HomeMy WebLinkAbout2023-02-14; Municipal Water District; Resolution 1695RESOLUTION NO. 1695
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT OF THE CITY OF CARLSBAD, CALIFORNIA,
APPROVING A SUBRECIPIENT AGREEMENT FOR A U.S. TITLE XVI WATER
RECLAMATION AND REUSE FISCAL YEAR 2021 GRANT AWARD FOR THE
NORTH SAN DIEGO WATER REUSE COALITION REGIONAL RECYCLED WATER
PROGRAM
WHEREAS, the Carlsbad Municipal Water District, or CMWD, Board has determined that the
expansion of recycled water use provides a renewable, local and drought-proof supply of water for
irrigation and other uses; and
WHEREAS, federal grant funds offset ratepayer costs; and
WHEREAS, the CMWD has partnered with the North San Diego County Water Reuse Coalition
to successfully obtain federal grant funding from the United States Bureau of Reclamation for local
recycled water projects; and
WHEREAS, the Olivenhain Municipal Water District is the lead agency for the North San Diego
County Water Reuse Coalition; and
WHEREAS, the Olivenhain Municipal Water District has drafted a subrecipient agreement for
participating agencies in the North San Diego County Water Reuse Coalition to enter to receive the
approved federal grant funding from the Bureau of Reclamation.
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of the City
of Carlsbad, California, as follows:
l.That the above recitations are true and correct.
2.That the Board approves the subrecipient agreement, Attachment A, for the
administration of federal grant funds for recycled water.
3.That the Board authorizes the Carlsbad Municipal Water District General Manager to
sign the subrecipient agreement, Attachment A, and submit the executed agreement to
the Olivenhain Municipal Water District.
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water
District Board of the City of Carlsbad on the 14th day of February, 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
Blackburn, Bhat-Patel, Acosta, Burkholder.
None.
None.
None.
�
KEITH BLACKBURN, President
SHERRY FREISINGER, Secretary
(SEAL)
AGREEMENT BETWEEN OLIVENHAIN MUNICIPAL WATER DISTRICT AND SUBRECIPIENTS OF
THE TITLE XVI WATER RECLAMATION AND REUSE FY 2021 GRANT AWARD FOR THE NORTH
SAN DIEGO WATER REUSE COALITION REGIONAL RECYCLED WATER PROGRAM
23AGR001
This Agreement between Olivenhain Municipal Water District, a Municipal Water District
organized and operating pursuant to Water Code Sections 71000 et seq. (hereinafter
Olivenhain); and Carlsbad Municipal Water District (Carlsbad), the City of Escondido
(Escondido), Leucadia Wastewater District (Leucadia), the City of Oceanside (Oceanside), Rincon
del Diablo Municipal Water District (Rincon), San Elijo Joint Powers Authority (San Elijo), and
Vallecitos Water District (Vallecitos) (collectively Subrecipients), sets forth the understanding of
Olivenhain and Subrecipients (collectively Parties) for partnership and uses of the 2021 grant
award from the United States Bureau of Reclamation (USBR).
RECITALS
1.Olivenhain, Carlsbad, Escondido, Leucadia, Oceanside, Rincon, San Elijo, and Vallecitos
collectively comprise the current entities of the North San Diego Water Reuse Coalition
(Coalition) participating in the pursuit of funding via USBR's Title XVI program for the
Coalition's Regional Recycled Water Program. Santa Fe Irrigation District (Santa Fe) is
nominally a member of the Coalition that elected in February 2022 against participating
in the pursuit of Title XVI funding; consequently, Santa Fe is not party to this Agreement.
2.In the 1990s, Olivenhain, Leucadia, San Elijo, and Carlsbad jointly pursued federal grant
funding under a cooperative project. These agencies were successful in obtaining
funding via USBR's Title XVI program in the amount of $20 million, which was shared
among the agencies for their respective recycled water projects.
3.As water supplies dwindled and regulations like Senate Bill X7-7 {2009) were
implemented, the importance of expanding recycled water supplies for outdoor
irrigation increased. In 2010, the Coalition was conceived to connect recycled water
sources and markets irrespective of agency boundaries and to maximize the current
recycled water facilities of all agency partners. While the original project in the 1990s
focused on each agency's recycled water supplies, agencies began focusing on
interconnectedness in order to maximize recycled water use. At its outset, the Coalition
consisted of the Parties, Santa Fe, and Vista Irrigation District.
4.In 2010, the Coalition worked with RMC Water and Environment (now Woodard &
Curran) to develop a Regional Recycled Water Facilities Plan to be used in seeking
funding from (1) the federal government, (2) the California Department of Water
Resources via Proposition 84 and the Integrated Regional Water Management (IRWM)
Program, and (3) Metropolitan Water District of Southern California via its Local
Resources Program.
5.To date, the achievement of state grant funds has been successful. The Coalition was
awarded $1.455 million in Proposition 84/IRWM Round 1 funding for design,
engineering, and environmental work on its recycled water projects, including a
Program Environmental Impact Report (EIR) and a USBR-compliant feasibility study. The
Program EIR was certified in 2015, with Olivenhain serving as the lead agency. The
Program EIR was completed at the California Environmental Quality Act Plus (CEQA Plus)
level to allow for ease with the National Environmental Protection Act (NEPA)
compliance, in anticipation of federal funding being awarded, and to allow partners to
achieve compliance for agency specific projects via a clear and concise Addendum
process to the Program EIR.
6.In 2014, the Coalition was awarded $3.452 million in Proposition 84/IRWM Round 2
funding. Each partner received $333,000 grant funding from this 2014 award and
Olivenhain served as the Local Project Sponsor for the Coalition projects.
7.At the federal level, the Coalition entered into an agreement with the Furman Group
(now Bluewater Strategies) in 2011 for legislative outreach efforts in pursuit of federal
funds for the Coalition projects. Participating members of the Coalition also entered into
a Joint Lobbying and Cost Sharing Agreement through which costs for the legislative
outreach effort would be evenly shared. The term for each of these agreements was
one year, and these have since been renewed annually for additional one-year periods.
8.Representatives of the partner agencies traveled to Washington, DC annually to pursue
a federal authorization for the Coalition in the Water Resources Reform and
Development Act (WRRDA). On December 16, 2016, WRRDA was renamed the Water
Infrastructure Improvements for the Nation Act (WIIN) and included the reform and
revitalization of the Title XVI program to a competitive grant program.
9.In 2015, Santa Fe and Escondido, both of which were then nominally members of the
Coalition but neither of which had participated in the federal legislative outreach effort,
signed onto the federal agreement with a buy-in to the cost-sharing agreement,
ensuring that their ultimate investment in the agreement would be equal to that of the
existing partners. The original partners benefited from the cost offset provided by these
buy-in fees, effectively offering each a reduced rate for the duration of the agreement
for services provided by the Furman Group.
10.In early 2017, Vista Irrigation District dropped out of the Coalition, citing the lack of a
viable recycled or reuse project. No consideration or refund was provided to Vista
Irrigation District for past payments. The remaining Coalition partners completed a Title
XVI Feasibility Study for a 2020 Project (which comprised a subset of the facilities in the
Facilities Plan and Program EIR) and submitted it to USBR for review. The Feasibility
Study for the 2020 Project was completed and approved by USBR in May 2017.
11.While the 2015 Program EIR completed by the Coalition was for projects out until 2035,
the 2020 Project's Feasibility Study submitted to the USBR only covers $88 million of
recycled water projects achievable over a 3-to-4-year horizon. Each of the Coalition
partners identified and submitted between $8 to $9 million in recycled water projects
for their own agency for inclusion in the 2020 Project. These projects were specifically
selected for their ability to be completed in the next several years, and their ability to
deliver additional recycled water supplies or to produce additional recycled water at
existing reclamation facilities.
12.On August 27, 2017, the Coalition submitted the 2020 Project to USBR for funding via its
WaterSMART grant program, but the application was unsuccessful. Although not
approved for funding in 2017, Bluewater Strategies indicated that the 2020 Project was
included on the USBR Water Resources and Planning Division's top-scoring projects list.
13.Bluewater Strategies coordinated a debriefing meeting with USBR on January 30, 2018
to discuss the Coalition's Title XVI grant application and determine specific evaluation
criteria categories where the 2020 Project's grant application could be improved for
Title XVI competition.
14.USBR recommendations were incorporated into the Title XVI WIIN grant application
submitted in June 2019. In 2020, the Title XVI process was disrupted when USBR was
unable to issue a solicitation. On December 8, 2020, Olivenhain received notification
from USBR that the 2019 application was not selected to be forwarded to Congress for
approval. Despite a recommendation for funding for the Coalition's application, USBR's
recommendations were discarded in favor of uncompetitive choices at the Office of
Management and Budget (0MB) level.
15.USBR issued another funding opportunity for Title XVI water recycling projects on March
23, 2021; in response, the Coalition submitted an application for $14,456,063 in Title XVI
funds. USBR notified the Coalition in August 2021 that USBR would dedicate $6,100,000
to the 2020 Project.
16.In January 2022, USBR increased the total amount of funding for any one Title XVI WIIN
project from $20 million to $30 million.
17.USBR issued its most recent Title XVI funding opportunity on January 14, 2022. In
response, the Coalition submitted an application for an additional $11,726,953.
18.In early 2022, Santa Fe notified its Coalition partners that it was withdrawing from the
pursuit of federal funding, citing the lack of a viable recycled or reuse project. No
consideration or refund was provided to Santa Fe for past payments.
19.USBR notified the Coalition in August 2022 that the application was successful, and that
USBR would dedicate $17,826,952 to the 2020 Project, in addition to the previous
award of $6,100,000.
20.On behalf of the Coalition, Olivenhain entered in into funding agreement No.
R22AP00518 with USBR for the $6,100,000 FY 2021 award, dated September 8, 2022,
and attached hereto as Exhibit "A" (hereinafter Grant Agreement).
21.A second funding agreement for the $17,826,952 FY 2022 award is expected to be
completed in 2023 and is not included in this FY 2021 Grant Award Subrecipient
Agreement.
22.The 2020 Project will remain eligible for future awards, after execution of the second
funding agreement, of up to $6,073,048 before reaching the $30 million maximum for
any single Title XVI WIIN project. The Coalition's intent is to pursue the $6,073,048 when
future funding opportunities are made available.
COVENANTS
1.Term of Agreement. The term of this Agreement begins on September 8, 2022 and
terminates upon final payment unless otherwise terminated or amended as provided in this
Agreement. However, all work described in the Scope of Work, Section 4, must be completed
by September 30, 2025 unless otherwise amended by USBR.
2.Grant Agreement. Olivenhain has entered into the Grant Agreement with USBR on
behalf of the Parties. The total estimated amount of federal funding is $6,100,000. USBR
estimates its administrative costs associated with NEPA compliance to be $100,000, which it
will withhold from the amount disbursed to Olivenhain; however, if USBR does not expend the
administrative funds in their entirety, the remaining funds may be obligated to Olivenhain.
Therefore, the initial amount of federal funds available is limited to $6,000,000. The $100,000
administrative cost will be divided evenly by the seven Coalition members participating in the
FY 2021 award ($14,286 from each agency's agreed upon share). If Escondido participates in
future funding cycles, Escondido shall contribute its fair share to the administrative costs
($12,500) and $2,041 shall be reallocated from Escondido's share to each of the other seven
agencies. The amount of reimbursable federal grant funding due to each agency under this
Agreement is identified in the table below.
Olivenhain: $857,143
Carlsbad: $786,402
Escondido: $0
Leucadia: $119,304
Oceanside: $2,286,277
Rincon: $236,589
San Elijo: $857,143
Vallecitos: $857,143
Total: $6,000,000
3.Subrecipient Cost Share of Project Costs. At least 75% non-federal cost-share is required
for costs incurred under this Agreement. Based on the budget estimate in the Grant
Agreement, the estimated federal share of allowable costs is 11.41% ($6,100,000) and the
estimated non-federal cost share is 88.59% ($47,281,718). Reimbursement of these costs is
limited to federal cost-share percentage identified in the Grant Agreement.
The federal share of allowable costs shall not be expended in advance of the Parties' non
federal share. It is expected that expenditure of federal and non-federal funds based upon the
estimated cost share percentages shall occur concurrently. At the end of the period of
performance, if the final costs are lower than the original estimate and the 75% non-federal
cost share is met, the final payment and financial report can reflect a lower cost share for the
Parties than the original budget estimate.
Documentation of cost must be submitted to Oliven ha in for inclusion in the invoicing packet
submitted to USBR. A change in the Project's total costs may change the required cost share.
4.Scope of Work. In accordance with Section 5 of the Grant Agreement, Subrecipients
shall complete the tasks shown below no later than the Planned Completion Date:
5.
Subrecipient Task Planned Completion Date
Carlsbad a.Storage tank a.June 2024
Leucadia a.Pipeline a.November 2022
Oceanside a.Pipeline a.June 2024
b.Storage tank b.September 2024
c.Pump station c.September 2024
Rincon a.Pump stations a.September 2024
San Elijo a.Pipeline a.September 2024
b.Service laterals b. September 2024
c.Storage reservoir c.September 2024
d.Pump stations d.September 2024
Vallecitos a.Treatment a.September 2024
Subrecipient Responsibilities. Subrecipients shall carry out the Scope of Work (SOW) in
accordance with the terms and conditions of the Grant Agreement and this Agreement.
Subrecipients shall adhere to federal, state, and local laws, regulations, and codes, as
applicable, and shall obtain all required approvals and permits. Subrecipients are responsible
for construction inspection, oversight, and acceptance. If applicable, Subrecipients shall also
coordinate and obtain approvals from site owners and operators.
Subrecipients acknowledge that construction costs shall not be considered reimbursable until
receipt of a formal Notice to Proceed from USBR upon completion of environmental
compliance activities.
6.Eligible Project Costs. Costs incurred for the performance of this Agreement must be
allowable, allocable to the project, and reasonable. The following regulations, codified within
the Code of Federal Regulations (CFR), governs the allowability of costs for federal financial
assistance:
2 CFR 200 Subpart E, "Cost Principles"
Expenditures forthe performance of this Agreement must conform to the requirements within
this CFR. Subrecipients must maintain sufficient documentation to support these expenditures.
Questions on the allowability, allocability, or reasonableness of costs should be directed to
Olivenhain prior to incurrence of the costs in question; such costs shall not be incurred until
Olivenhain has received determination from USBR as to the allowability, allocability, or
reasonableness of the costs.
Subrecipients shall not incur costs or obligate funds for any purpose pertaining to operation of
the program or activities beyond the expiration date stated in the Agreement. The only costs
which are authorized for a period of up to 120 days following the project period are those
strictly associated with closeout activities for preparation of the final reports.
All costs incurred by Subrecipients under this Agreement must be in accordance with any pre
award clarifications from USBR, as well as with the terms and conditions of this Agreement.
Final determination of the allowability, allocability, or reasonableness of costs incurred under
this Agreement will be made by USBR.
Subrecipients shall be entitled to reimbursement for costs incurred on or after July 1, 2017,
which if had been incurred after the Grant Agreement was entered into, would have been
allowable, allocable, and reasonable under the terms and conditions of the Grant Agreement.
7.Reporting Requirements. For the term of this Agreement, the Parties must submit
regular progress reports in accordance with Section 6.1.3 and Section 10 of the Grant
Agreement. Subrecipients shall submit to Olivenhain semi-annual progress reports which shall
accompany an invoice and all invoice backup documentation; Olivenhain will submit this
information to USBR. A final performance report is required at the conclusion of the
performance period. Subrecipients must provide reporting information to Olivenhain according
to the following schedule:
Report Due to Olivenhain
Progress Report for October 1, 2022 through March 31, 2023 April 22, 2023
Progress Report for April 1, 2023 through September 30, 2023 October 22, 2023
Progress Report for October 1, 2023 through March 31, 2024 April 22, 2024
Progress Report for April 1, 2024 through September 30, 2024 October 22, 2024
Final Report November 30, 2024
8.Single Audit.
A.To satisfy Article II, Section 7 "Audit Requirements" of the Grant Agreement,
Olivenhain requires each Subrecipient to follow the 2 CFR Part 200 Subpart F of the Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
(Uniform Guidance) for audit requirements. The single audit must be submitted to Olivenhain
for transmittal to USBR.
Assistance Listing Number: 15.504 Title XVI Water Reclamation and Reuse
Department: United States Department of the Interior (DOI)
B.Audit and Inspection. Subrecipient agrees to maintain and/or make available
accurate books and accounting records relative to the project under this agreement.
Authorized USBR and Olivenhain representatives shall have the right to monitor, assess, or
evaluate Subrecipient's performance pursuant to this agreement, said monitoring, assessments,
or evaluations to include, but not limited to, audits, inspection of premises, reports, and
interviews of project staff.
C.Monitoring Subrecipient's Performance. Olivenhain may, but is not obligated, to
utilize various methods of audits, reviews, monitoring and inspections to make certain that
Subrecipient is meeting its performance and fiscal operations under this agreement, utilizing
funds received pursuant to this agreement for authorized purposes, and is in compliance with
applicable laws and regulations. Such audits, reviews, monitoring and inspections may include,
but may not be limited to, the following:
i.Meeting with Subrecipient on a periodic basis to review the objectives and performance
required of Subrecipient under this agreement, both in terms of performance for the
project and fiscal responsibility, and to discuss any programmatic or fiscal issues
Subrecipient may have;
ii.Review of Subrecipient's general ledger reports (or related fiscal expense reports) and
other records on a monthly, semi-monthly or quarterly basis;
9.
iii.Periodically perform a fiscal audit of Subrecipient in which Olivenhain reviews two or
more of Subrecipient's invoices, general ledgers, payments, and timesheets related to
the project to ensure that Accounting Principles Generally Accepted are followed by
Su breci pient;
iv.Perform reviews on a periodic basis of Subrecipient's project related record and
documentation to ensure that the goals, objectives and other requirements of this
agreement are followed;
v.Provide follow-up with Subrecipient to discuss any issues or findings from the audits,
reviews, monitoring and inspections that are in need of correction by Subrecipient;
vi.Subrecipient agrees to fully cooperate with Olivenhain and USBR with respect to all
audits, reviews, monitoring and inspections under this agreement.
Costs for Grant Administration and Compliance with the National Environmental
Protection Act. On behalf of the Coalition, Olivenhain entered into an agreement in December
2021 with Woodard & Curran for administration of the grant. Cost sharing for grant
administration support services provided by Woodard & Curran and Olivenhain staff shall be
based on the grant value received by each party which has been designated as 14% Olivenhain,
13% Carlsbad, 0% Escondido, 2% Leucadia, 38% Oceanside, 4% Rincon, 14% San Elijo, and 14%
Vallecitos. The two-year value of Woodard & Curran's grant administration support agreement
is $10,848, and the value of Olivenhain staff's grant administration costs were identified in the
April 2021 grant application as $20,562. The cost share will be as follows:
Olivenhain: $4,487.14
Carlsbad: $4,116.81
Escondido: $0
Leucadia: $624.56
Oceanside: $11,968.66
Rincon: $1,238.54
San Elijo: $4,487.14
Vallecitos: $4,487.14
Total: $31,410
The December 2021 agreement also retains Woodard & Curran for the purpose of working with
USBR to achieve compliance with the National Environmental Protection Act. Woodard &
Curran's costs for NEPA compliance are not to exceed $108,550. NEPA compliance costs are to
be divided evenly among the eight Parties ($13,568.75 each). Woodard & Curran will bill
Olivenhain for these services monthly, and Olivenhain will invoice Subrecipients.
Olivenhain shall act as the administrator for the December 2021 agreement with Woodard &
Curran. Oliven ha in shall have no obligation to advance funds to Woodard & Curran on behalf of
the other parties if funds are not deposited in a timely manner with Oliven ha in. Olivenhain will
administer the Woodard & Curran grant administration support agreement as a convenience
only and assumes no other responsibility under said contract on behalf of the other parties.
Olivenhain shall receive monthly reports from Woodard & Curran and share them with the
other parties. All Parties may agree to meet with Woodard & Curran for consultation and
reports as needed or requested.
All Parties shall have the right to comment on all Woodard & Curran invoices, payments to
Woodard & Curran, and fund requests and request corrections thereto if necessary.
10.Disbursement of Grant Funds from USBR via Olivenhain. Pursuant to Section 11 and
subject to the availability of funds disbursed to Oliven ha in by USBR, Oliven ha in will release to
Subrecipients the approved amounts of grant reimbursement. 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, rules, or regulations, or which
may require any rebates to the federal government, or any loss of tax-free status on state
bonds, pursuant to any federal statute or regulation. Any and all money disbursed to
Subrecipients under this Agreement shall be used solely to pay Eligible Project Costs.
11.Method of Payment for Reimbursement. After the disbursement requirements in
Section 10 are met, Olivenhain will disburse the whole or portions of the grant funding received
from USBR, following receipt from Subrecipients of an invoice for costs incurred, including Cost
Share, and timely progress reports as required by Section 7. Payment will be made no more
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frequently than quarterly in arrears, upon receipt of an invoice. Invoice shall follow the format
of Standard Form 425: Federal Financial Report. Progress reports must accompany an invoice
{$0 invoices are acceptable) and shall be submitted according to the schedule identified in
Section 7. Olivenhain will notify Subrecipients, in a timely manner, whenever, upon review of
an invoice, Olivenhain or USBR determines that any portion or portions of the costs claimed are
not eligible costs or are not supported by documentation or receipts acceptable to USBR.
Subrecipients may, within seven {7) calendar days of the date of receipt of such notice, submit
additional documentation to Olivenhain to cure such deficiency(ies). If Subrecipients fail to
submit adequate documentation curing the deficiency(ies), Olivenhain or USBR will adjust the
pending invoice by the amount of ineligible or unapproved costs.
Invoices submitted by Subrecipients shall include costs incurred for work performed in
implementing the Scope of Work during the period identified in the particular invoice; shall be
itemized based on the categories (i.e., tasks) specified in Section 7.1 of the Grant Agreement;
shall be accompanied by sufficient evidence {i.e., receipts, copies of checks, personnel hours
summary table, time sheets) for all costs included in the invoice; and shall clearly delineate
those costs claimed for reimbursement from the grant funding amount, and those costs that
represent the Subrecipient's costs.
All invoices submitted shall be accurate and signed under penalty of law. Any and all costs
submitted pursuant to this Agreement shall only be for the tasks set forth herein. Subrecipients
shall not submit any invoice containing costs that are ineligible or have been reimbursed from
other funding sources unless required and specifically noted as such {i.e., cost share). Any
eligible costs for which Subrecipients seek reimbursement shall not be reimbursed from any
other source without prior approval by Olivenhain and USBR. Double or multiple billing for
time, services, or any other eligible cost is illegal and constitutes fraud. Any suspected
occurrences of fraud, forgery, embezzlement, theft, or any other misuse of public funds may
result in suspension of disbursements of grant funds and/or termination of the Subrecipient's
participation in this Agreement requiring the repayment of all funds disbursed hereunder plus
interest. Additionally, Olivenhain and/or USBR may request an audit and refer the matter to the
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Attorney General's Office or the appropriate district attorney's office for criminal prosecution
or the imposition of civil liability. (Civ. Code,§§ 1572-1573; Pen. Code,§§ 470, 487-489.)
12.Revisions and Amendments. In accordance with Section 7.5 of the Grant Agreement and
2 CFR 200.308(h), Subrecipients must request prior written approval for a change in the
approved scope of work or associated tasks, even if there are no associated budget revisions;
revisions which require additional federal funds to complete the project; and/or revisions which
involve specific costs for which prior written approval requirements may be imposed consistent
with 0MB cost principles listed in 2 CFR 200 Subpart E "Cost Principles".
The Parties understand and acknowledge that any changes to the Grant Agreement shall be
made by means of a written amendment in accordance with Section 7.6 of the Grant
Agreement. USBR may make changes to the Grant Agreement by means of a unilateral
amendment to address changes in address, no-cost time extensions, changes to Key Personnel,
the addition of previously agreed upon funding, or administrative corrections which do not
impact the terms and conditions of the Grant Agreement. Additionally, a unilateral amendment
may be utilized by USBR if it should become necessary to suspend or terminate the Agreement
in accordance with 2 CFR 200.340.
All other changes shall be made by means of an amendment to the Grant Agreement. No oral
statement made by any person, or written statement by any person other than an authorized
representative of USBR, shall be allowed in any manner or degree to amend, modify, or
otherwise effect the terms of the Agreement.
All requests by Subrecipients for amendment of the Grant Agreement shall be made in writing
to Olivenhain, providing a full description of the reason for the request. Any request for project
period extension shall be made at least 75 days prior to the end of the project period of the
Grant Agreement or the project period date of any extension that may have been previously
granted. Any determination to extend the project period or to provide follow-on funding for
continuation of a project is solely at the discretion of USBR.
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Any and all costs associated with amendment(s) to the Grant Agreement are to be borne by the
Subrecipient requesting the amendment.
13.Regulatory Compliance. Subrecipients agree to comply or assist with all regulatory
compliance requirements and all applicable state, federal, and local environmental and cultural
and paleontological resource protection laws and regulations as applicable to this project.
These may include, but are not limited to NEPA, including the Council on Environmental Quality
and Department of the Interior regulations implementing NEPA, the Clean Water Act, the
Endangered Species Act, consultation with potentially affected tribes, and consultation with the
State Historic Preservation Office. If Subrecipients begin project activities that require
environmental or other regulatory compliance approval prior to receipt of written notice from
USBR that all such clearances have been obtained, then USBR reserves the right to initiate
remedies for non-compliance as defined by 2 CFR 200.340 up to and including unilateral
termination of the Grant Agreement.
14.Buy America Domestic Procurement Preference. The Parties understand and
acknowledge that, in accordance with Section 12 of the Grant Agreement and Section 70914 of
the Bipartisan Infrastructure Law (also known as the Infrastructure Investment and Jobs Act),
P.L. 117-58, all of the iron, steel, manufactured products, and construction materials used in
completing the Scope of Work must be produced in the United States, unless subject to an
approved waiver. The Parties are seeking from USBR a waiver from Buy America Domestic
Procurement requirements for projects for which construction was already in progress or
completed prior to the effective date of this Agreement; though it is expected that USBR will
approve the waiver, the Parties understand that the waiver has not yet been granted. The
requirements of this section must be included in all contracts and purchase orders for work or
products under this Agreement for which a waiver has not been granted.
15.Standard Terms and Conditions. The Parties understand and agree to adhere to all
applicable USBR Standard Terms and Conditions, located in Article II of the Grant Agreement,
and to all applicable Department of the Interior Standard Award Terms and Conditions, located
in Article Ill of the Grant Agreement.
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16.Future Grant Awards.
A.FY 2022 Grant Agreement. The Parties have secured an additional award of Title
XVI funds from USBR in the amount of $17,826,952. USBR expects to make available in 2023 a
grant agreement associated with this award. On behalf of the Parties, Oliven ha in will enter into
the 2023 grant agreement with USBR. Before funds associated with the 2023 grant agreement
will be disbursed to Subrecipients, the Parties will adopt an amendment to this Agreement
conveying applicable terms of the 2023 grant agreement to Subrecipients. Costs associated
with future grant administration support agreements with Woodard & Curran or a comparably
qualified firm will be divided among the Parties proportional to the amount of grant funds
requested by each party in the 2023 grant agreement.
B.Future Award(s). The maximum amount of funding for any one Title XVI WIIN
project is $30,000,000. As USBR has committed $23,926,952 to the 2020 Project so far, the
2020 Project is eligible for an additional award or awards totaling $6,073,048. When future Title
XVI funding opportunities are made available by°USBR, the Parties will apply for an additional
award or awards of $6,073,048. Costs associated with the application will be divided among the
Parties proportional to the amount of grant funds requested by each party in the application.
C Division of Grant Awards. Each party is entitled to a one-eighth share of the
cumulative $30,000,000 award less withholdings by USBR. In the event that a party is unable to
accept the full one-eighth share for any reason, that party may notify the other Parties of its
intent to reassign a portion of the one-eighth share to other Parties. Reassigned funds may be
accepted on a pro-rata basis by any party demonstrating that its project costs are sufficient to
meet cost-share requirements associated with a larger portion of cumulative award. Parties
accepting reassigned funds must reimburse the reassigning party for a pro-rata share of all
costs incurred by the assigning party under the Joint Lobbying and Cost Sharing Agreement, as
amended, unless other terms are mutually agreed upon by the reassigning party and the party
accepting reassigned funds.
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D.Withdrawal from Participation. In the event that any party to this Agreement
notifies all other Parties in writing of its intent to terminate participation in future grant awards,
no refunds of any monies already paid will be reimbursed and the party will have no further
interest or right in this Agreement or the federal or state funding being pursued. The remaining
Parties agree to adjust their future cost sharing on an equal basis or otherwise mutually agreed
upon basis among the remaining Parties.
17.Future Project. Upon receipt of the future award(s) described in Section 16.B., or should
the Parties choose not to pursue the future award(s) described in Section 16.B., Parties will
retain a consultant to develop a Title XVI-compliant feasibility study for the Regional Recycled
Water Program's 2035 Project.
18.Insurance.
A.Each Subrecipient shall procure and maintain during the period of performance of
this Agreement insurance from insurance companies admitted to do business in the
State of California, as set forth in this section or as additionally required by
supplemental condition. An approved combination of pooled and self-insurance
coverage is an acceptable alternative for general liability, automobile coverage, or
workers compensation. These policies shall be primary insurance as to Olivenhain so
that any other coverage held by Olivenhain shall not contribute to any loss under
Subrecipient's insurance. Coverage may be provided by a combination of primary and
excess insurance policies, provided all insurers meet the requirements of this section.
B.All insurance shall cover occurrences during the coverage period.
C.The coverage amount of each policy of insurance shall be as required by Olivenhain.
i.The following insurance and limits are required for the contract:
Commercial General Liability: Coverage at least as broad as ISO form GC
00 0110 01
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Limit per occurrence: $2,000,000
D.The insurance policies shall be endorsed as follows:
i.For the general commercial liability as well as excess or umbrella insurance
covering risks within the scope of that type of insurance, Oliven ha in, its
directors, officers, employees and agents are included as additional insureds
with regard to liability and defense of suits or claims arising from the operations,
products and activities performed by or on behalf of the named insured. The
Subrecipient's insurance applies separately to each insured, including insureds
added pursuant to this paragraph, against whom claim is made or suit is brought
except with respect to the policy limits of liability. The inclusion of any person or
entity as an insured shall not affect any right which the person or entity would
have as a claimant if not so included. Any failure of the named insured to comply
with reporting provisions of the policy or breaches or violations of warranties
shall not affect coverage provided to the insureds added pursuant to this
paragraph. The additional insured endorsement shall provide coverage at least
as broad as ISO form CG 20 10 10 93.
ii.The Subrecipient's insurance shall be primary. Any other insurance or self
insurance available to Olivenhain or persons stated in paragraph (i) shall be in
excess of and shall not contribute to the contractor's insurance.
iii.The insurance shall not be canceled or materially reduced in coverage except
after 30 days prior written notice receipted delivery has been given to
Olivenhain, except 10 days' notice shall be allowed for non-payment of
premium.
E.Unless otherwise specified, the insurance shall be provided by an acceptable
insurance provider, as determined by Olivenhain, which satisfies the following minimum
requirements: An insurance carrier admitted to do business in California and
maintaining an agent for process within the State of California. Such insurance carrier
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shall maintain a current A.M. Best rating classification of" A-" (A minus) or better and a
financial size of $10 million to $24 million (Class V) or better, or a Lloyds of London
program provided by syndicates of Lloyds of London and other London insurance
carriers, providing all participants are qualified to do business in California and the
policy provides for an agent for process in the State of California and the program
assures a financial capability at least equal to the required classification and size for
admitted insurers.
F.Certificates of insurance and endorsements shall be provided by the Subrecipient and
approved by Olivenhain before execution of the contract. Endorsements may be
provided on forms provided by Olivenhain, or substantially equivalent forms provided
by the insurer. All consultants/ contractors performing the scope of work on behalf of
the Subrecipient shall name Olivenhain (including its directors, officers, employees, and
agents) as an additional insured on their Commercial General Liability policy and the
policy shall be endorsed with use of an ISO form CG 20 10 10 93 or equivalent.
G.Nothing in this Agreement shall preclude Subrecipient from self-insuring all or part of
the insurance requirements in this Section. However, Subrecipient shall provide proof of
self-insurance, in a form acceptable to Olivenhain.
19.Indemnification.
A.To the fullest extent permitted by law, each Subrecipient shall (1) immediately
defend, and (2) indemnify and hold harmless Olivenhain and its directors, officers, and
employees from and against all liabilities including inverse condemnation regardless of
nature or type arising out of or resulting from Subrecipient's performance of services
under this contract, or any negligent or wrongful act or omission of the Subrecipient or
Subrecipient's officers, employees, agents, or subcontractors. Liabilities subject to the
duties to defend and indemnify include, without limitation all claims, losses, damages,
penalties, fines, and judgments; associated investigation and administrative expenses;
defense costs, including but not limited to reasonable attorneys' fees; court costs; and
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costs of alternative dispute resolution. The Subrecipient's obligation to indemnify
applies unless it is adjudicated that its liability was caused by the sole negligence or
willful misconduct of an indemnified party. If it is finally adjudicated that liability is
caused by the comparative active negligence or willful misconduct of an indemnified
party, the Subrecipient indemnification obligation shall be reduced in proportion to the
established comparative liability of the indemnified party.
B.The duty to defend is a separate and distinct obligation from the Subrecipient's duty
to indemnify. The Subrecipient shall be obligated to defend, in all legal, equitable,
administrative, or special proceedings, with counsel approved by Olivenhain and its
directors, officers, and employees, immediately upon tender to the Subrecipient of the
claim in any form or at any stage of an action or proceeding, whether or not liability is
established. An allegation or determination of comparative active negligence or willful
misconduct by an indemnified party does not relieve the Subrecipient from its separate
and distinct obligation to defend Olivenhain. The obligation to defend extends through
final judgment, including exhaustion of any appeals.
C.The review, acceptance, or approval of Subrecipient's work or work product by any
indemnified party shall not affect, relieve, or reduce Subrecipient's indemnification or
defense obligations. This section survives completion of the services or the termination
of this contract. The provisions of this section are not limited by and do not affect the
provisions of this contract relating to insurance.
D.Subrecipient shall require its contractors or subcontractors to name Olivenhain, its
officers, agents, and employees as additional insured on their liability insurance for
activities undertaken pursuant to this Agreement.
20.Miscellaneous Provisions.
20.1 California Law Governs. This Agreement shall by governed by California law.
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20.2 Jurisdiction and Venue. In the event of any legal or equitable proceeding to
enforce or interpret the terms and conditions of this Agreement, the Parties agree that
jurisdiction and venue shall lie only in the federal or state courts in or nearest to the North
County Judicial District, County of San Diego, State of California.
20.3 Modification. This Agreement may not be altered in whole or in part except by a
written modification approved by the Board of Directors of Olivenhain and executed by all the
Parties to this Agreement.
20.4 Attorneys' Fees. In the event any arbitration, action or proceeding is initiated to
challenge, invalidate, enforce or interpret any of the terms of this Agreement, the prevailing
party shall be entitled to all attorneys' fees, all expert fees and costs, and all litigation fees,
costs, and expenses in addition to any other relief granted by law. This provision shall apply to
the entire Agreement.
20.5 Entire Agreement. This Agreement, together with all exhibits attached hereto,
contains all representations and the entire understanding between the Parties with respect to
the subject matter of this Agreement. Any prior correspondence, memoranda, or agreements,
whether or not such correspondence, memoranda or agreements are in conflict with this
Agreement, are intended to be replaced in total by this Agreement and its exhibits. The Parties
warrant and represent that no party representative has made any oral representations or oral
agreements not contained in this Agreement. The Parties further warrant and represent that
no party has relied upon any oral statements or promises made by any other party's
representative or agent in executing this Agreement. The Parties mutually declare that this
Agreement and its exhibits constitute a final, complete, and integrated agreement between the
Parties.
20.6 Prohibition on Assignment. None of the Parties shall be entitled to assign or
transfer all or any portion of its rights or obligations in this Agreement without obtaining the
express prior written consent of other Parties. No party shall have obligation to give its consent
to any assignment and may deny any requested assignment, in its sole discretion.
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20.7 Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the Parties and on their respective purchasers, successors, heirs, and assigns.
20.8 Unenforceable Provisions. The terms, conditions, and covenants of this
Agreement shall be construed whenever possible as consistent with all applicable laws and
regulations. To the extent that any provision of this Agreement, as so interpreted, is held to
violate any applicable law or regulation, the remaining provisions shall nevertheless be carried
into full force and effect and remain enforceable.
20.9 Representation of Capacity to Contract. Each party to this Agreement represents
and warrants that he or she has the authority to execute this Agreement on behalf of the entity
represented by that individual. This representation is a material term of this Agreement.
20.10 Opportunity to be Represented by Independent Counsel. Each of the Parties to
this Agreement warrants and represents that it has been advised to consult independent
counsel of its own choosing and has had a reasonable opportunity to do so prior to executing
this Agreement.
20.11 No Waiver. The failure of any party to enforce any term, covenant or condition
of this Agreement on the date it is to be performed shall not be construed as a waiver of that
party's right to enforce this, or any other, term, covenant, or condition of this Agreement at any
later date or as a waiver of any term, covenant, or condition of this Agreement. No waiver shall
occur unless the waiver is expressly stated in writing and signed by the person for the party
having the authority to expressly waive the benefit or provision, in writing. No oral waivers
shall be effective against any party.
20.12 No Joint Venture and No Third Party Beneficiaries. Nothing in this Agreement is
intended to create a joint venture, partnership, or common enterprise relationship of any kind
between the Parties. No third parties shall be construed as beneficiaries of any term, covenant,
or provision of this Agreement.
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20.13 Time of Essence. The Parties agree that time is of the essence as to all matters
specified in this Agreement. The Parties mutually declare that this is a material term of this
Agreement.
20.14 Notices. All letters, statements, or notices required pursuant to this Agreement
shall be deemed effective upon receipt when personally served, or sent certified mail, return
receipt requested, to the following addresses:
To: "Olivenhain"
Attn: General Manager
1966 Olivenhain Road
Encinitas, California 92024
To: "Carlsbad"
Attn: General Manager
1635 Faraday Avenue
Carlsbad, California 92008
To: "Escondido"
Attn: Director of Utilities
201 North Broadway
Escondido, California 92025
To: "Leucadia"
Attn: General Manager
1960 La Costa Avenue
Carlsbad, California 92009
To: "Oceanside"
Attn: Water Utilities Director
300 North Coast Highway
Oceanside, California 92054
To: "Rincon"
Attn: General Manager
1920 North Iris Lane
Escondido, California 92027
To: "SEJPA"
Attn: General Manager
2695 Manchester Avenue
22
Cardiff, California 92007
To: "Vallecitos"
Attn: General Manage r
201 Vallecitos de Oro
San Marcos, Ca lifornia 92069
20.15 Effective Date. The effect ive date of this Agreement executed in counterparts in
Encin itas, California, w ithin the North County Judicial District, County of San Diego, State of
California, is Septembe r 8, 2022.
DATED: OLIVENHAIN MUNICIPAL WATER DISTRICT -------
By:
Kimberly A. Thorner, General Manager
DATED: _____ _ CARLSBAD MUNICIPAL WATER DISTRICT
By:
Vicki Quiram, General Manager
DATED: _____ _ CITY OF ESCONDIDO
By:
Christopher W. McKinney, Director of Utilities
DATED: _____ _ LEUCADIA WASTEWATER DISTRICT
By:
Paul Bushee, General Manager
DATED: _____ _ CITY OF OCEANSIDE
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By:
Lindsay Leahy, Water Utilities Director
DATED: _____ _ RINCON DEL DIABLO MUNICIPAL WATER DISTRICT
By:
Clint Baze, General Manager
DATED: _____ _ SAN ELIJO JOINT POWERS AUTHORITY
By:
Michael Thornton, General Manager
DATED: _____ _ VALLECITOS WATER DISTRICT
By:
Glenn Pruim, General Manager
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