activities archaeological monitoring will not be necessary and cost would be reduced accordingly. Following completion ofthe project, we will prepare a summary report ofthe cultural resources monitoring task. Please note that this scope of wori< does not include costs associated with artifact evaluation, data recovery, artifact processing, reporting, or curation of significant finds. Use or disclosure of infonnation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 ^ ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services | ARCADIS Team Should field data analysis and recovery be required, ARCADIS will provide the City with an estimated cost to complete the wort< for review and approval prior to conducting the work. Assumptions: 1. One cross-trained archaeological-paleontological monitor will be sufficient to monitor trenching and other ground disturiDing activities. 2. Trenching and other ground disturbing activities will occur over 48 weeks. 3. Construction trenching will occur 5 days per week, 8 hours per day. 4. This scope of wort< does not include costs associated v\flth artifact evaluation, data recovery, artifact processing, reporting, or curation of significant finds. Native American Monitoring: As required by mitigation measure CUL-2, ARCADIS will subcontract with a qualified Native American monitor to monitor ground-disturbing activities and will be on-site during all grading, trenching, and other ground disturtDing activities. The ARCADIS cultural resources team understands the City's commitment to working with Native American groups and other descendant communities that have an interest in the treatment of cultural resources that might be affected by the project Similariy as with the archaeological monitoring task, after the construction Contractor is chosen and a detailed construction schedule is available, this level of effort will be reevaluated and where construction does not result in ground disturbing activities Native American monitoring will not be necessary and cost would be reduced accordingly. Assumptions: 1. Native American monitoring will occur during trenching and other ground disturbing activities over and estimated 48 weeks, 5 days per week, 8 hours per day. Paleontological Resources Paleontological Monitoring: As required by mitigation measure CUL-3, our subcontractor, Paleo Solutions, a woman-owned small business, will provide a cross-trained archaeologist/paleontologist during grading/excavation activities that impact paleontologically sensitive deposits. Based on the project excavation information provided in the MND/MMRP and the proposed project schedule (dated June 11, 2012), the cost proposal assumes approximately 48 weeks of paleontological monitoring will be required. This number may increase or decrease as the project schedule is updated. Monitors will only be on-site when warranted by excavation activities and site conditions. Use or disclosure of infonnation contained on this sheet Is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 ^ ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance Monitoring Services | ARCADIS Team Monitoring will be conducted on a full-time basis during excavation into undisturbed, older Pleistocene sediments. An initial geologic map review indicates that older Pleistocene sediments underiie the majority of the Project alignment However, the MND/MMRP states that the Pleistocene sediments mapped within the alignment are covered by a thin layer of fill material that was placed in conjunction with grading for the railway, buildings, commercial structures, and roads. Any excavations determined to be entirely located in fill material will not be monitored. Young alluvial deposits surrounding the Agua Hedionda Lagoon channel, which will be impacted during bridge construction, will not require monitoring due to the low paleontological sensitivity ofthe deposits. The MND/MMRP calls out two locations where Project conditions necessitate horizontal drilling and micro-tunneling in lieu of open cut trenches. Paleontological monitoring will not be conducted during those activities since any recovered fossils would lack critical locational and contextual information and are therefore considered non-significant. Monitoring will be increased or decreased based on the actual deposits being impacted during construction activities and the nature of excavation (eg., trenching vs. drilling). Final Monitoring Compliance Report: A final monitoring report will be prepared for compliance documentation. The report will include the paleontological context for the genera! site area, site-specific geology and stratigraphy, summary of the field techniques, results of monitoring and analyses, and conclusions including future mitigation recommendations. Field forms will be attached to the report as an appendix. The report will meet or exceed all local, state, and federal standards and will be provided in electronic (PDF) format. For the purposes ofthe cost proposal, a negative findings report is assumed. Assumptions: 1. One cross-trained archaeological-paleontological monitor WAII be sufficient to monitor trenching and other ground disturbing activities. 2. Trenching and other ground disturiaing activities occur over 48 weeks. 3. Construction trenching will occur 5 days per week, 8 hours per day. 4. This scope of work does not include fossil recovery, identification, or curation. Marine Biology Per the requirements ofthe USACE 404 Permit and the California Coastal Commission CDP, ARCADIS has retained Tierra Data, a woman-owned small business, to conduct pre- constmction eelgrass and Caulerpa surveys to document baseline conditions in Agua Hedionda Lagoon. Pre-construction surveys will be conducted using experienced divers that will cover 100 percent ofthe area of potential effect. Surveys will focus on accurately identifying the presence/absence of eelgrass, including density and area coverage consistent with the newly adopted California Eelgrass Mitigation Policy (CEMP) Use or disclosure of infonnation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 'bo ^ ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance 10 Monitoring Sen/ices | ARCADIS Team promulgated by the California Department of Fish and Wildlife (CDFW) and the National Marine Fisheries Service (NMFS). Survey methodologies will be appropriate for a pre- construction survey in an area known to have eelgrass. In addition to eelgrass, field surveys will concurrently identify the presence/absence of Caulerpa. Deliverables will include detailed maps of the survey area, a description of activities, CDFW Caulerpa survey logs, and a report on eelgrass presence/absence within the identified project area. Included in this scope of work is a follow-up post-constnjction eelgrass and Caulpera survey per the requirements ofthe 404 Permit and CDP. The results of the surveys will be documented in a report suitable for submittal to the USACE, CCC, and California Department of Fish and Wildlife. The draft reports will be submitted to City for review prior to being made final. Assumptions: 1. Eelgrass and Caulerpa dive survey will be conducted concurrently. 2. One round of response to comments on draft report is included. ARCADIS Team ARCADIS proposes a project team with significant experience in the project area including the planning, permitting, and construction of utility projects. Our team is seasoned and experienced in the performance of mitigation monitoring and will wori< as an integrated team with the City and construction Contractor to achieve compliance with project mitigation measures and conditions of approval. ARCADIS team members have been selected specifically to deliver the required technical expertise, and practical construction and field compliance expertise required to develop real-time solutions, and keep the project progressing in an often changing and dynamic environment. Resumes for our key team members are provided in Appendix B. Below are biographical summaries of staff serving in key positions on the project team. Compliance Manager - Robert Prohaska, PMP, has 30 years of experience leading and managing environmental projects and programs encompassing the full range of environmental permitting, planning, and construction compliance, including special expertise on California utility projects. Mr. Prohaska will be the primary project contact for the ARCADIS compliance monitoring team. In this role he will be responsible for the ARCADIS team's technical performance, schedule and budget, quality of services delivered, health and safety, invoicing, and adherence to contract terms and conditions. He is certified by the Project Management Institute as a Project Management Professional and utilizes universally-recognized project management best practices to guide the execution of the projects he manages. He is adept at managing change and working with diverse stakeholders to innovatively develop solutions and build consensus, and maintain focus on the goals ofthe project. He has previous experience Use or disclosure of infonnation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance 11 Monitoring Services | ARCADIS Team worthing for San Diego North County coastal Cities including the City of Carisbad, City of Encinitas, and Solana Beach. Biological Resources Monitoring - Michelle Balk has over thirteen years of experience as a biological consultant in southern California. Project experience includes general and sensitive floral and wildlife surveys, vegetation mapping, wetlands delineation and pennitting, mitigation monitoring, construction compliance monitoring, and environmental document preparation. Ms. Balk's fimi, Balk Biological, Inc., headquartered in Encinitas, California, has been providing its expertise to a variety of public- and private-sector clients since 2006. The company is experienced in and regulariy performs a full complement of biological consulting services, including: vegetation community mapping, general and special-status floral and wildlife surveys, wetlands delineation and permitting, habitat restoration, environmental compliance monitoring during construction, biological resource impact assessment, and biological document preparation. Cultural Resources and Native American Monitoring - Brian Glenn has worked on numerous cultural resources management projects in compliance with Section 106 ofthe National Historic Preservation Act (NHPA) and the California Environmental Quality Act (CEQA). Mr. Glenn will serve as the Cultural Resources Principal Investigator and coordinate and direct the archaeological monitoring. He will also coordinate the monitoring conducted by the Native American monitor. His recent experience includes cultural resources surveys and studies for clients such as the Los Angeles Department of Water and Power, Southern California Edison (SCE), Metropolitan Transit Authority, and La Plaza Foundation La Placita Cemetery excavation. His responsibilities have included archaeological monitoring and the preparation of technical reports (assessment, evaluation and mitigation), cultural resources management plans and EIS/EIR sections. Paleontological Monitoring - Geraldlne Aron will serve as the Lead Paleontologist and direct the wori< ofthe paleontological monitoring team. She has more than 15 years professional experience working in the Paleontological Management field and is responsible for maintaining the overall scientific integrity and oversight projects. This includes all aspects of Paleo Solutions company management, field paleontology and geology including: survey, salvage, measuring and drafting stratigraphic sections, geological mapping, sample collection, and paleontological and archaeological monitoring, budget oversight, managing, training, and coordinating the tasks of field staff, developing cliental relationships, fossil preparation, and the production of technical reports. Ms. Aron has produced hundreds of technical reports, which include paleontological assessments, DEIR's, EIR/EIS', Paleontological Mitigation and Monitoring Plans, document reviews, and survey reports for CEQA/NEPA compliance. She meets the professional standards as a paleontological Principal Investigator for the Society of Vertebrate Paleontologist, BLM, USPS, San Diego County, San Bernardino County, Orange County, San Luis Obispo, and other agencies that retain a professional list for qualified paleontologist. Use or disclosure of infonnation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document 0091418808 7;^ ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance 12 Monitoring Services | ARCADIS Team Marine Biology - Brent Mardian's career in the marine sciences began a research diver investigating offshore oil platform decommissioning alternatives in 1995. Mr. Mardian has been surveying and sampling the marine environment continuously ever since. His geographic experience extends south to Antarctica, East to Puerto Rico, and west to Guam. An expert in marine field data collection, Mr. Mardian is adept at translating the field data collection 'what" and 'whys', into meaningful and representative results for projects either seeking or responding to a permit. This includes supporting 401/404 Clean Water Act (CWA) efforts, implementing Waste Discharge Requirements (WDR), developing Sampling and Analysis Plans (SAP) for dredged material ('Greenbook' or ITM/UTM), marine biological surveys (Magnuson-Stevens Act Compliance, California Eelgrass Mitigation Plan [CEMP], or California Caulerpa Control Protocol [CCCP]), CEQA/NEPA planning support, and conducting Total Maximum Daily Load (TMDL) special studies. Use or disclosure of Infonnation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document. (XI ARCADIS Agua Hedionda Sewer Lift Station and Force Main Environmental Compliance 13 Monitoring Services | Assumptions and Exclusions Cost Estimate ARCADIS' cost estimate to provide the services described in this proposal is presented below. Work will be billed on a time and materials basis with a not to exceed limit of $325,881 that will not be exceeded without prior authorization from the City, Project pricing detail is provided on the attached spreadsheet. Use or disclosure of infonnation contained on this sheet is subject to the restriction and disclaimer located on the table of contents of this document 3f (a ARCADIS Appendix A MMRP Responsibilities 0) O) (0 Q_ (0 0) o o to c: o Q. (A a> Qi: CO E Q. k. 3 (A (0 (A E 0) c o "5 gj c 0) E > «> OJ E OQ. CO O) c o O) c Q QJ TD to (5 O o CO G < O < o ^ ^ 3 o « ^ S I ^ « S o o « fc o iS a g 2 P (0 ^ ^ ^ ^ Q.O a. w UJ c o ^ o 3 o « c c . c 5 0) O O « O JS Q. Ui 2 c _ c o ,_ t B ^ s .S CD (0 0}= Q. 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(J UJ ^ W 5 LOCATION MAP BUENA VISTA LIFT STATION VISTA METER STATION EXISTING LAGOON BRIDGE VC11B EXISTING AGUA HEDIONDA LIFTSTATION DESALINATION PLANT FUTURE POWER PLANT LEGEND: •w VC11B-VC15 VC1-VC11A ENCINA WATER POLLUTION CONTROL FACILITY PROJECT NAME AGUA HEDIONDA LIFT STATION & VISTA/CARLSBAD INTERCEPTOR SEWER REACHES VCllB THROUGH VC15 PROJECT NUMBER 3492, 3886 & 3949 EXHIBIT 5 PROJECT AGREEMENT FOR CONSTRUCTION OF THE AGUA HEDIONDA SEWER LIFT STATION AND VISTA/CARLSBAD INTERCEPTOR SEWER, REACHES VCllB - VC15 THIS AGREEMENT for the Construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer, Reaches VCl IB - VC 15 ("Agreement") is made and entered into as ofthe 10th day of February , 20 15, by and between the City of Vista, a charter city ("Vista"), and the City of Carlsbad, a charter city ("Carlsbad"), collectively, ("the Parties"). RECITALS WHEREAS, on February 26, 2002, the Parties entered into an agreement for the ownership, operation and maintenance of the Vista/Carlsbad Interceptor Sewer ("Ownership Agreement"), the terms of which are incorporated herein by this reference; and WHEREAS, on June 11, 2013, the Parties amended the Ownership Agreement and developed the Amended and Restated Agreement for ownership, operation, and maintenance of the Vista/Carlsbad Interceptor Sewer; and WHEREAS, on May 20, 2014, the Parties executed the first amendment and agreed to extend the term ofthe Amended and Restated Ownership Agreement; and WHEREAS, the existing Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer was built in the early 1960*s and does not have adequate capacity to convey the sewage flows projected for this basin; and WHEREAS, the Sewer Master Plans for the Parties includes a recommendation that the Agua Hedionda Sewer Lift Station and reaches VCl IB - VCl 5 of the Vista/Carlsbad Interceptor Sewer be replaced with larger pipes and pumps to increase the capacity necessary to convey future sewer flows; and WHEREAS, on October 13, 2011, the Parties entered into an agreement for the Planning and Design Phase Services for the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer, Reaches VCl IB - VC 15; and WHEREAS, Carlsbad has completed the design for the replacement of the Agua Hedionda Sewer Lift Station and reaches VCl 1B - VC15 of the Vista/Carlsbad Interceptor Sewer; and WHEREAS, the Parties are entering into this Agreement in order to establish the responsibilities of each Party during construction, revise their respective share ofthe design and construction phase costs, and revise the cost accounting procedures and payment schedule ofthe October 13, 2011 agreement. NOW THEREFORE, THE PARTIES HERETO AGREE TO THE FOLLOWING: 00017681 V 6 - I - 1/8/2015 15^ SECTION). PROJECT DESCRIPTION The Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer, Reaches VCl IB - VC 15 (the "Project") is a sewer project that will replace existing facilities to increase the capacity and improve the reliability within the lower portion of the Vista/Carlsbad Interceptor Sewer System, The Project begins at the north shore of the Agua Hedionda Lagoon and extends southerly a distance of approximately 2.3-miles to the Encina Water Pollution Control Facility, as shown on Exhibit "A". The major elements of the Project are defmed in the September 2008 Preliminary Design Report and are summarized as follows: A. Replace the existing wood trestle sewer bridge across Agua Hedionda Lagoon with a new steel support bridge that will clear span the existing channel, being approximately 140-feet in length. The new sewer support bridge will be designed to allow lightweight maintenance vehicles to pass over the bridge to allow for access to the interceptor sewer north of the lagoon, which will allow for improved inspection and maintenance capabilities as well as improved emergency response. In addition, the Project will replace approximately 1400 linear feet of existing 42-inch sewer pipe with a 54-inch diameter pipe. The Project will relocate a portion of an existing 12-inch high pressure gas line that conflicts with the proposed northerly abutment of the new bridge. The existing sewer support bridge will be removed as part of the Project. B. Construct a new sewer lift station at a location adjacent to the existing lift station on the south shore of Agua Hedionda Lagoon. The lift station will be capable of conveying the ultimate peak wet weather sewage flows for the basin, identified as 33 mgd in the current master plans. In addition to the structure containing the pumps and motors, the lift station will also have standby pumps, an emergency generator, a grinder vault, electrical control building and odor control facilities. The facility will be designed to comply with local and resource agency permit requirements, including the Califomia Coastal Commission. The existing lift station facility will be removed at the completion of the Project. C. Construct a new force main and gravity sewer that will operate in parallel to the existing 42-inch diameter gravity sewer, providing increased system reliability. The new force main will be approximately 4000 linear feet of 30-inch diameter pipe and will be manufactured from High Density Polyethylene (HDPE), The force main will discharge into a new 54-inch diameter gravity sewer that will be constructed in Avenida Encinas, being approximately 7000- feet in length, extending from Cannon Road to the Encina Water Pollution Control Facility. These pipelines will be installed using several different methods of construction, including open-trench excavation with shoring, horizontal directional drilling (HDD) and microtunneling. D. Carlsbad has acquired all necessary easements and permits required to construct and maintain the facility. Easements were secured from the North County Transit District, Cabrillo Power (a.k.a., NRG Energy) and San Diego Gas & Electric. Carlsbad has completed the environmental compliance document in compliance with CEQA requirements and the Carisbad City Council has adopted the document. E. The Project will remove the existing emergency over flow basin since Vista has purchased and constructed emergency standby diesel driven pumps ("Standby Pumps") that will 0OOI7681V.6 -2- I/8/20I5 F)4 automatically tum on in the event the existing lift station experiences a failure. The Standby Pumps can bypass the flows around the existing lift station. Vista will remove the Standby Pumps and reinstall them at other Vista properties following the completion of the Project and demonstration of its successful operation. F. Carlsbad has hired Arcadis and MJS Consulting to be the Construction Manager for the Project and will also perform the materials testing, special inspection, geotechnical testing, and coordination of environmental monitoring. G. Exhibit B is a Project Budget and cost allocation jointly prepared by the Parties. The total cost of the Project, and the amount of the construction contract award, shall not exceed the Project Budget without the written consent of both Parties. SECTION 2. JOINT RESPONSIBILITIES OF THE PARTIES A. The Parties shall designate an Owner's Representative for the Project. Each Parties' Owner's Representative shall be the sole contact and spokesperson with respect to all matter's requiring the Parties approval or authorization. B. Owner's Representatives shall not provide direction or instructions directly to the Contractor. The Constmction Manager shall provide all direction and instmctions to the Contractor after both ofthe Owner's Representatives mutually agree. If each Parties' Owner's Representative cannot agree on an issue, then Section 21 of the Ownership Agreement shall be followed as a procedure for dispute resolution. C. Owner's Representatives shall attend a regular Owner's Meeting with the Constmction Manager. The Ovraer's meetings shall be held bi-weekly at a minimum. If an Owner's Representative does not attend the Owner's Meeting a minimum of 80% of the meetings to date, then the applicable Party shall replace the Owner's Representative. A representative of the Encina Wastewater Authority, which operates and maintains the existing lift station, may also attend the Owner's Meeting so that all coordination issues are resolved before any instmctions are given to the Contractor. D. Neither Party shall charge the other for staff services except as provided in Section 5 of this Agreement. SECTION 3. RESPONSIBILITIES QF CARLSBAD A. Carlsbad shall be the Lead Agency for the Project and will be responsible for the environmental compliance, bidding and administration of construction activities, including fiscal management for the Project. As part of its construction administration duties, Carisbad shall require its contractor to comply with all Resource Agency requirements, including the stormwater management and other requirements of the State Water Resources Control Board. B. As Lead Agency, Carisbad shall have sole authority to approve, bid, and award contracts in accordance with this Agreement, Carlsbad's policies and applicable law, subject to the provisions of Section 6. Carisbad's purchasing policies shall apply to implementation and 00017681 V 6 - 3 - 1/8/2015 performance ofthe construction contract, professional services agreements and any other activity under this Agreement. C. Carlsbad shall bid the Project in accordance with State Revolving Funds (SRF) requirements. Carlsbad shall provide Vista with all supporting documents to fulfill Vista's obligations with its SRF loan. D. Carlsbad shall pay $239,503 to Vista for the installation cost of Standby Pumps to be placed at the Agua Hedionda Lift Station (AHLS) by Vista to provide emergency pumping capability until the new lift station is constructed and operational. The payment covers Carlsbad's share of design and constmction costs in accordance with Carlsbad's ownership allocation of 30.9%. Furthermore, Carisbad agrees to pay Vista a lump sum of $131,544 in consideration for Vista's provision of the Standby Pumps. Vista shall invoice Carisbad upon execution of this Agreement and Carisbad shall pay invoice within thirty (30) days of receipt of invoice from Vista. E. Change Orders. The Parties shall jointly approve all change orders necessary to constmct the Project. Change orders for the Project may be initiated by Vista or Carisbad, but shall not be issued to the contractor unless approved by both Parties. Each Party shall respond to Change Order requests within two (2) working days and shall not unreasonably delay, condition, or deny the approval of any change order. Change order costs will be shared by the Parties in proportion to their capacity ownership defined herein to the extent that the change order is necessary and beneficial for both Parties. Vista shall participate with Carlsbad in the negotiation of price and/or time extensions related to any change order with the Project contractor (i) at Carisbad's request, (ii) at Vista's option in the case of change orders requested by Vista, or (iii) in the case of a change order that may reasonably be anticipated to affect the overall Project Budget. Carlsbad Initiated Change Order. In those instances where Carlsbad requests a change order, Carlsbad shall submit a written request for changes to Vista for Vista's written approval. Such changes, once approved by Vista, shall be paid for in accordance with the ownership allocation, provided the Carlsbad initiated changes are necessary to complete the Project. If the Carisbad initiated change order is solely for Carisbad's benefit, then Carlsbad shall be solely responsible for the cost of the change order, including but not limited to any increased costs resulting from the implementation ofthe change order. Vista Initiated Change Order. In those instances where Vista requests a change order. Vista shall submit a written request for changes to Carlsbad for Carlsbad's written approval. Such changes once approved by Carlsbad, shall be paid for in accordance with the ownership allocation, provided the Vista initiated changes are necessary to complete the Project. If the Vista initiated change order is solely for Vista's benefit, then Vista shall be solely responsible for the cost of the change order, including but not limited to any increased costs resulting from the implementation of the change order. SECTION 4. RESPONSIBILITIES OF VISTA A. Vista shall provide a payment of $2,112,654 to Carlsbad within thirty (30) days of the approval to advertise to receive bids for construction from Carlsbad City Council. The payment covers Vista's share of unpaid design costs (planning, investigations, design, environmental) to 00017681 V 6 1/8/2015 date plus 5% of Vista's share of the construction and constmction management costs as detailed on Exhibit "B" ("Vista Payment"). Further, Vista shall make monthly progress payments for completed work within thirty (30) days of receipt of invoice from Carlsbad. The Parties agree that the spreadsheet attached hereto as Exhibit "B" is a fair estimate of the costs subject to modifications through the award of contract or change orders. Vista shall review final accounting and make payment to Carlsbad within thirty (30) days of final reimbursement request. The Vista Payment shall be credited toward the final monthly progress payments and the final reimbursement request. B. Vista agrees to perform the clearing of vegetation from the Agua Hedionda Lift Station site and said clearing shall be performed outside the nesting season of protected species as defined in the Project CEQA document and permits. The cost of the clearing operation is estimated to be $97,300 and Carlsbad agrees to pay Vista 30.9% of the actual cost in accordance with Carlsbad's ownership allocation, SECTION 5. ALLOCATION OF COSTS A. Allocation of Project costs are defined in the Ownership Agreement and shown in Exhibit "B". Construction cost shares varies by reach and shall be allocated to each Party in accordance with Exhibit "B". All other Project costs shall be shared as follows: 65% Vista, 35% Carlsbad. Constmction costs shall include the constmction contract and necessary and mutually approved change orders. B. Vista shall pay its allocated portion of the cost of all contracted construction support services, such as, but not limited to, constmction management and inspection, support from the design engineer, constmction materials testing, special inspection, geotechnical testing, paleontological and environmental monitoring. Vista also agrees to pay Carlsbad a 5% mark-up on all contracted constmction support services in consideration for Constmction Administration and Management services otherwise provided by Carlsbad. The payment for contracted construction support services shall be understood to cover all project management, contract administration, engineering staff design review, and supplemental constmction inspection, accounting and any other Project-related services that are performed by Carlsbad staff, SECTION 6. COST ACCOUNTING A. Carlsbad shall be responsible for the administration and accounting of all expenditures related to the construction of the Project. The Parties agree that Vista will pay its allocated portion of in actual and estimated costs shown in Exhibit "B" to Carlsbad per Section 4. Final accounting of the costs will be made after the Notice of Completion is filed. Carlsbad will issue a final invoice, or reimburse excess remaining funds, to Vista at that time. B. Vista is funding the Project through a loan from the State Revolving Fund ("SRF"). Vista has provided Carlsbad with all bidding, awarding, and constmction management requirements set forth in the SRF funding agreements (Exhibit "C"). Carisbad's administration of the Project shall comply fully with the SRF requirements, and Carlsbad shall provide Vista with all documentation necessary to comply with its obligations under those requirements. 000I768I V.6 - 5 - 1/8/2015 SECTION 7. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. SECTION 7. EXHIBITS All documents referenced as Exhibits in this Agreement are incorporated herein by reference. SECTION 9. ENTIRE AGREEMENT This Agreement, together with any other written document referred to, embody the entire agreement and understanding between the Parties relating to the subject matter hereof In case of confiict between this Agreement and the Ownership Agreement, the terms of the Ownership Agreement shall prevail. IN WITNESS WHEREOF, each Party hereto has pursuant to resolution duly passed and adopted by its respective goveming body approved this Agreement and caused it to be executed and be effective on the date first above written. CITY OF VISTA, a chartered municipal corporation. By: JUDY ftrKvER, Mayor ATTEST: MARCI KILIAN, City Clerk By APPROVED AS TO FORM: DAROLD PIEPER, City Attomey CITY OF CARLSBAD, a chartered municipal corporation Mayor ATTEST: BARBARA ENGLEBON, City Clerk APPROVED AS T0 FORM: CELIA A. BREWER, City Attomey BY: APPROVED D aro Id Pieper 1054 010815 0001768! V,6 -6-1/8/2015 EXHIBIT A - LOCATION MAP LAGOON BRIDGi VC11B AQUA HEDIONDA LIFTSTATION VC12 LEGEND: —— VC11B-VC15 VC1-VC11A END PROJECT AT ENCINA WATER POLLUTION CONTROL FACILITY^ PROJECT NAME AGUA HEDIONDA LIFT STATION & VISTA/CARLSBAD INTECEPTOR SEWER REACHES VC11B THROUGH VC15 PROJECT NUMBER CP3492. 3886 & 3949 EXHIBIT DRAm BY: SCOTT EVAMS: CAHLSBAD UVUTCS DEPT. 1/13/11 O \UWV£S 0£P/W7MENT\0tSnW 0MSWM\SMf7H\W7M-f5 LOCAVON UAP.OUK! 6"^ CQ CO X X UJ < o o -I < (0 o o 00 h- UJ O Q OQ H- O Ui "J O Q. QU> •o n iii O > Hi J3 e 13 O) IL 8 + (0 ~ o ? « Q 5 w " ^ 8 n (0 Hi c o ll c o U = Si. u to S o .£ Hi 0) cn ll > P 0) 3 S P o ^ s s MT ** c m" m 180.353.! d E8 t YME 3 O 1 180.353.! .476, < < w CM" t/> < <0 5 ion ION 4 Type sign struct! SECTI Cost Unpaid De o se % of Con OTAL 3 )7,670 ,082 CN o o )7,670 ba ,082 CD CJ)_ o s|je o" M o UMMARY ta Share 588,050 .531,210 607.070 10,000) 78,500 o CO oo ^" o> (D UMMARY Visi co" <^ 05 CM <^ co" PO CO v» CO d 0) a > uction ction anagem Credit ark Up OJECT onstr P -•—• c o: Cost onstr nstr on mei O LP Cost rec Coi Pave O TA a. Pave LO O LO c o O EXHIBIT C Clean Water CITY OF VISTA AND CALIFORNIA STATE WATER RESOURCES CONTROL BOARD Water Boards INSTALLMENT SALE AGREEMENT PUBLICLY OWNED TREATMENT WORKS (POTW) CONSTRUCTION FINANCING VlSTA/CARLSBAD INTERCEPTOR AND AGUA HEDIONDA PUMP STATION REPLACEMENT PROJECT CLEAN WATER STATE REVOLVING FUND PROJECT NO. C-06-7847-110 AGREEMENT NO. 13-843-550 AMOUNT: $21,991,869 START DATE: MAY 2, 2014 END TERM DATE: AUGUST 1. 2036 DATED AS OF MAY 2, 2014 THIS PAGE INTENTIONALLY LEFT BLANK THIS PAGE INTENTIONALLY LEFT BLANK City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 TABLE OF CONTENTS ARTICLE I DEFINITIONS 1 1.1 Definitions 1 1.2 Exhibits and Appendices Incorporated 4 ARTICLE li REPRESENTATIONS, WARRANTIES, AND COMMITMENTS 4 2.1 General Recipient Commitments 4 2.2 Authorization and Validity 4 2.3 Violations 4 2.4 Litigation 4 2.5 Solvency 5 2.6 Legal Status and Eligibility 5 2.7 Financial Statements 5 2.8 Completion of Project 5 2.9 Project Completion Report 5 2.10 Award of Construction Contracts 5 2.11 Notice 6 2.12 Findings and Challenge 7 2.13 Project Access 7 2.14 Project Completion; Initiation of Operations 7 2.15 Continuous Use of Project; Lease or Disposal of Project 8 2.16 Reports 8 2.17 Federal Disadvantaged Business Enterprise (DBE) Reporting 8 2.18 Records 8 2.19 Audit 9 2.20 Signage 9 ARTICLE III FINANCING PROVISIONS 10 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 3.1 Purchase and Sale of Project 10 3.2 Amounts Payable by the Recipient 10 3.3 Obligation Absolute 12 3.4 No Obligation of the State 12 3.5 Disbursement of Project Funds; Availability of Funds 12 3.6 Withholding of Disbursements 13 3.7 Pledge; Rates, Fees and Charges; Additional Debt 13 3.8 Financial Management System and Standards 14 3.9 Accounting and Auditing Standards 15 3.10 Federal or State Assistance 15 ARTICLE IV TAX COVENANTS 15 4.1 Purpose 15 4.2 Tax Covenant 15 4.3 Govemmental Unit 15 4.4 Financing of a Capital Project 15 4.5 Ownership and Operation of Project 15 4.6 Temporary Period 16 4.7 Working Capital 16 4.8 Expenditure of Proceeds 16 4.9 Private Use and Private Payments 16 4.10 No Sale, Lease or Private Operation ofthe Project 17 4.11 No Disproportionate or Unrelated Use 17 4.12 Management and Service Contracts 17 4.13 No Disposition of Financed Property 19 4.14 Useful Life of Project 19 4.15 Installment Payments 19 4.16 No Other Replacement Proceeds 19 4.17 No Sinking or Pledged Fund 19 City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 4.18 Reserve Amount 20 4.19 Reimbursement Resolution 20 4.20 Reimbursement Expenditures 20 4.21 Change in Use ofthe Project 20 4.22 Rebate Obligations 20 4.23 No Federal Guarantee 20 4.24 No Notices or Inquiries From IRS 21 4.25 Amendments 21 4.26 Application 21 4.27 Reasonable Expectations 21 ARTICLE V MISCELLANEOUS PROVISIONS 21 5.1 Covenants 21 5.2 Assignability 22 5.3 State Reviews and Indemnification 22 5.4 Termination; Immediate Repayment; Interest 22 5.5 Income Restrictions 23 5.6 Prevailing Wages 23 5.7 Timeliness 23 5.8 Goveming Law 23 5.9 Amendment 23 5.10 Bonding 23 5.11 Compliance with Law, Regulations, etc 23 5.12 Conflict of Interest 24 5.13 Damages for Breach Affecting Tax Exempt Status or Federal Compliance 24 5.14 Disputes 24 5.15 Independent Actor 25 5.16 Non-Discrimination Clause 25 5.17 No Third Party Rights 25 iii City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 5.18 Operation and Maintenance; Insurance 25 5.19 Permits, Subcontracting, and Remedies 26 5.20 Recipient's Responsibility for Work 26 5.21 Related Litigation 26 5.22 Rights in Data 26 5.23 State Water Board Action; Costs and Attorney Fees. 26 5.24 Unenforceable Provision 26 5.25 Useful Life 27 5.26 Venue 27 5.27 Waiver and Rights of the State Water Board 27 EXHIBIT A - SCOPE OF WORK & INCORPORATED DOCUMENTS EXHIBIT A-FBA -FINAL BUDGET APPROVAL EXHIBIT B - PROJECT FINANCING AMOUNT EXHIBIT C - CWSRF PAYMENT SCHEDULE EXHIBIT D - SPECIAL CONDITIONS EXHIBIT E - FEDERAL CONDITIONS & CROSS-CUTTERS EXHIBIT F - SCHEDULE OF MATERIAL OBLIGATIONS EXHIBIT G - DAVIS-BACON REQUIREMENTS EXHIBIT H - MATERIAL LITIGATION, INVESTIGATIONS. AUDITS IV ID1 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 This Installment Sale Agreement, including all exhibits and attachments hereto, (Agreement) is dated as of the date set forth on the first page of this Agreement, by and between the State Water Resources Control Board, an administrative and regulatory agency ofthe State of Califonnia (State Water Board), and the local government entity identified on the first page of this Agreement, duly organized and existing under the laws of the State of Califomia (Recipient): WITNESSETH: WHEREAS the United States of America, pursuant to Title VI of the federal Water Pollution Control Act as such has been and may be amended from time to time (Clean Water Act), requires each State to establish a water pollution control revolving fund to be administered by an instrumentality ofthe State as a condition to receipt of capitalization grants under the Clean Water Act; and WHEREAS the State of California (State) has established a Clean Water State Revolving Fund (CWSRF) pursuant to Chapter 6.5 of Division 7 of the Califomia Water Code (State Act) to be used for purposes of the Clean Water Act; and WHEREAS the State Water Board is the state agency authorized to administer the CWSRF and provide financial assistance from the CWSRF to recipients for the construction of eligible projects, as provided in the State Act; and WHEREAS the State Water Board determines Project eligibility for financial assistance from the CWSRF, pursuant to the Clean Water Act and the State Act, determines a reasonable schedule for financing and construction of projects, ensures compliance with the Clean Water Act, and establishes the terms and conditions of an applicable financing agreement; and WHEREAS the Recipient has applied to the State Water Board for financial assistance from the CWSRF, for the purpose of financing or refinancing the Project described below, and the State Water Board has reviewed and approved said application; and WHEREAS the Recipient has or will incur costs incurred in connection with, the planning, design, acquisition, construction, and installation ofthe Project described in Exhibit A and Exhibit A-FBA hereto; and WHEREAS on the basis of the Recipient's application and the representations and warranties set forth herein, the State Water Board proposes to assist in financing the costs of the Project and/or to refund outstanding bonds, notes, or other debt obligations of the Recipient, if any, issued to finance the Project, and the Recipient desires to participate as a recipient of financial assistance from the CWSRF and evidence its obligation to pay Installment Payments, which obligation will be secured by Net Revenues, as defined herein, upon the terms and conditions set forth in this Agreement, all pursuant to the Clean Water Act and the State Act; NOW, THEREFORE, in consideration ofthe premises and ofthe mutual representations, covenants and agreements herein set forth, the State Water Board and the Recipient, each binding itself, its successors and assigns, do mutually promise, covenant and agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. Unless otherwise specified, each capitalized term used in this Agreement (including the Exhibits hereto) has the following meaning: "Additional Payments" means the Additional Payments described in Section 3.2(c) of this Agreement, City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 "Agreement" means this Installment Sale Agreement, dated as ofthe date set forth on the first page hereof, by and between the State Water Board and the Recipient, including all exhibits and attachments hereto. "Allowance" means an amount based on a percentage of the accepted bid for an eligible project to help defray the planning, design, and construction engineering and administration costs ofthe Project. "Authorized Representative" means the duly appointed representative of the Recipient. For all authorized representatives, a certified original of the authorizing resolution that designates the authorized representative, by title, must accompany the first disbursement request, and any other documents or requests required or allowed under this Agreement. "Bank" means the California Infrastructure and Economic Development Bank. "Bonds" means any series of bonds issued by the Bank all or a portion of the proceeds of wrtiich may be applied to fund the Project in whole or in part or that are secured in whole or in part by Installment Payments paid hereunder. "Code" means the Internal Revenue Code of 1986, as amended, and any successor provisions and the regulations ofthe U.S. Department of the Treasury promulgated thereunder. "Completion of Construction" means the date, as determined by the Division after consultation with the Recipient, that the woric of building and erection of the Project is substantially complete. "CWSRF" means the Clean Water State Revolving Fund. "Division" means the Division of Financial Assistance of the State Water Board or any other segment of the State Water Board authorized to administer the CWSRF. "Enterprise Fund" means the enterprise fund ofthe Recipient in which Revenues are deposited. "Fiscal Year" means the period of twelve (12) months terminating on June 30 of any year, or any other annual period hereafter selected and designated by the Recipient as its Fiscal Year in accordance with applicable law. "Force Account" means the use of the Recipient's own employees or equipment for construction of the Project. "Initiation of Construction" means the date that notice to proceed with work is issued for the Project, or, if notice to proceed Is not required, the date of commencement of building and erection of the Project. "Installment Payments" means Installment Payments due and payable by the Recipient to the State Water Board under this Agreement, the amounts of which are set forth as Exhibit C hereto. "Listed Event" means, so long as the Recipient has outstanding any Material Obligation subject to Rule 15c2-12, any ofthe events required to be reported pursuant to Rule 15c2-12(b)(5). "Material Event" means any of the following events: (a) revenue shortfalls; (b) unscheduled draws on the reserve fund or the Enterprise Fund; (c) substitution of insurers, or their failure to perform; (d) adverse water quality findings by the Regional Water Quality Control Board; or (e) litigation related to the Revenues or to the Project, whether pending or anticipated. "Material Obligations" means all senior, parity, and subordinate obligations ofthe Recipient payable from Revenues as identified as of the date of this Agreement in Exhibit F and such additional obligations as may hereafter be issued in accordance with the provisions of such obligations and this Agreement. City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 "Net Revenues" means, for any Fiscal Year, so long as there may be any pre-existing and outstanding Material Obligation other than the Obligation, the definition of the term as defined under such Material Obligation, and thereafter, all Revenues received by the Recipient less the Operations and Maintenance Costs for such Fiscal Year. "Obligation" means the obligation of the Recipient to make Installment Payments and Additional Payments as provided herein, as evidenced by the execution of this Agreement, proceeds of such obligations being used to fund the Project as specified in the Project Description attached hereto as Exhibit A and Exhibit A-FBA and in the documents thereby incorporated by reference. "Operations and Maintenance Costs" means, so long as outstanding Material Obligations other than the Obligation are outstanding, the definition of such term as defined therein, and thereafter, the reasonable and necessary costs paid or incurred by the Recipient for maintaining and operating the System, determined in accordance with generally accepted accounting principles, including all reasonable expenses of management and repair and all other expenses necessary to maintain and preserve the System in good repair and working order, and including all reasonable and necessary administrative costs of the Recipient that are charged directly or apportioned to the operation of the System, such as salaries and wages of employees, overhead, taxes (if any), the cost of permits, licenses, and charges to operate the System and Insurance premiums; but excluding, in all cases depreciation, replacement, and obsolescence charges or reserves therefor and amortization of intangibles. "Policy" means the State Water Board's policy for implementing the CWSRF program, as amended from time to time. "Project" means the Project financed by this Agreement as described in Exhibit A and in the documents incorporated by reference herein. "Project Completion" means the date, as detennined by the Division after consultation with the Recipient, that operation ofthe Project is initiated or is capable of being initiated, whichever comes first. "Project Costs" means the incurred costs of the Recipient which are eligible for financial assistance from the CWSRF under the federal Clean Water Act, which are allowable costs as defined under the Policy, and which are reasonable, necessary and allocable by the Recipient to the Project under generally accepted accounting principles, plus capitalized interest. "Project Funds" means funds disbursed by the State Water Board to the Recipient for purposes of this Agreement. "Recipient" means the recipient of Project Funds, as identified on the front page of this Agreement. "Revenues" means, for each Fiscal Year, all gross income and revenue received or receivable by the Recipient from the ownership or operation of the System, detennined in accordance with generally accepted accounting principles, including all rates, fees, and charges (including connection fees and charges) as received by the Recipient for the services of the System, and ail other income and revenue howsoever derived by the Recipient from the ownership or operation of the System or arising from the System, including all income from the deposit or investment of any money in the Enterprise Fund or any rate stabilization fund ofthe Recipient or held on the Recipient's behalf, and any refundable deposits made to establish credit, and advances or contributions in aid of constmction. "Rule 15c2-12(b)(5)" means Rule 15c2-12(b)(5) promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended. "State" means State of Califomia. ^0 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 "State Water Board" means the State Water Resources Control Board, an administrative and regulatory agency ofthe State of Califomia. "System" means for the purposes of a wastewater project, all wastewater collection, transport, treatment, storage, and disposal facilities, including land and easements thereof, owned by the Recipient, including the Project, and all other properties, structures, or works hereafter acquired and constructed by the Recipient and determined to be a part of the System, together with all additions, betterments, extensions, or improvements to such facilities, properties, structures, or worics, or any part thereof hereafter acquired and constructed. For the purposes of a water recycling project, "System" means all wastewater, water recycling, and/or potable water collection, transport, treatment, storage, and/or disposal facilities, including land and easements thereof, owned by the Recipient, including the Project, and all other properties, structures or worics hereafter acquired and constructed by the Recipient and determined to be a part of the System, together with all additions, betterments, extensions or improvements to such facilities, properties, structures, or worics, or any part thereof hereafter acquired and constructed. 1.2 Exhibits and Appendices Incorporated. All exhibits and appendices to this Agreement, including any amendments and supplements hereto, are hereby incorporated herein and made a part of this Agreement, ARTICLE II REPRESENTATIONS, WARRANTIES, AND COMMITMENTS The Recipient represents and wan-ants the following as of the date set forth on the first page hereof and continuing thereafter for the term of the Agreement. 2.1 General Recipient Commitments. The Recipient accepts and agrees to comply with all tenns, 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 Authorization and Validity. The execution and delivery of this Agreement, including alt incorporated documents, has been duly authorized. This Agreement constitutes a valid and binding obligation of the Recipient, enforceable in accordance with its terms, except as such enforcement may be limited by law. 2.3 Violations. The execution, delivery, and performance by Recipient of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the date set forth on the first page hereof, or result in any breach or default under any contract, obligation, indenture, or other instnjment to which Recipient is a party or by which Recipient is bound as of the date set forth on the first page hereof 2.4 Litigation. There are no pending or, to Recipient's knowledge, threatened actions, claims, investigations, suits, or proceedings before any govemmental authority, court, or administrative agency which affect the financial condition or operations of the System and/or the Project other than as described in Exhibit H hereto. City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 2.5 Solvency. None of the transactions contemplated by this Agreement will be or have been made with an actual intent to hinder, delay, or defraud any present or future creditors of Recipient. As of the date set forth on the first page hereof, Recipient is solvent and will nol be rendered insolvent by the transactions contemplated by this Agreement. Recipient is able lo pay its debts as they become due. 2.6 Legal Status and Eligibility. Recipient is duly organized and existing and in good standing under the laws of the State of California, and will remain so during the term of this Agreement. Recipient shall at all times maintain its cun-ent legal existence and preserve and keep in full force and effect its legal rights and authority. Recipient shall maintain compliance with provisions of state law that restrict state funding to non-compliant entities. 2.7 Financial Statements. The financial statements of Recipient previously delivered to the State Water Board as of the date(s) set forth in such financial statements; (a) are materially complete and con-ect; (b) present fairly the financial condition of the Recipient; and (c) have been prepared in accordance with generally accepted accounting principles or other accounting standards reasonably approved by the State Water Board. Since the date(s) of such financial statements, there has been no material adverse change in the financial condition of the Recipient, nor have any assets or properties reflected on such financial statements been sold, transferred, assigned, mortgaged, pledged or encumbered, except as previously disclosed in writing by Recipient and approved in writing by the State Water Board. 2.8 Com pletion of Project. The Recipient agrees to expeditiously proceed with and complete constnjction ofthe Project in substantial accordance with Exhibit A and Exhibit A-FBA. 2.9 Project Completion Report. The Recipient shall submit a Project Completion Report to the Division with a copy to the appropriate Regional Water Quality Control Board on or before the due date established by the Division and the Recipient at the time of final project inspection. The Project Completion Report must address the following: (a) describe the Project, (b) describe the water quality problem the Project sought to address, (c) discuss the Project's likelihood of successfully addressing that water quality problem in the future, and (d) summarize compliance with environmental conditions, if applicable. Where the Recipient fails to submit a timely Project Completion Report, the State Water Board may stop processing pending or future applications for new financial assistance, withhold disbursements under this Agreement or other agreements, and begin administrative proceedings. 2.10 Award of Construction Contracts. (a) The Recipient agrees to award the prime construction contract no later than the date specified in Exhibit A. (b) The Recipient agrees to promptly notify the Division in writing both of the award of the prime constnjction contract for the Project and of Initiation of Constmction of the Project. The Recipient agrees to make all reasonable efforts to complete construction in substantial City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 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 Constmction date no less than 90 days prior to the Completion of Construction date. The Division will not unreasonably deny such a timely request, but the Division will deny requests received after this time. 2.11 Notice. The Recipient agrees to notify the Division in writing within 5 days of the occun-ence of the following: (a) Principal and interest payment delinquencies on this CWSRF Obligation; (b) Non payment related defaults, if material; (c) Unscheduled draws on debt service reserves reflecting financial difficulties; (d) Unscheduled draws on credit enhancements, if any, reflecting financial difficulties; (e) Substitution of credit or liquidity providers, if any, or their failure to perform; (f) Adverse tax opinions, the issuance by the Internal Revenue Service or proposed or final determinations of taxability. Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices of determinations with respect to the tax status of any tax-exempt bonds; (g) Rating changes on tax-exempt bonds, if any; (h) Bankruptcy, insolvency, receivership or similar event of the Recipient; (I) Actions taken in anticipation of filing Chapter 9, as required under state law; G) Any litigation pending or threatened against Recipient regarding its wastewater capacity or its continued existence, circulation of a petition to challenge rates, consideration of dissolution, or disincorporation, or any other material threat to the Recipient's Revenues; (k) Other Material Events or Listed Events; (I) Change of ownership of the Project or change of management or service contract for operation of the Project; or (m) Negotiations regarding proposed parity obligations. The Recipient agrees to notify the Division promptly ofthe following: (a) Any substantial change in scope of the Project. The Recipient agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the Division and the Division has given written approval for such change; (b) Cessation of all major constmction work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more; (c) 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; City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 (d) Discovery of any potential archeological or historical resource. Should a potential archeological or historical resource be discovered during construction ofthe Project, the Recipient agrees that all work in the area ofthe find will cease until a qualified archeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Division has detennined what actions should be taken to protect and presen/e the resource. The Recipient agrees to implement appropriate actions as directed by the Division; (e) 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 constmction ofthe Project, the Recipient agrees to promptly notify the Division. This notification is in addition to the Recipient's obligations under the federal Endangered Species Act; (f) Any monitoring, demonstration, or other implementation activities such that the State Water Board and/or Regional Water Quality Control Board staff may observe and document such activities; (g) 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 to both the Division and USEPA Region IX. The contacts for USEPA Region IX are Juanita Licata at Licata.juanita@epa.gov (415) 972-3450 and Josh Amaris at Amaris.josh@epa.gov (415) 972-3597; or (h) Completion of Construction ofthe Project, and actual Project Completion. 2.12 Findings and Challenge Upon consideration of a voter initiative to reduce Revenues, the Recipient shall make a finding regarding the effect of such a reduction on the Recipient's ability to satisfy its Obligation under this Agreement and to operate and maintain the Project for its useful life. The Recipient agrees to make its findings available to the public and to request, if necessary, the authorization ofthe Recipient's decision-maker or decision- maker body to file litigation to challenge any such initiative that it finds will render it unable to satisfy either the Obligation or the covenant to operate and maintain, or both. The Recipient shall diligently pursue and bear any and all costs related to such challenge. The Recipient shall notify and regulariy update the State Water Board regarding any such challenge. 2.13 Project Access. The Recipient agrees to ensure that the State Water Board, the Governor of the State, the United States Environmental Protecfion Agency, the Office of Inspector General, any member of Congress, the President ofthe United States, or any authorized representative ofthe foregoing, will have safe and suitable access to the Project site at all reasonable times during Project construction and thereafter for the term of the Obligation. The Recipient acknowledges that, except for a subset of archeological records, the Project records and locations are public records, including all ofthe submissions accompanying the application, all of the documents incorporated by Exhibit A, and all reports, disbursement requests, and supporting documentation submitted hereunder. 2.14 Project Completion; Initiation of Operations. Upon Completion of Construction of the Project, the Recipient agrees to expeditiously initiate Project operations. City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 2.15 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 Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all or any portion of all remaining funds covered by this Agreement together with accmed interest and any penalty assessments which may be due. 2.16 Reports. (a) Quarteriy Reports. The Recipient agrees to expeditiously provide status reports no less frequently than quarteriy, starting with the execution of this Agreement. At a minimum the reports will contain the following information: • a summary of progress to date including a description of progress since the last report, percent constmction complete, percent contractor invoiced, and percent schedule elapsed; • a description of compliance with environmental requirements; • 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, and status of previous problem resolutions. (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 the Division, including but not limited to material necessary or appropriate for evaluation of the CWSRF Program or to fulfill any reporting requirements ofthe federal government. 2.17 Federal Disadvantaged Business Enterprise (DBE) Reporting. The Recipient agrees to report DBE utilization to the Division on the DBE Utilization Report, State Water Board Forni DBE UR334. The Recipient must submit such reports to the Division semiannually within ten (10) calendar days following April 1 and October 1 until such time as the "Notice of Completion" is issued. The Recipient agrees to comply with 40 CFR § 33.301. 2.18 Records. (a) Without limitation ofthe requirement to maintain Project accounts in accordance with generally accepted accounting principles, the Recipient agrees to: (1) Establish an official flle 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; City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 (4) Establish an accounting system which will accurately depict final total costs ofthe 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 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. Indirect Force Account costs are not eligible for funding. (b) The Recipient shall be required to maintain separate books, records and other material relative to the Project. The Recipient shall also be required to retain such books, records, and other material for itself and for each contractor or subcontractor who performed work on this project for a minimum of thirty-six (36) years after Project Completion. 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 United States Environmental Protection Agency (USEPA), the Office of Inspector General, the Internal Revenue Service, the Governor, or any authorized representatives ofthe aforementioned, and shall allow interviews during nonnal 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. The provisions of this section shall survive the discharge of the Recipient's Obligation hereunder and shall survive the tenn of this Agreement. 2.19 Audit (a) The Division, at its option, may call for an audit of financial information relative to the Project, where the Division detennines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of federal requirements. Where such an audit is called for, the audit shall be performed by a certified public accountant independent of the Recipient and at the cost of the Recipient. The audit shall be In the form required by the Division. (b) Audit disallowances will be returned to the State Water Board. 2.20 Signage. The Recipient shall place a sign at least four feet tall by eight feet wide made of % Inch thick exterior grade plywood or other approved material in a prominent location on the Project site and shall maintain the sign in good condition for the duration of the construction period. The sign shall include the following color logos (available fi-om the Division) and the following disclosure statement; Clean Water ^N^^ oBV^ Water Boards ^r^rr^^^^^<'^ City of Vista Agreement No.: 13-843-550 Project No.; C-06-7847-110 "Funding for this project has been provided in full or in part by the Clean Water State Revolving Fund through an agreement with the State Water Resources Control Board. Califomia's Clean Water State Revolving Fund is capitalized through a variety of funding sources, including grants from the United States Environmental Protection Agency and state bond proceeds." The Project sign may include another agency's required promotional information so long as the above logos and disclosure statement are equally prominent on the sign. The sign shall be prepared in a professional manner. The Recipient shall 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 ofthe 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 Purchase and Sale of Project. The Recipient hereby sells to the State Water Board and the State Water Board hereby purchases firom the Recipient the Project. Simultaneously therewith, the Recipient hereby purchases from the State Water Board, and the State Water Board hereby sells to the Recipient, the Project in accordance with the provisions of this Agreement. All right, title, and interest in the Project shall immediately vest in the Recipient on the date of execution and delivery of this Agreement without further action on the part of the Recipient or the State Water Board. 3.2 Amounts Payable by the Recipient. (a) Installment Payments. Repayment ofthe Project Funds, together with all interest accruing thereon, shall be repaid in annual installments commencing on the date that is one (1) year after Completion of Constmction, and shall be fully amortized by the date specified in Exhibit B. The repayment amount is based on a standard fully amortized assistance amount with equal annual repayments. The remaining balance is the previous balance, plus the disbursements, plus the accmed interest on both, less the repayment. Repayment calculations will be made beginning one (1) year after Completion of Constmction and shall be fully amortized not later than the date specified in Exhibit B. Exhibit C is a payment schedule based on the provisions of this article and an estimated disbursement schedule. Actual repayments will be based on actual disbursements. Upon Completion of Construction and submission of necessary reports by the Recipient, the Division will prepare an appropriate payment schedule and supply the same to the Recipient. The Division may amend this schedule as necessary to accurately reflect amounts due under this Agreement. The Division will prepare any necessary amendments to the payment schedule and send them to the Recipient. The Recipient agrees to make each installment payment on or before the due date therefor. A ten (10) day grace period will be allowed, afterwhich time a penalty in the amount of costs incun-ed to the State Water Board will be assessed for late payment. These costs may include, but are not limited to, lost interest eamings, staff time, bond debt service default penalties, if 10 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 any, and other costs incurred. Penalties assessed will not change the principal balance of the financing Agreement. Such penalties will be treated as a separate receivable in addition to the annual payment due. For purposes of penalty assessment, repayment will be deemed to have been made if repayment is deposited in the U.S. Mail within the grace period with postage prepaid and properiy addressed. Any penalties assessed will not be added to the assistance amount balance, but will be treated as a separate account and obligation ofthe Recipient. The interest penalty will be assessed from the repayment due date. The Recipient as a whole is obligated to make all payments required by this Agreement to the State Water Board, 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 of all amounts which become due under this Agreement and which are received fi-om 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 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, Attached as Exhibit C is a Payment Schedule based on the provisions of this section and an estimated disbursement schedule. This schedule will be revised based on actual disbursements following Completion of Construction. Each Installment Payment shall be paid by check and in lawful money of the United States of America. The Recipient agrees that it shall not be entitled to interest earned on undisbursed project funds. Upon execution of this Agreement, the State Water Board shall encumber an amount equal to the Obligation. The Recipient hereby agrees to pay Installment Payments and Additional Payments from Net Revenues and/or other amounts legally available to the Recipient therefor. Interest on any funds disbursed to the Recipient shall begin to accrue as of the date of each disbursement. (b) 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. (c) Additional Payments. In addition to the Installment Payments required to be made by the Recipient, the Recipient shall also pay to the State Water Board 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 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 incun-ed by the State 11 City of Vista Agreement No.: 13-843-550 Project No.; C-06-7847-110 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. (d) The Recipient may without penalty prepay all or any portion of the outstanding principal amount of the Obligation provided that the Recipient shall also pay at the time of such prepayment all accrued interest on the principal amount prepaid through the date of prepayment. 3.3 Obligation Absolute. The obligation of the Recipient to make the Installment Payments and other payments required to be made by it under this Agreement, fi-om Net Revenues and/or other amounts legally available to the Recipient therefor, is absolute and unconditional, and until such time as the Installment Payments and Additional Payments have been paid in full, the Recipient shall not discontinue or suspend any Installment Payments or other payments required to be made by it hereunder when due, 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, and such Installment Payments and other payments shall not be subject to reduction whether by offset or otherwise and shall not be conditional upon the performance or nonperformance by any party of any agreement for any cause whatsoever, 3.4 No Obligation of the State. Any obligation ofthe State Water Board herein contained shall not be an obligation, debt, or liability ofthe State and any such obligation shall be payable solely out of the moneys in the CWSRF made available pursuant to this Agreement. 3.5 Disbursement of Project Funds; Availability of Funds. (a) Except as may be othenwise provided in this Agreement, disbursement of Project Funds v/il! 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 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 budget amounts referenced in Exhibit B. (Note that this Agreement will be amended to incorporate Final Budget Approval.) (3) Additional Project Funds will be promptly disbursed to the Recipient upon receipt of Disbursement Request Form 260. or any amendment thereto, duly completed and executed by the Recipient for incun-ed costs consistent with this Agreement, along with receipt of status reports due under Section 2.16 above. (4) The Recipient agrees that it will not request disbursement for any Project Cost until such cost has been incun-ed and is cun-ently 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 30 days of receipt. Any interest earned on Project Funds shall be reported to the State Water Board and may be required to be returned to the State Water Board or deducted from future disbursements. 12 City of Vista Agreement No.: 13-843-550 Project No,: C-06-7847-110 (6) [reserved] (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 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 govemment to appropriate funds necessary for disbursement of Project Funds, the State Water Board shall not be obligated to make any disbursements to the Recipient under this Agreement This provision shall be constmed as a condition precedent to the obligation of the State Water Board to make any disbursements under this Agreement, Nothing in this Agreement shall be constmed 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 defered because sufficient funds are unavailable, it is the intention of the State Water Board that such disbursement will be made to the Recipient when sufficient funds do become available, but this intention is not binding. 3.6 Withholding of Disbursements and Material Violations. (a) The State Water Board 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 temi, provision, condition, or commitment of this Agreement; (2) The Recipient fails to maintain reasonable progress toward completion ofthe Project; or (3) The Recipient fails to comply with section 51D3 of the Water Code, where applicable. (b) For the purposes of this Agreement, 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 securing this Agreement; (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 used for securing this Agreement; or (4) Any other action or lack of action that may be construed as a material violation or threat thereof 3.7 Pledge; Rates, Fees and Charges; Additional Debt. (a) Establishment of Enterprise Fund and Reserve Fund. In order to can^ out its System Obligations, including the Obligation, the Recipient agrees and covenants that it shall establish and maintain or shall have established and maintained the Enterprise Fund. All Revenues received shall be deposited when and as received in trust in the Enterprise Fund, This requirement applies to Recipients that are public agencies. To the extent required in Exhibit D of this Agreement, the Recipient agrees to establish and maintain a reserve fund. 13 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 (b) Pledge of Net Revenues, Enterprise Fund, and Reserve Fund. The Obligation hereunder shall be secured by a lien on and pledge ofthe Enterprise Fund, Net Revenues, and any Reserve Fund specified in Exhibit D in priority as specified in Exhibit F. The Recipient hereby pledges and grants such lien on and pledge of the Enterprise Fund, Net Revenues, and any Resen/e Fund specified in Exhibit D to secure the Obligation, including payment of Installment Payments and Additional Payments hereunder. The Net Revenues in the Enterprise Fund shall be subject to the lien of such pledge without any physical delivery thereof or fljrther act, and the lien of such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or othenwise against the Recipient. (c) Application and Purpose of the Enterprise Fund. Subject to the provisions of any outstanding Material Obligations, money on deposit in the Enterprise Fund shall be applied and used first, to pay Operations and Maintenance Costs, and thereafter, all amounts due and payable with respect to the Material Obligations. After making all payments hereinabove required to be made in each Fiscal Year, the Recipient may expend in such Fiscal Year any remaining money in the Enterprise Fund for any lawful purpose of the Recipient, including payment of subordinate debt. This requirement applies to Recipients that are public agencies. (d) Rates, Fees and Charges. The Recipient agrees, to the extent permitted by law, to fix, prescribe and collect rates, fees and charges for the System during each Fiscal Year which are reasonable, fair and nondiscriminatory and which will be at least sufficient to yield during each Fiscal Year Net Revenues equal to the debt service on Material Obligations, including the Obligation, for such Fiscal Year, plus any coverage ratio specified in Exhibit D of this Agreement, The Recipient may make adjustments from time to time in such fees and charges and may make such classification thereof as it deems necessary, but shall not reduce the rates, fees and charges then in effect unless the Net Revenues from such reduced rates, fees and charges will at all times be sufficient to meet the requirements of this section. (e) Additional Debt Test. The Recipient's future debt may not be senior to CWSRF debt. The Recipient's future debt may be on parity with the CWSRF debt if the following conditions are met (1) The Recipient's net revenues pledged to pay all senior debts relying on the pledged revenue source are at least 1.2 times the highest year's debt service and net revenues pledged to pay all debts are at least 1.1 times the highest year's debt service; and (2) One of the following conditions is met (A) The Recipient's proposed additional parity obligation is rated "A." or higher, by at least two nationally recognized rating agencies; or (B) The Recipient is a disadvantaged community and the Division determines that it would be economically burdensome for the agency to obtain nationally recognized ratings for its parity debt; or (C) The Recipient is a disadvantaged community and the Division determines that requiring the proposed additional obligations to be subordinate to the Recipient's Obligations hereunder will unduly restrict the Recipients from obtaining future system debt necessary for water quality improvements. 3.8 Financial Management System and Standards. The Recipient agrees to comply with federal standards for financial management systems. The Recipient agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to pennit preparation of reports required by the federal government and tracking of Project funds to a level of 14 City of Vista Agreement No.: 13-843-550 Project No,: C-06-7847-110 expenditure adequate to establish that such funds have not been used in violation of federal or state law or the terms of this Agreement. To the extent applicable, the Recipient agrees to be bound by, and to comply with, the provisions and requirements of the federal Single Audit Act of 1984, Office of Management and Budget (OMB) Circular No. A-133, and updates or revisions, thereto. (Pub. L. 98-502.) 3.9 Accounting and Auditing Standards. The Recipient will maintain separate Project accounts in accordance with generally accepted accounting principles. The Recipient shall comply with "Standards for Audit of Governmental Organizations, Programs, Activities and Functions" promulgated by the U.S. General Accounting Office. (40 CFR § 35.3135, subd. (I).) 3.10 Federal or State Assistance. If federal or state funding for Project Costs is made available to the Recipient from sources other than the CWSRF, the Recipient may retain such funding up to an amount which equals the Recipient's local share of Project Costs. To the extent allowed by requirements of other funding sources, any funding received in excess of the Recipient's local share, not to exceed the total amount of the CWSRF financing assistance, shall be remitted to the State Water Board to be applied to Installment Payments due hereunder. ARTICLE IV TAX COVENANTS 4.1 Purpose. The purpose of this Article IV is to establish the reasonable expectations of the Recipient regarding the Project and the Project Funds, and is intended to be and may be relied upon for purposes of Sections 103,141 and 148 ofthe Code and as a certification described in Section 1.148-2(b)(2) ofthe Treasury Regulations. This Article IV sets forth certain facts, estimates and circumstances which fonn the basis for the Recipient's expectation that neither the Project nor the Project Funds will be used in a manner that would cause the Obligation to be classified as "arbitrage bonds" under Section 148 ofthe Code or "private activity bonds" under Section 141 ofthe Code. 4.2 Tax Covenant. The Recipient agrees that it will not take or authorize any action or permit any action within its reasonable control to be taken, or fail to take any action within its reasonable control, with respect to the Project which would result in the loss of the exclusion of interest on the Bonds from gross income for federal income tax purposes under Section 103 ofthe Code. 4.3 Governmental Unit. The Recipient is a state or local govemmental unit as defined in Section 1.103-1 of the Treasury Regulations or an instmmentality thereof (a "Govemmental Unit") and is not the federal govemment or any agency or instrumentality thereof 4.4 Financing of a Capital Project. The Recipient will use the Project Funds to finance costs it has incurred or will incur for the constmction, reconstmction, installation or acquisition ofthe Project. Such costs have not previously been financed with the proceeds of any other issue of tax-exempt obligations. 4.5 Ownership and Operation of Project. The Recipient exclusively owns and, except as provided in Section 4.12 hereof, operates the Project. 15 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 4.6 Temporary Period. The Recipient reasonably expects that at least eighty-five percent (85%) of the Project Funds will be allocated to expenditures for the Project within three (3) years of the eariier of the effective date of this Agreement or the date the Bonds are issued ("Applicable Date"), The Recipient has incun-ed, or reasonably expects that it will incur within six (6) months ofthe Applicable Date, a substantial binding obligation (i,e., not subject to contingencies within the control of the Recipient or a related party) to a third party to expend at least five percent (5%) of the Project Funds on the costs of the Project. The completion of acquisition, constmction, improvement and equipping of the Project and the allocation of Project Funds to expenditures for the Project will proceed with due diligence. 4.7 Working Capital. No operational expenditures of the Recipient or any related entity are being, have been or will be financed or refinanced with Project Funds. 4.8 Expenditure of Proceeds. Project Funds shall be used exclusively for the following purposes: (1) architectural, engineering, surveying, soil testing, and similar costs paid with respect to the Project incurred prior to the commencement of construction and in an aggregate amount not exceeding twenty percent (20%) of the Project Funds, (ii) capital expenditures relating to the Project originally paid by the Recipient on or after the dale hereof, (iii) interest on the Obligation through the later of three (3) years after the Applicable Date or one (1) year after the Project is placed in service, and (iv) initial operating expenses directly associated with the Project in the aggregate amount not more than flve percent (5%) of the Project Funds. 4.9 Private Use and Private Payments. None of the Project Funds or the Project are, have been or will be used in the aggregate for any activities that constitute a Private Use (as defined below). None of the principal of or interest with respect to the Installment Payments will be secured by any interest in property (whether or not the Project) used for a Private Use or in payments in respect of property used for a Private Use, or will be derived fi-om payments in respect of property used for a Private Use. "Private Use" means any activity that constitutes a trade or business that is carried on by persons or entities, other than a Govemmental Unit. The leasing of the Project or the access by or the use of the Project by a person or entity other than a Governmental Unit on a basis other than as a member of the general public shall constitute a Private Use. Use by or on behalf of the State of Califomia or any of its agencies, instrumentalities or subdivisions or by any loc^l govemmental unit and use as a member ofthe general public will be disregarded in determining whether a Private Use exists. Use under an arrangement that conveys priority rights or other preferential benefits is generally not use on the same basis as the general public. Arrangements providing for use that is available to the general public at no charge or on the basts of rates that are generally applicable and uniformly applied do not convey priority rights or other preferential benefits. For this purpose, rates may be treated as generally applicable and uniformly applied even if (i) different rates apply to different classes of users, such as volume purchasers, if the differences in rates are customary and reasonable; or (ii) a specially negotiated rate arrangement is entered into, but only if the user is prohibited by federal law from paying the generally applicable rates, and the rates established are as comparable as reasonably possible to the generally applicable rates. An arrangement that does not otherwise convey priority rights or other preferential benefits is not treated, nevertheless, as general public use if the tenn of the use under the an-angement, including all renewal options, is greater than 200 days. For this purpose, a right of first refusal to renew use under the an-angement is not treated as a renewal option if (i) the compensation for the use under the arrangement is redetermined at generally applicable, fair market value rates that are in effect at the time of renewal; and (ii) the use of the financed property under the same or similar arrangements is predominantly by natural persons who are not engaged in a trade or business. 16 •00^3 ell f City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 4.10 No Sate, Lease or Private Operation ofthe Project. The Project will not be sold or othenvise disposed of, in whole or in part, to any person who is not a Governmental Unit prior to the flnal maturity date of the Obligation. The Project will not be leased to any person or entity that is not a Governmental Unit prior to the final maturity date of the Obligation. The Recipient will not enter any contract or an-angement or cause or permit any contract or arrangement to be entered (to the extent of its reasonable control) with persons or entities that are not Govemmental Units if that contract or arrangement would confer on such persons or entities any right to use the Project on a basis different from the right of members ofthe general public. The contracts or arrangements contemplated by the preceding sentence include but are not limited to management contracts, take or pay contracts or put or pay contracts, and capacity guarantee contracts. 4.11 No Disproportionate or Unrelated Use. None of the Project Funds or the Project are, have been, or will be used for a Private Use that is unrelated or disproportionate to the govemmental use of the Project Funds. 4.12 Management and Service Contracts. With respect to management and service contracts, the determination of whether a particular use constitutes Private Use shall be detennined on the basis of applying Section 1.141-3(b)(4) ofthe Treasury Regulations, Revenue Procedure 97-13, and other applicable rules and regulations. As ofthe date hereof, none of the Project Funds or the Project are being used to provide property subject to contracts or other an-angements with persons or entities engaged in a trade or business (other than Govemmental Units) that involve the management of property or the provision of services that do not comply with the standards ofthe Treasury Regulations and Revenue Procedure 97-13. Except to the extent the Recipient has received an opinion of counsel expert in the issuance of state and local government bonds the interest on which is excluded fl^om gross income under Section 103 of the Code ("Nationally-Recognized Bond Counsel") and satisfactory to the Stale Water Board and the Bank to the contrary, the Recipient will not enter into any management or service contracts with any person or entity that is not a Governmental Unit for services to be provided with respect to the Project except with respect to contracts where the following requirements are complied with: (i) the compensafion is reasonable for the sen/ices rendered; (ii) the compensation is not based, in whole or in part, on a share of net profits from the operation of the Project; (iii) not more than twenty percent (20%) of the vofing power ofthe Recipient in the aggregate may be vested in the sen/ice provider and its directors, officers, shareholders, and employees and vice versa; (iv) any overiapping board members between the Recipient and the service provider must not include the chief execufive officer or executive director of either, or their respective goveming bodies; and (v); (a) At least ninety-five percent (95%) of the compensafion for services for each annual period during the term of the contract is based on a periodic fixed fee which is a stated dollar amount for services rendered for a specified period of fime. The stated dollar amount may automatically increase according to a specified objective external standard that is not linked to the output or efficiency of a facility, e.g., the Consumer Price Index and similar extemal indices that track increases in prices in an area or increases in revenues or costs in an industry are objective extemal standards, A fee shall not fail to qualify as a periodic fixed fee as a result of a one (1) fime incentive award during the term of the contract under which compensation automatically increases when a gross revenue or expense target (but not both) is reached if that award is a single stated dollar amount. The tenn of the contract, including alt renewal options, must not exceed the lesser of eighty percent (80%) of the reasonably expected useful life of the financed property and fifteen (15) years (twenty (20) years for "public utility property" within the meaning of Section 168(i)(10) of the Code); 17 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 (b) At least eighty percent (80%) of the compensation for services for each annual period during the term of the contract is based on a periodic fixed fee. The term of the contract, including all renewal options, must not exceed the lesser of eighty percent (80%) of the reasonably expected useful life ofthe financed property and ten (10) years. A one (1) time incentive award during the term of the contract similar to the award described in subsection (a) above is permitted under this option as welt; (c) At least fifty percent (50%) of the compensafion for services for each annual period during the term of the contract is based on a periodic fixed fee or all of the compensation for sen/ices is based on a capitation fee or combination of a periodic flxed fee and a capitafion fee, A capitafion fee is a fixed periodic amount for each person for whom the service provider or the Recipient assumes the responsibility to provide all needed sen/ices for a specified period so long as the quantity and type of services actually provided to covered persons vary substantially; e.g., a fixed dollar amount payable per month to a service provider for each member of a plan for whom the provider agrees to provide all needed services for a specified period. A capitation fee may include a variable component of up to twenty percent (20%) ofthe total capitation fee designed to protect the service provider against risks such as catastrophic loss. The term of the contract, including all renewal options, must not exceed five (5) years. The contract must be terminable by the Recipient on reasonable notice without penalty or cause, at the end of the third year of the contract; (d) All of the compensation for services is based on a per-unit fee or a combination of a per-unit fee and a periodic fee. A per-unit fee is defined to mean a fee based on a unit of service provided as specified in the contract or otherwise specifically determined by an independent third party, such as the administrator of the program or the Recipient; e.g., a stated dollar amount for each specified procedure performed, car pariced or passenger mile is a per-unit fee. The tenn ofthe contract, including all renewal options, must not exceed three (3) years. The contract must be terminable by the Recipient on reasonable notice, without penalty or cause, at the end of the second year of the contract term; or (e) All of the compensation for services is based on a percentage of fees charged or a combination of a per-unit fee and a percentage of revenue or expense fee. During the start up period, hov^rever, compensation may be based on a percentage of gross revenues, adjusted gross revenues, or expenses of a facility. The term ofthe contract, including renewal options, must not exceed two (2) years. The contract must be terminable by the Recipient on reasonable notice without penalty or cause, at the end of the first year. This type of contract is permissible only with respect to contracts under which the service provider primarily provides services to third parties, and management contracts involving a facility during an initial start-up period for which there have been insufficient operations to establish a reasonable estimate ofthe amount of the annual gross revenues and expenses {e.g., a contract for general management services for the first year of the operations). If the compensation terms of a management or sen/ice contract are materially revised, the requirements for compensation terms must be retested as of the date of the material revision and the management or service contract is treated as one that was newly entered into as of the date ofthe material revision. A renewal option, for purposes of the foregoing, is defined to mean a provision under which the service provider has a legally enforceable right to renew the contract. Thus, for example, a provision under which a contract is automatically renewed for one (1) year periods absent cancellation by either party is not a renewal option, even if it is expected to be renewed. A cancellation penalty is defined to include a limitation on the Recipient's ability to compete with the service provider, a requirement that the Recipient purchase equipment, goods, or services from the service provider, and a requirement that the Recipient pay liquidated damages for 18 qj? City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 cancellation of the contract; in comparison, a requirement effective on cancellation that the Recipient reimburse the service provider for ordinary and necessary expenses or a restilction against the Recipient hiring key personnel of the service provider is generally not a contract termination penalty. Another contract between the service provider and the Recipient, such as an Installment Sate Agreement or guarantee by the service provider, is treated as creating a contract termination penalty if that contract contains tenns that are not customary or arm's length, or that could operate to prevent the Recipient from terminating the contract (e.g., provisions under which Uie contract terminates if the management contract is tenninated or that places substantial restrictions on the selection of a substitute service provider). The sen/ice provider must not have any role or relationship with the Recipient, that, in effect, substantially limits the Recipient's ability to exercise its rights, including cancellation rights, under the contract, based on all the facts and circumstances. 4.13 No Disposition of Financed Property. The Recipient does not expect to sell or othenwise dispose of any portion of the Project, in whole or in part, prior to the final maturity date of the Obligation, 4.14 Useful Life of Project. The economic useful life of the Project, commencing at Project Completion, is at least equal to the term of this Agreement, as set forth on Exhibit B hereto. 4.15 Installment Payments. Installment Payments generally are expected to be derived from assessments, taxes, fees, charges or other cun-ent revenues of the Recipient in each year, and such curent revenues are expected lo equal or exceed the Installment Payments during each payment period. Any amounts accumulated in a sinking fund or bona fide debt service fund to pay Installment Payments (whether or nol deposited to a fund or account established by the Recipient) will be disbursed to pay Installment Payments within thirteen months ofthe initial dale of accumulation or deposit. Any such fund used for the payment of Installment Payments will be depleted once a year except for a reasonable can70ver amount not exceeding eamings on such fund or one-twelfth of the Installment Payments in either case for the immediately preceding year. 4.16 No Other Replacement Proceeds. The Recipient will not use any of the Project Funds to replace or substitute other funds of the Recipient that were othenvise to be used lo finance the Project or which are or will be used lo acquire securities, obligations or other investment property reasonably expected to produce a yield that is materially higher than the yield on the Bonds. 4.17 No Sinking or Pledged Fund. Except as set forth in Section 4.18 below, the Recipient wilt not create or establish any sinking fund or pledged fund which will be used to pay Installment Payments on the Obligation within the meaning of Section 1.148-1 (c) ofthe Treasury Regulations. If any sinking fund or pledged fund comes into being with respect to the Obligation before the Obligation has been fully retired which may be used to pay the Installment Payments, the Recipient will invest such sinking fund and pledged fund moneys at a yield that does not exceed the yield on the Bonds. 19 City of Vista Agreement No.: 13-843-550 Project No.; C-06-7847-110 4.18 Reserve Amount The State Water Board requires that the Recipient maintain and fund a separate account in an amount equal to one (1) year of debt service vwth respect to the Obligation (the "Reserve Amount"). The Recipient represents that the Reserve Amount is and will be available lo pay debt service with respect to the Obligation, if and when needed. The Reserve Amount consists solely of revenues ofthe Recipient and does not include any proceeds of any obligations the interest on which is excluded from gross income for federal income tax purposes or investment earnings thereon. The aggregate of the Reserve Amount, up to an amount not exceeding the lesser of (i) ten percent of the aggregate principal amount of the Obligation, (ii) the maximum annual debt sen/ice with respect lo the Obligation, or (iii) 125 percent of the average annual debt service with respect to the Obligation, will be treated as a reasonably required reserve fund. 4.19 Reimbursement Resolution. The "reimbursement resolution" adopted by the Recipient is incorporated herein by reference, pursuant to Exhibit A, 4.20 Reimbursement Expenditures. A portion of the Project Funds will be applied to reimburse the Recipient for Project costs paid before the date hereof No portion of Project Funds will be applied to reimburse the Recipient for a Project cost (i) paid prior lo sixty (60) days prior to the adoption of a declaration of official intent to finance the Project, (ii) paid more than eighteen (18) months prior to the dale hereof or with respect to a facility placed-in- service more than eighteen (18) months prior to the date hereof, whichever is later, and (iii) paid more than three (3) years prior to the date hereof, unless such cost is attributable to a "preliminary expenditure." Preliminary expenditure for this purpose means architectural, engineering, surveying, soil testing and similar costs incurred prior lo the commencement of constmction or rehabilitation of the Project, but does not include land acquisition, site preparation and similar costs incident to the commencement of acquisition, construction or rehabilitation of the Project. Preliminary expenditures may not exceed 20% of the costs of the Project financed with the Obligation, 4.21 Change in Use ofthe Project The Recipient reasonably expects to use all Project Funds and the Project for the entire stated term to maturity ofthe Obligation. Absent an opinion of Nationally-Recognized Bond Counsel lo the effect that such use of Project Funds will not adversely affect the exclusion from federal gross income of interest on the Bonds pursuant to Section 103 of the Code, the Recipient will use all Project Funds and the Project solely as set forth in the Agreement 4.22 Rebate Obligations, If the Recipient satisfies the requirements of one of the spending exceptions to rebate specified in Section 1.148-7 ofthe Treasury Regulations, amounts earned from investments, if any, acquired with the Project Funds will not be subject to the rebate requirements imposed under Section 148(f) ofthe Code, If the Recipient fails to satisfy such requirements for any period, it will notify the Stale Water Board and the Bank immediately and will comply with the provisions of the Code and the Treasury Regulations at such time, Including the payment of any rebate amount or any yield reduction payments calculated by the State Water Board or the Bank. 4.23 No Federal Guarantee. The Recipient will not directly or indirectiy use any ofthe Project Funds in any manner that would cause the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Code, taking into account various exceptions including any guarantee related to investments during an initial temporary 20 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 period until needed for the govemmental purpose of the Bonds, investments as part of a bona fide debt service fund, investments of a reasonably required reserve or replacement fund, investments in bonds issued by the United States Treasury, investments in refunding escrow funds or certain other investments permitted under the Treasury Regulations. 4.24 No Notices or Inquiries From IRS. Within the last 10 years, the Recipient has not received any notice of a final action of the Internal Revenue Service that determines that interest paid or payable on any debt obligation of the Recipient is or was includable in the gross income of an owner or beneficial owner thereof for federal income lax purposes under the Code. 4.25 Amendments. The provisions in this Article may be amended, modified or supplemented at any time to reflect changes in the Code upon obtaining writlen approval ofthe State Water Board and the Bank and an opinion of Nationally-Recognized Bond Counsel to the effect that such amendment, modification or supplement will not adversely affect the exclusion from federal gross income of interest on the Bonds pursuant to Section 103 of the Code. 4.26 Application. The provisions in this Article IV shall apply to a Recipient only if any portion of the Project Funds is derived fl-om proceeds of Bonds. 4.27 Reasonable Expectations. The Recipient warrants that, lo the best of its knowledge, infonnation and belief, and based on the fads and estimates as set forth in the tax covenants in this Article, the expectations of the Recipient as set forth in this Article are reasonable. The Recipient is not aware of any facts or circumstances that would cause it to question the accuracy or reasonableness of any representation made in the provisions in this Article IV. ARTICLE V MISCELLANEOUS PROVISIONS 5.1 Covenants. (a) Tax Covenant. Notwithstanding any other provision hereof, the Recipient covenants and agrees that il will comply with the Tax Covenants set forth in Article IV attached hereto if any portion of the Project Funds is derived from proceeds of Bonds. (b) Disclosure of Financial Information, Operating Data, and Other Information. The Recipient covenants to fumish such financial, operating and other data pertaining to the Recipient as may be requested by the State Water Board to: (i) enable the State Water Board to cause the issuance of Bonds and provide for security therefor; or (ii) enable any underwriter of Bonds issued for the benefit of the State Water Board to comply with Rule 15c2-12(b)(5). The Recipient further covenants to provide the State Water Board with copies of all continuing disclosure reports and materials conceming the Recipient required by the terms of any financing other than this Agreement and to submit such reports to the Slate Water Board at the same time such reports are submitted lo any dissemination agent, trustee, nationally recognized municipal securities information repository, the Municipal Securities Rulemaking Board's Electronic Municipal Market Access (EMMA) website or other person or entity. 21 City of Vista Agreement No.: 13-843-650 Project No.: C-06-7847-110 5.2 Assignability. The Recipient agrees and consents lo any pledge, sale, or assignment to the Bank or a tmstee for the benefit of the owners of the Bonds, if any, at any time of any portion of the Slate Water Board's estate, right, titie, and interest and claim in, to and under this Agreement and the right to make all related waivers and agreements in the name and on behalf of the State Water Board, as agent and attorney-in-fact, and to perform all other related acts which are necessary and appropriate under this Agreement, if any, and the Stale Water Board's estate, right, title, and interest and claim in, to and under this Agreement lo Installment Payments (but excluding the Stale Water Board's rights lo Additional Payments and lo notices, opinions and indemnification under each Obligation). This Agreement is not assignable by the Recipient, either in whole or in part, without the consent of the State Water Board in the form of a fonnal written amendment to this Agreement. 5.3 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 Recipient of its responsibility to properiy plan, design, constmct, operate, and maintain the Project. To the extent permitted by law, the Recipient agrees to indemnify, defend, and hold harmless the State Water Board, the Bank, and any tmstee, and their officers, employees, and agents for the Bonds, if any (collectively, "Indemnified Persons"), against any loss or liability arising out of any claim or action brought against any Indemnified Persons 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 constmction, ofthe 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 Toxic Substances Control Act, the Occupational Safety and Health Act, the Safe Drinking Water Act, the California Hazardous Waste Control Law, and California Water Code Section 13304, and any successors to said taws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untme statement or alleged untrue statement of any material fact or omission or alleged omission lo 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 ofthe 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 Indemnified Persons with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the discharge ofthe Recipient's Obligation hereunder. 5.4 Termination; Immediate Repayment; Interest (a) This Agreement may be terminated by written notice during constmction of the Project, or thereafter at any time prior to complete repayment by the Recipient, at the option of the Stale Water Board, upon violation by the Recipient of any material provision of this Agreement after such violation has been catted 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. (b) In the event of such temiination, the Recipient agrees, upon demand, to immediately repay to the State Water Board an amount equal to Installment Payments due hereunder, including accmed interest, and all penalty assessments due. In the event of termination, interest shall 22 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 accme on alt amounts due at the highest legal rate of interest fl-om the date that notice of termination is mailed to the Recipient to the date of full repayment by the Recipient, (c) Where the Recipient is a private entity that has been determined to have violated an applicable prohibition in the Prohibition Statement below or has an employee who is determined by USEPA to have violated an applicable prohibition in the Prohibition Statement below that is either associated with performance under this aware or imputed to the Recipient using the standards and due process for imputing the conduct of an individual to an organization pursuant to 2 CFR Part 180, the Recipient acknowledges and agrees that this Obligation may become immediately due and payable and that penalties up to $175 million may be due by the Recipient to the Stale Water Board, in addition to any other crimirial or civil penalties that may become due. The Recipient, its employees, its contractors, and any subrecipienls or subcontractors may nol engage in trafficking in persons, procure a commercial sex act, or use forced labor. 5.5 Income Restrictions. The Recipient agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accming lo or received by the Recipient under this Agreement shall be paid by the Recipient to the State, to the extent that they are properiy allocable to costs for which the Recipient has been reimbursed by the State under this Agreement 5.6 Prevailing Wages. The Recipient agrees to be bound by all the provisions of Stale Labor Code Section 1771 regarding prevailing wages. The Recipient shall monitor all agreements subject lo reimbursement from this Agreement to assure that the prevailing wage provisions of State Labor Code Section 1771 are being met 5.7 Timeliness. Time is of the essence in this Agreement. 5.8 Governing Law. This contract is govemed by and shall be interpreted in accordance with the laws of the State of California, 5.9 Amendment. No amendment or variation ofthe terms of this Agreement shall be valid unless made In writing, signed by the parties and approved as required. No oral understanding or agreement nol incorporated in this Agreement is binding on any of the parties, 5.10 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 nol apply to any contract for less than $20,000.00, 5.11 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. 23 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 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 adopted environmental mitigation plan for the term of this Agreement; (2) Comply with the State Water Board's "Policy for Implementing the Clean Water State Revolving Fund," dated May 7, 2013; (3) Comply with and require its contractors and subcontractors on the Project to comply with federal DBE requirements; and (4) Comply with and require its contractors and subcontractors to comply with the list of federal laws attached as Exhibit E. 5.12 Conflict of Interest. The Recipient certifles that it is in compliance with applicable state and/or federal conflict of interest laws. 5.13 Damages for Breach Affecting Tax Exempt Status or Federal Compliance 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 bonds ofthe State or any subdivision or agency thereof, including Bonds issued on behalf of the State Water Board, or if such breach shall result in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal govemment by reason of any artJitrage profits, the Recipient shall immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach. 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 this Agreement, or if such breach shall result in an obligation on the part of the Slate or any subdivision or agency thereof to reimburse the federal government, the Recipient shall immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the Stale or any subdivision or agency thereof due to such breach. 5.14 Disputes. (a) The Recipient may appeal a staff decision within 30 days to the Deputy Director of the Division or designee, for a final Division decision. The Recipient may appeal a final Division decision to the Slate Water Board within 30 days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative lo its final resolution, which will be provided to the State Water Board's Executive Director and each State Water Board Member. Upon the motion of any State Water Board Member, the State Water Board will review and resolve the dispute in the manner detennined by the State Water Board. Should the State Water Board determine not to review the final Division decision, this decision will represent a final agency action on the dispute. (b) This clause does not preclude consideration of legal questions, provided tiiat nothing herein shall be constmed to make final the decision ofthe State Water Board, or any official or representative thereof, on any question of law. (c) Recipient shall continue with the responsibilities under this Agreement during any dispute. 24 City of Vista Agreement No.: 13-843-550 Project No.: 0-06-7847-110 5.15 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, 5.16 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 tiieir employees and applicants for employment are free fi-om such discrimination and harassment. (c) The Recipient, its contractors, and subconb-actors shall comply with the provisions ofthe Fair Employment and Housing Act and the applicable regulations promulgated thereunder. (Gov. Code, §12990, subds. (a)-(f) el seq.; Cal, Code Regs., tit 2, § 7285 el seq,) Such 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. 5.17 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. 5.18 Operation and Maintenance; Insurance. The Recipient agrees to sufficiently and properly staff, operate and maintain all portions of the Project during its useful life in accordance with ail applicable state and federal laws, mles and regulations. 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 destmction of the System) as are usually covered in connection with systems similar to the System. Such insurance may be maintained by the maintenance of a self- 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 al 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 lo the reconstruction, repair or replacement of the damaged or destroyed portion of the System. The Recipient shall begin such reconstmction, repair or replacement as expeditiously as possible, and shall pay out of such net proceeds all costs and expenses in connection with such reconstmction, repair or replacement so that the same shall be completed and the System shall be free and clear of all claims and liens. If such net proceeds are insufficient to enable 25 0\V City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 the Recipient to pay all remaining unpaid principal portions ofthe Installment Payments, the Recipient shall provide additional funds lo restore or replace the damaged portions of the System. 5.19 Permits, Subcontracting, and Remedies. The Recipient shall comply in all material respects with alt applicable federal, state and local laws, mles and regulations. Recipient shall procure all permits, licenses and other authorizations necessary lo 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 ofthe woric. Signed copies of any such pennits or licenses shall be submitted to the Division before construction begins. 5.20 Recipient's Responsibility for Work. The Recipient shall be responsible for all work and for persons or entities engaged in work perfonned pursuant lo this Agreement, including, but nol 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, The State Water Board will not mediate disputes between the Recipient and any other entity conceming responsibility for performance of work. 5.21 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 the State Water Board or any Regional Water Quality Control 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 5.22 Rights in Data. The Recipient agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic woric produced in the perfonnance of this Agreement are subject to the rights of the State as set forth in this section. The State 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 woric which is copyrighted by the Recipient, the State reserves 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) 5.23 State Water Board 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 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 the Slate Water Board shall not preclude the State Water Board fi-om pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising fi-om this Agreement, it is agreed that each party shall bear its own costs and attomey fees. 5.24 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. 26 City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 5.25 Useful Life, The economic useful life of the Project, commencing at Project Completion, is al least equal to the term of this Agreement, as set forth in Exhibit B hereto. 5.26 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, Califomia, 5.27 Waiver and Rights of the State Water Board, Any waiver of rights by the Stale Water Board with respect to a default or other matter arising under the Agreement at any time shall nol be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State Water Board provided for in this Agreement are in addition to any other rights and remedies provided by law. 27 City of Vista Agreement No : 13-043-550 Project No : C-Oe-7847-110 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. CITY OF VISTA: Pabick Johnlon City Manager By:„ Name Titie: City Manager STATE WATER RESOURCES CONTROL BOARD: Sv: X t Ato^^t^ Name: Qohn S Russell THIe: Acting Deputy Director Division of Financial Assistance Date: 28 City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 EXHIBIT A - SCOPE OF WORK & INCORPORATED DOCUMENTS 1. The Recipient agrees to start construction no later than the estimated date of August 1, 2014. 2. The estimated Completion of Constmction date is hereby established as August 1, 2016. 3. The Recipient agrees to ensure thai its final Request for Disbursement is received by the Division no later than six months after Completion of Construction, unless prior approval has been granted by the Division. If the Recipient fails to do so, then the undisbursed balance of this Agreement will be deobligaled. 4. Incorporated by reference into this Agreement are the following documents; (a) the the (b) the (c) the (d) the (e) the (e) the Recipient's Reimbursement Resolution No. 2012-86 dated June 12, 2012, 5. Scope of Woric, (a) Project Objectives The improvements are necessary as a replacement for the existing sewer line and lift station, which are under-sized, outdated and nearing the end of their useful life. The facilities also do nol have sufficient capacity to convey future projected build-out wastewater flows of the urbanized service area. The new project is designed to convey the fijture anticipated build-out flows. (b) Project Description The project involves the installation of new sewer conveyance facilities (gravity, force main and lift station) on the Vista/Carisbad Sewer Interceptor System (segments VCl 1 through VC15), jointiy owned by the cities of Vista and Carisbad. These segments are part of a regional sewage collection system which receives sewage flow fi-om the cities of Vista (inland) and Calrsbad (coastal), located in North San Diego County. Along the length ofthe sewer route from north to south, the project includes a replacement bridge to support a 54-inch replacement sewer pipe across the Agua Hedionda Lagoon channel, the replacement of the existing Agua Hedionda Sewer Lift Station and 30-inch force main, and new 54-inch gravity sewer terminating at the Encina Wastewater Authority (EWA) regional treatment facility. A-1 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT B - PROJECT FINANCING AMOUNT 1. Estimated Reasonable Cost The estimated reasonable cost of the total Project, including associated planning and design costs, is twenty one million, nine hundred ninety one thousand, eight hundred sixty nine dollars and no cents ($21,991,869,00). 2. Project Funding, Subject to the terms of this Agreement, the State Water Board agrees to provide Project Funds in the amount of up to is twenty one million, nine hundred ninety one thousand, eight hundred sixty nine dollars and no cents ($21,991,869.00), 3. Repayment, Interest Rate, and Charges, The Recipient agrees to repay all Project Funds according to the schedule in Exhibit C at an interest rate of one and nine tenths percent (1.9%) per annum. The Recipient agrees to pay an Administrative Service Charge of zero percent (0.0%) per annum. The Recipient agrees to pay a Small Community Grant Fund Charge at zero percent (0.0%) per annum, 4. The tenn of this agreement is from May 2, 2014 to August 1, 2036, 5. Budget costs are contained in the Project Cost Table, which is part of Exhibit A-FBA. (This Agreement will be amended to incorporate Exhibit A-FBA,) 6. Constmction costs and disbursements are nol available until after this Agreement has been amended lo incorporate Exhibit A-FBA. Any construction expenses incurred by the Recipient prior to such amendment of this Agreement are at the Recipient's risk. Failure to begin constmction according to the timelines set forth in Exhibit A will require the Recipient to repay to the State Water Board all disbursed Project Funds, including planning and design allowances. B-1 c\-^ City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT C - CWSRF PAYMENT SCHEDULE See the attached preliminary CWSRF Payment Schedule dated May 15, 2014. The final CWSRF Payment Schedule will be fonwarded lo the Recipient after all disbursements have been paid and constmction of the Project has been completed. C-1 .2 B ft. s Sf u C B B « U CQ 1 § N V a. E E 1 5£ SSSSSSSS8S8SSS8SSSSS ociooooooooooooocioocio S o — 00 — ^^^'OO'Or* — ^NO'^i'OtNfnrNiN s 00 — (NfHOsOCT^ — — O — rN (N rs (N •—0_ 0^ r*_^ O" oo' r-' in r^' (N o' p ^ — OS 1/-) f <7> 00 D "<J; O. oo_^ >o o" r-" -.o n->" n" ^r^r-r-r*-r-r*r-r*r-p^r*r'r-r'r-r»-r~r' — \o' r< K S ^ ^ ^ ^ ^ 00 00 oo 00 CN o" o" o' o' o" o' o' o" o" o' o' o" o" o" o' o" o o' o t" r-r-P-r> 1^ p^ p*. 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Unless the Recipient has obtained a waiver from USEPA on file with the State Water Board, the Recipient shall not use Project Funds to purchase "iron and steel products" produced outside of the United States. Unless the Recipient has obtained a waiver from USEPA on file with the State Water Board, the Recipient hereby certifies that all "iron and steel products" used in the Project were or will be produced in the United Slates. For purposes of this section, the lerni "iron and steel products" means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. Property Rights. The Recipient agrees and acknowledges that the State Water Board will not disburse constmction funds to the Recipient until the Recipient has provided the Division with an opinion from counsel that the Recipient has perfected its right to use the property where the Project is located for tiie purposes contemplated in this Agreement for a period exceeding the term of this Agreement, Environmental Special Conditions as follows: The following documents are incorporated by reference and the Recipient shall comply with the conditions herein: 1. The letter (Reference No. EPA_2013_0426_001) dated June 21, 2013, from Carol Roland-Nawi, Ph.D. at the Office of Historic Preservation, Department of Paries and Recreation to Ahmad Kashkoli of the State Water Board regarding Section 106 consultation. 2. The City of Carisbad's November 2004 Habitat Management Plan. In accordance with the September 12, 2012 adopted Mitigation Monitoring and Reporting Program, the Recipient shall comply with the mitigation measures, including the following: • AQ-1 through AQ-3 for air quality • BIO-1 through BIO-12 for biological resources, • CUL-1 through CUL-3 for cultural resources, • GEO-1 for geology and soils, and • HAZ-1 through HAZ-5 for hazards and hazardous materials. The Recipient will make no changes in the Project, construction area, or special conditions, without obtaining prior approval from the Stale Water Board and the State Historic Preservation Officer. The Recipient understands that it is prohibited from making any such changes without those approvals. REPORTING TO THE STATE WATER BOARD: The Recipient shall include the status of its environmental compliance with the measures identified in this Exhibit D in the Project Quarterly Constmction Status Reports, and shall report its environmental compliance efforts with the measures identified herein in the final Project Quarteriy Construction Status Report for submittal to the State Water Board after the completion of the Project construction. D-1 City of Vista Agreement No.; 13-843-550 Project No,: C-06-7847-110 EXHIBIT D — SPECIAL CONDITIONS Financial Special Conditions as follows: 1. The Recipient shall covenant to establish rates and charges in amounts sufficient lo generate net revenues of the Sewer Enterprise Fund equal to al least 1.10 times the total annual debt service. 2. The Recipient shall establish a restricted reserve fund, held in the Sewer Enterprise Fund, equal to one year's debt service prior to the constmction completion date of the project. The restricted resen/e fijnd shall be maintained for the full term of the finance agreement and shall be subject to lien and pledge as security for the Obligation, D-2 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT E — FEDERAL CONDITIONS & CROSS-CUTTERS The Recipient agrees to comply with the following conditions required by USEPA; 1 No Recipient or subrecipient may receive funding under this Agreement unless it has provided its DUNS number to the State Water Board. (2011 Cap Grant) 2. Executive Compensation. Where the Recipient received 80 percent or more of its annual gross revenues fi-om federal procurement contracts (and subcontracts) and $25,000,000 or more in annual gross revenues from federal procurement contracts (and subcontracts), the Recipient agrees to notify the State Water Board, The Recipient agrees to provide infonnation regarding executive compensation lo the Stale Water Board upon request, in order for the Slate Water Board to comply with USEPA requirements. 3. Trafficking in Persons. The Recipient, its employees, contractors and subcontractors and their employees may not engage in severe fomis of trafficking in persons during the term of this Agreement, procure a commercial sex act during the term of this Agreement, or use forced labor in the perfonnance of this Agreement. The Recipient must include this provision in its contracts and subcontracts under this Agreement. The Recipient must inform the Stale Water Board immediately of any information regarding a violation of the foregoing. The Recipient understands that failure to comply with this provision may subject the Slate Water Board to loss of federal funds in the amount of $101,066,000. The Recipient agrees to compensate the State Water Board for any such funds lost due to its failure to comply with this condition, or the failure of its contractors or subcontractors lo comply with this condition. The State Water Board may unilaterally terminate this Agreement and full repayment will be due immediately, if a subrecipient that is a private entity is determined to have violated the foregoing. Trafficking Victims Protection Act of 2000, 4. Contractors, Subcontractors, Debannent and Suspension, Executive Order 12549; 2 CFR Part 180; 2 CFR Part 1532. The Recipient shall not subcontract with any party who is debarred or suspended or othenvise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debannent 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 il 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, stale or local) transaction or contract under a public transaction; violation of federal or stale antitmsl 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 othenvise criminally or civilly charged by a govemmental entity (federal, state or local) with commission of any ofthe 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, stale or local) tenninated for cause or default E-1 City of Vista Agreement No,; 13-843-550 Project No,: C-06-7847-110 EXHIBIT E — FEDERAL CONDITIONS & CROSS-CUTTERS Suspension and debarment information can be accessed at http://v\/ww.sam,gov. The Recipient represents and warrants that il has or will include a term or conditions requiring compliance with this provision in all of its contracts and subcontracts under this Agreement, The Recipient acknowledges lhal failing to disclose the infonnation as required at 2 CFR 180.335 may result in the termination, delay or negation of this Agreement, or pursuance of legal remedies, including suspension and debarment 5. Anti-Lobbying Provisions (40 CFR Part 34) & Anti-Litigation Provisions (2 CFR 220, 225, or 230). The Recipient shall ensure that no funds under this Agreement are used lo engage in lobbying of the federal govemment or in litigation against the United States unless authorized under existing law. The Recipient shall abide by 2 CFR 225 (OMB Circular A-87) (or, if not applicable, other parallel requirements), which prohibits the use of federal grant funds for litigation against the United Stales or for lobbying or other political activities. The Recipient agrees to comply with 40 CFR Part 24, New Restrictions on Lobbying, The Recipient agrees to submit certification and disclosure fonns in accordance with these provisions. In accordance with the Byrd Anti-Lobbying Amendment, any Recipient who makes a prohibited expenditure under 40 CFR Part 34 or fails to file the required certification or lobbying forms shall be subject lo a civil penalty of not less than $10,000 and nol more than $100,000 for each such expenditure. The Recipient shall abide by its respective 2 CFR 200,225, or 230, which prohibits the use of federal grant funds for litigation against the United States or for lobbying or other political activities. 6. Disadvantaged Business Enterprises. 40 CFR Part 33, The Recipient agrees to comply with the requirements of USEPA's Program for Utilization of Small, Minority and Women's Business Enterprises, The DBE mie can be accessed at www.epa.Qov/osbP . The Recipient shall comply with, and agrees to require its prime contractors lo comply with 40 CFR Section 33,301, and retain all records documenting compliance with the six good faith efforts, 7. The Recipient agrees to comply with the Davis-Bacon provisions attached as Exhibit G. The Recipient agrees to comply with the following federal laws, as applicable to recipients of CWSRF funding: Environmental Authorities 1. Archeological and Historical Preservation Act of 1974, Pub. L. 86-523, as amended, Pub. L. 93-291 16USC§469a-1. 2. Clean Air Act, Pub. L, 84-159, as amended. 3. Coastal Bamer Resources Act, Pub. L, 97-348, 96 Stat. 1653; 16 USC § 3501 et seq. 4. Coastal Zone Management Act Pub, L. 92-583, as amended; 16 USC § 1451 et seq, 5. Endangered Species Act, Pub. L. 93-205, as amended; 16 USC § 1531 et seq.. 6. Environmental Justice, Executive Order 12898. 7. Floodplain Management, Executive Order, 11988 as amended by Executive Order 12148. 8. Protection of Wetiands. Executive Order 11990, as amended by Executive Order No, 12608, E-2 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT E — FEDERAL CONDITIONS & CROSS-CUTTERS 9. Farmland Protection Policy Act, Pub. L. 97-98; 7 USC § 4201 et seq. 10. Fish and Wildlife Coordination Act, Pub. L, 85-624. as amended, 11. National Historic Preservation Act of 1966, Pub. L. 89-665, as amended, 80 Stat, 917 (1966) 16 USC § 470 et seq. 12. Safe Drinking Water Act, Pub, L. 93-523, as amended; 42 USC § 300f et seq. 13. Wild and Scenic Rivers Act, Pub. L. 90-542, as amended, 82 Stat 913; 16 USC § 1271 et seq. 14. Essential Fish Habitat Consultation, Pub. L. 94-265, as amended, 16 USC § 1801 et seq. 15. Recycled Materials. Executive Order 13101; Section 6002 Resource Conservation and Recovery Act-42 USC §6962. Economic and Miscellaneous Authorities 1. Demonstration Cities and Metropolitan Development Act of 1966. Pub. L. 89-754, as amended. Executive Order 12372/ 42 USC § 3331 et seq. 2. Procurement Prohibitions under Section 306 of the Clean Air Act and Section 508 of the Clean Water Act, including Executive Order 11738, Administration ofthe Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans; 42 USC § 7606; 33 USC § 1368; 40 CFR Part 31. 3. Uniform Relocation and Real Property Acquisition Policies Act, Pub. L. 91-646, as amended; 42 USC §§4601-4655 4.. Preservation of Open Competition and Govemment Neuti-ality Towards Govemment Contractors' Labor Relations on Federal and Federally Funded Constmction Projects, EO 13202, as amended by EO 13208. 6. Hotel and Motel Fire Safely Act of 1990 (PL 101-391, as amended). All conference, meeting, convention, or training funded in whole or in part with federal funds shall comply with the protection and control guidelines of this act. Recipients may search http://www.usfa.dhs.qov/appIications/hotel/. 7. Records and financial reporting requirements, 40 CFR Part 31. 8. Copyright requirements. 40 CFR Part 31. Social Policy Authorities 1. Age Discrimination Act of 1975. Pub. L. 94-135; 42 USC § 6102. 2. Race Discrimination. Title VI ofthe Civil Rights Act of 1964, Pub. L, 88-352.1; 42 USC § 2000d; 40 CFR Part 7. E-3 City of Vista Agreement No.: 13-843-550 Project No,: C-06-7847-110 EXHIBIT E — FEDERAL CONDITIONS & CROSS-CUTTERS 3. Sex Discrimination. Section 13 ofthe Federal Water Pollution Control Act Amendments of 1972, Pub. L, 92-500 (the Clean Water Act); 33 USC § 1251; 40 CFR Part 7. 4. Disability Discrimination. Section 504 ofthe Rehabilitation Act of 1973. Pub. L. 93-112 (including Executive Orders 11914 and 11250); 29 USC § 794; 40 CFR Part 7. 5. Equal Employment Opportunity, Executive Order 11246. 6. Section 129 ofthe Small Business Administration Reauthorization and Amendment Act of 1988, Pub. L. 100-590. E-4 City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 EXHIBIT F — SCHEDULE OF MATERIAL OBLIGATIONS Except for the following and the Obligation evidenced by this Agreement, the Recipient certifies that it has no outstanding Material Obligations and that it is in compliance with all applicable additional debt provisions of the following: The following outstanding debt is senior to the Obligation: Title Interest Rate Total Amount Amount Remaining End Date Not applicable. The following outstanding debt is on parity with the Obligation: Title Interest Rate Total Amount Amount Remaining End Dale CWSRF C-06-5921-110 2.0% $3,426,573 $3,274,182.73 10/11/2032 CWSRF C-06-5698-110 2.2% $2,631,557 $2,505,609,04 01/25/2033 CWSRF C-06-5700-110 1.7% $3,072,168 $3,072,168 05/15/2034 The following outstanding debt is subordinate to the Obligation: Title Interest Rate Total Amount Amount Remaining End Date Not applicable. F-1 City of Vista Agreement No.; 13-843-550 Project No,: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS 1. Contract and Subcontract provisions for Recipients (a) The Recipient shall insert in full in any contract in excess of $2,000 which is entered into for the actual constmction, alteration and/or repair, including painting and decorating, of a treatment work under the CWSRF the following clauses; (1) Minimum wages. (i) All laborers and mechanics employed or woricing upon the site of the woric will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the fijil amount of wages and bona fide fringe benefits (or cash equivalents thereof) due al time of payment computed al rates nol less than those contained in the wage detennination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) ofthe Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1 )(iv) of this section; also, regular contributions made or costs incun-ed for more than a weekly period (but nol less often than quarteriy) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of woric actually performed, without regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers, Subrecipienls may obtain wage determinations from the U.S. Department of Labor's web site, www.dol.gov. (ii) (A) The Recipient, on behalf of EPA, shall require that any class of laborers or mechanics, including helpers, which Is not listed in the wage determination and which is to be employed under the contract shall be classified in confonnance with the wage determination. The Slate award official shall approve a request for an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be perfonned by the classification requested is not performed by a classification in the wage detennination; and G-1 City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship lo the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the Recipient agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), documentation of the action taken and the request, including the local wage determination shall be sent by the Recipient to the State award official. The State award official will transmit the request, to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210 and to the EPA DB Regional Coordinator concun-ently. The Administi'ator, or an authorized representative, will approve, modify, or disapprove every additional classification request within 30 days of receipt and so advise the State award official or will notify the Stale award official within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics lo be employed In the classification or their representatives, and Recipient do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the award official shall refer the request and the local wage determination, including the views of all interested parties and the recommendation of the Slate award official, to the Administrator for detennination. The request shall be sent to the EPA DB Regional Coordinator concurrently. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt ofthe request and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classific^atiori. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a ft-inge benefit which is not expressed as an houriy rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an houriy cash equivalent thereot (iv) If the contractor does nol make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program. Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis- Bacon Act have been met The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. G-2 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS (2) Withholding. The Recipient, shall upon written request of the EPA Award Official or an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased, (3) Payrolls and basic records. (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the woric and preserved for a period of three years thereafter for all laborers and mechanics woricing at the site of the woric. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, houriy rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof ofthe types described in section 1(b)(2)(B) ofthe Davis-Bacon Act), daily and weekly number of hours woriced, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(l)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) ofthe Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and tiiat the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incun-ed in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence ofthe registration of apprenticeship programs and certification of trainee programs, the registration ofthe apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii) (A) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to the Recipient, that is, the entity that receives the sub-grant or loan from the State capitalization grant recipient Such documentation shall be available on request of the Stale or EPA. As to each payroll copy received, the Recipient shall provide written confirmation in a form satisfactory to the Slate indicating whether or not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the specified week. The payrolls shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on the weekly payrolls. Instead tiie payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at G-3 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS htti3;//www.dol.qov/esaAvhd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and cun-ent address of each covered worker, and shall provide them upon request to the Recipient for transmission to the State Water Board or EPA if requested by EPA , the State Water Board, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. II is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the Recipient (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following; (1) That the payroll for the payroll period contains the infonnation required lo be provided under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, tiie appropriate infonnation is being maintained under § 5,5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such infonnation is correcit and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the conti^ct during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectiy, and that no deductions have been made either directiy or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid nol less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properiy execuied certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission ofthe "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civii or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United Slates Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the State, EPA or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails lo submit the required records or to make them available, the Federal agency or State may. after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment. G-4 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS advance, or guarantee of ftjnds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5,12. (4) Apprentices and trainees. (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rale for the woric they perfonned when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U,S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a Slate Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire woric force under the registered program. Any woricer listed on a payroll at an apprentice wage rale, who is nol registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for tiie classification of woric actually performed. In addition, any apprentice performing work on the job site in excess ofthe ratio permitted under the registered program shall be paid nol less than the applicable wage rate on the wage determination for the woric actually performed. Where a contractor is perfomiing constmction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the joumeyman's houriy rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specifled in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen houriy rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions ofthe apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the woric performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rale for the work performed unless they are employed pursuant lo and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S, Department of Labor, Employment and Training Administration. The ratio of trainees to joumeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's G-5 \\\ City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS level of progress, expressed as a percentage of the journeyman houriy rate specifled in the applicable wage determination. Trainees shall be paid fringe benefits in accorciance with the provisions of the trainee program. If the trainee program does nol mention fringe benefits, trainees shall be paid the full amount of fi-inge benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on tiie wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a ti-ainee rate who is not registered and participating in a training plan approved by tiie Employment and Training Administration shall be paid not less than the applicable wage rale on the wage determination for the classification of work actually perfonned. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rale on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work perfonned until an acceptable program is approved, (iii) Equal employment opportunity. The utilization of apprentices, trainees and joumeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30, (5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract (6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the EPA determines may by appropriate, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. (7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for tennination ofthe contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5,12. (8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations ofthe Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall nol be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5,6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and Recipient, Slate, EPA, the U.S. Department of Labor, or the employees or their representatives, (10) Certification of eligibility. G-6 V City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or fimi ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5,12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) ofthe Davis-Bacon Act or 29 CFR 6.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S, Criminal Code, 18 U.S.C. 1001. 2. Contract Provision for Contracts in Excess of $100,000. (a) Contract Woric Hours and Safety Standards Act. The Recipient shall insert the following clauses set forth in paragraphs (a)(1), (2), (3), and (4) of this section in full in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Woric Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by Section 1, above or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any woricweek in which he or she is employed on such work to woric in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rale not less than one and one-half times the basic rate of pay for all hours woriced in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (a)(1) of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United Slates (in the case of work done under contract for the District of Columbia or a territory, to such District or to such len-itory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (a)(1) of this section, in the sum of $10 for each calendar day on which such individual was required or pemiitted to woric in excess of the standard woricweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (a)(1) of this section. (3) Withholding for unpaid wages and liquidated damages. The Recipient, upon written request of the EPA Award Official or an authorized representative of the Department of Labor, shall withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Woric Hours and Safety Standards Act. vrfiich is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section, G-7 City of Vista Agreement No.; 13-843-550 Project No.; C-06-7847-110 EXHIBIT G - DAVIS BACON REQUIREMENTS (4) Subcontracts, The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (a)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (a)(l) through (4) of this section. (b) In addition to the clauses contained in Section 1, above, in any contract subject only to the Contract Woric Hours and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, tiie Recipient shall insert a clause requiring that the contractor or subcontractor shall maintain payrolls and basic payroll records during the course ofthe woric and shall preserve them for a period of three years from the completion of the confiict for all laborers and mechanics, including guards and watchmen, working on the contract Such records shall contain the name and address of each such employee, social security number, correct classifications, houriy rates of wages paid, dally and weekly number of hours worked, deductions made, and actual wages paid. Further, the Recipient shall insert in any such contract a clause providing that the records to be maintained under this paragraph shall be made available by the contractor or subcontractor for inspec^tion, copying, or transcription by authorized representatives ofthe United Slates Environmental Protection Agency, the Department of Labor, or the State Water Resources Control Board, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job. 3. Compliance Verification (a) The Recipient shall periodically interview a sufficient number of employees entitled to DB prevailing wages (covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates. As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The Recipient must use Standard Form 1445 (SF 1445) or equivalent documentation to memorialize the interviews. Copies ofthe SF 1445 are available fi-om EPA on request (b) The Recipient shall establish and follow an inlen/iew schedule based on its assessment of the risks of noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract At a minimum, the Recipient should conduct interviews with a representative group of covered employees within two weeks of each contractor or subcontractor's submission of its initial weekly payroll data and two weeks prior to the estimated completion date for the contract or subcontract. The Recipient must conduct more frequent interviews if the initial inten/iews or other information indicates that there is a risk that the contractor or subcontractor is not complying with DB . The Recipient shall immediately conduct necessary interviews in response to an alleged violation of the prevailing wage requirements. All interviews shall be conducted in confidence. (c) The Recipient shall periodically conduct spot checks of a representative sample of weekly payroll data to verify that contractors or subcontractors are paying the appropriate wage rates. The Recipient shall establish and follow a spot check schedule based on its assessment ofthe risks of noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract At a minimum, if practicable, the Recipient should spot check payroll data within two weeks of each contractor or subcontractor's submission of its initial payroll data and two weeks prior to the completion date the contract or subcontract. The Recipient must conduct more frequent spot checks if the initial spot check or other infonnation indicates that there is a risk that the contractor or subcontractor is not complying with DB. In addition, during the examinations the Recipient shall verify evidence of fringe benefit plans and payments thereunder by contractors and subcontractors who claim credit for fringe benefit contributions, G-8 v20l3c«iM City of Vista Agreement No.; 13-843-550 Project No.: C-06-7847-110 EXHIBIT G - DAVtS BACON REQUIREMENTS (d) The Recipient shall periodically review contractors and subcontractors use of apprentices and trainees to verify registration and certification with respect to apprenticeship and training programs approved by either the U.S Department of Labor or a slate, as appropriate, and that contractors and subcontractors are nol using disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be conducted in accordance with the schedules for spot checks and interviews described in Item 5(b) and (c) above. (e) The Recipient must immediately report potential violations of the DB prevailing wage requirements lo the EPA DB contact listed above and to the appropriate DOL Wage and Hour Disbict Office listed at http://wv>w.dol.aov/esa/contacts/whd/america2,htm. G-9 City of Vista Agreement No.: 13-843-550 Project No.: C-06-7847-110 EXHIBIT H - MATERIAL LITIGATION. INVESTIGATIONS, AUDITS None. H-1 RESOLUTION NO. 2015-10 A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF VISTA. CALIFORNIA. APPROVING THE PROJECT AGREEMENT FOR CONSTRUCTION OF THE AGUA HEDIONDA SEWER LIFT STATION AND VISTA/CARLSBAD INTERCEPTOR SEWER. REACHES VC11B-VC15 The City Council of the City of Vista does resolve as follows: 1. Findings. The City Council hereby finds and declares the following: A The existing Agua Hedionda Sewer Lift Station and existing Vista/Carlsbad Interceptor Sewer were built in the eariy 1960's and do not have adequate capacity to convey the sewage flows projected for this basin. B On February 26, 2002. Vista and Carlsbad ("Parties") entered into an Agreement for Ownership, Operation and Maintenance of the Vista/Carlsbad Interceptor Sewer. G The Sewer Master Plans for the Parties include a recommendation that the Agua Hedionda Sewer Lift Station and reaches VC11B-VC15 of the Vista/Carlsbad Interceptor Sewer be replaced with larger pipes and pumps to increase the capacity necessary to convey future flows ("Project"). • D. On September 13, 2011, the City Council approved an agreement with the City of Carlsbad for the planning and design of the Agua Hedionda Lift Station. E On June 11, 2013, the City Council approved the Amended and Restated Agreement for Ownership, Operation, and Maintenance ofthe Vista/Carlsbad Interceptor Sewer, which allows for the cities of Vista and Carlsbad to jointly undertake improvements to the interceptor sewer system, including the Agua Hedionda Lift Station. F On June 10, 2014, the City Council adopted the FY 2014/15 Capital Improvement Program allocating the required funding to construct the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer, reaches VC11B-VC15. G In order to construct the Project and to address the responsibilities ofthe Parties, Vista and Carlsbad desire to enter into a Project Agreement for Construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer, Reaches VC11B-VC15 ("Agreement"). 2. Action. A. The Agreement is approved, [continued on following page] ^ RESOLUTION NO. 2015-10 CITY COUNCIL OF THE CHARTERED CITY OF VISTA PAGE 2 B, The Mayor is authorized to execute the Agreement on behalf of the City. 3. Adoption. PASSED AND ADOPTED at a meeting of the City Council held on January 27, 2015, by the following vote: AYES: MAYOR RITTER. AGUILERA, CAMPBELL, RIGBY, FRANKLIN NOES: NONE ABSTAIN: NONE JUDYRKITER. MAYOR APPROVED AS TO FORM: ATTEST: DAROLD PIEPER, CITY ATTORNEY MARCI KILIAN, CITY CLERK Bv: ^T^-^C^^^-^^^-^^r^ By APPROVED Jonathan B. Stone 1509 011415 eXH 1 Re80 docx