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HomeMy WebLinkAboutC-4451 P,(LIS )1ir41.V\jkj)-- C -k5'\ San Gabriel Basin Water Quality Authority \\(3U -'% PROPOSITION 68 SUBRECIPIENT GRANT AGREEMENT (Subaward Recipient: Arcadia) THIS PROPOSITION 68 SUBRECIPIENT GRANT AGREEMENT (the "Agreement") is dated this 17 day of August 2021, between the San Gabriel Basin Water Quality Authority, an agency of the State of California ("WQA"), on one hand, and the City of Arcadia, on the other hand("Subrecipient"). (WQA and Subrecipient are sometimes referred to herein individually as a"Party"and collectively as the"Parties.") RECITALS WHEREAS, the California State Water Resources Control Board ("State Water Board") is authorized, and implements its authority, to provide financial assistance pursuant to Section 80141 of the Public Resources Code, and Resolution No. 2019-0041; and WHEREAS, the State Water Board Division of Financial Assistance has awarded the WQA approximately $31,593,750. in Proposition 68 Grant Funds for its San Gabriel Basin Regional Groundwater RemediationProgram application("Application")so that the WQA may undertake work required for groundwater clean-up andmonitoring operations within the WQA's jurisdiction; and WHEREAS, Subrecipient provided cost estimates of their eligible project operations and activities for inclusion into the Application; and WHEREAS, WQA negotiated with the State Water Board to allow for the required 50%matching fund obligation to be satisfied with non-Subrecipient project funding; and WHEREAS, under the terms of the State Water Board Division of Financial Assistance Proposition 68 Grant program, the WQA has executed a grant funding agreement with the State Water Board entitled "Operations and Maintenance Grant,"Agreement No.D2012538. dated August 6,2021 (the"Master Agreement"); and WHEREAS, the WQA desires to pass through the proceeds of the Proposition 68 grant to provide financial assistance based on the Subrecipient's eligible estimated costs contained in the Application. AGREEMENT A. TERM.This Agreement shall commence upon the date it is executed by all of the Parties("Effective Date") and shall expire upon the expiration date of the Master Agreement. B. ELLIGIBLE WORK START DATE. No costs incurred prior to the Eligible Work Start Date are eligible for reimbursement. For purposes of this Agreement the term "Eligible Work Start Date" means July 1, 2018. C. WORK COMPLETION DATE. No costs incurred after the Work Completion Date are eligible for reimbursement.For the purposes of this Agreement the term"Work Completion Date"means February 28, 2023. D. SCOPE OF WORK. The funds disbursed under this Agreement ("Project Funds") may be used only for those eligible operation and maintenance costs and expenses for the projects attached hereto as Exhibit "A". Neither the WQA nor the State Water Board shall be under any obligation to disburse funds for purposes other than those set forth in Exhibit A. E. SIGNAGE. The subrecipient shall place a sign at least four(4) feet tall by eight(8) feet wide make of 3/4 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 project implementation. The sign must include the following disclosure state and color logos of the State Water Board, Proposition 68 and WQA provided by WQA. 1. "Funding for this project has been provided in full or in part by Proposition 68 — the California, Drought, Water, Parks, Climate, Coastal Protection, and Outdoor Access For All Act of 2018 through an agreement with the State Water Resources Control Board." PROP 68 Water Boards c L,e,'� 2. :. .ean_u Q L r Au Lora, F. FUNDING AMOUNTS AND DISBURSEMENTS.If the Master Agreement's funding for any Fiscal Year expires due to reversion or is reduced, substantially delayed, or deleted by the Budget Act, by Executive Order,or by order or action of the Department of Finance,the WQA has the option,in its sole and absolute discretion,to either cancel this Agreement with no liability accruing to the WQA,or offer anamendment to the Subrecipient to reflect the reduced amount. G. BUDGETED COSTS.Budgeted costs are contained in Table 1 below: LINE ITEM Live Oak Treatment Longden Treatment Direct Project Administration $0 $0 Costs Planning/Design/Engineering/ $0 $7,000 Environmental Implementation $1,579,000 $651,000 Monitoring/Performance $70,000 $11,000 Education/Outreach $0 $0 TOTAL $1,649,000 $669,000 1. The budgeted costs contained in Table 1 were based on project cost estimates provided to WQA by the Subrecipient in December 2019 and were subsequently submitted by WQA as part of the Application in January 2020. Since the State Water Board awarded the funding based on these project cost estimates,the budgeted costs contained in Table 1 represent the maximum amount of Project Funds available in each cost subcategory under this Agreement. 2 2. In the event the Subrecipient does not submit requests for Project Funds ("Reimbursement Requests") for all funds encumbered under this Agreement by March 31, 2023, the Final Reimbursement Request Date, any remaining funds revert to the State Water Board as provided under the Master Agreement. The WQA may notify the Subrecipient that the project file is closed, and any remaining balance will be disencumbered and unavailable for further use under the Agreement. H. CONTINGENT DISBURSEMENT. 1. The WQA's disbursement of funds hereunder is contingent on the Subrecipient's compliance with the terms and conditions of this Agreement. 2. Reimbursement Requests may not include the Subrecipient's Indirect Costs. For purposes of this Agreement,the term "Indirect Costs"means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the Project(i.e., costs that are not directly related to the Project). 3. Any Reimbursement Request submitted that includes Indirect Costs or other ineligible costs may cause that Reimbursement Request, in its entirety,to be disputed and will not be paid until the dispute is resolved. 4. The WQA's obligation to disburse Project Funds is contingent upon the availability of sufficient funds to permit the disbursements provided for herein.If sufficient funds are not available for any reason including,but not limited to, failure of the federal or State government to appropriate funds necessary for disbursement of Project Funds,the WQA shall not be obligated to make any disbursements to the Recipient under this Agreement.This provision shall be construed as a condition precedent to the obligation of the WQA to make any disbursements under this Agreement. Nothing in this Agreement shall be construed to provide the Subrecipient with a right of priority for disbursement over any other entity. If any disbursements due the Subrecipient under this Agreement are deferred because sufficient funds are unavailable,it is the intention of the WQA that such disbursement will be made to the Subrecipient when sufficient funds do become available,but this intention is not binding. 5. Failure to proceed according to the timelines set forth in this Agreement may require the Subrecipient to repay to the WQA all disbursed Project Funds. I. REIMBURSEMENT PROCEDURE. Except as may be otherwise provided in this Agreement, reimbursement of Project Funds will be made as follows: 1. Upon execution and delivery of this Agreement, the Subrecipient may submit a Reimbursement Request for eligible Project Costs as specified in this Agreement to the WQA using the Reimbursement Request forms provided by the WQA. Reimbursement Requests must be itemized based on the line items specified in Table 1 of Section F this Agreement.Reimbursement Requests must be complete,signed by the Subrecipient's authorized representative or his/her designee,and addressed to the WQA. Reimbursement Requests submitted in any other format than the one provided herein will cause a Reimbursement Request to be disputed. In the event of such a dispute,the WQA will notify the Subrecipient. Payment will not 3 be made until the dispute is resolved. As a condition to any such dispute resolution WQA reserves the right to request a corrected Reimbursement Request. 2. Project Funds must be requested quarterly via Reimbursement Request for eligible costs incurred during the reporting period of the corresponding Progress Report, describing the activities and expenditures for which the reimbursement is being requested. 3. The Subrecipient agrees that it will not submit any Reimbursement Requests that include any Project Costs until such cost has been incurred and is currently due and payable by the Subrecipient,although the actual payment of such cost by the Subrecipient is not required as a condition of Reimbursement Request. Supporting documentation(e.g.,receipts, laboratory invoices)must be submitted with each Reimbursement Request. The amount requested for administration costs must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = totalamount claimed). Reimbursement of Project Funds will be made only after receipt of a complete,adequately supported, properly documented and accurately addressed Reimbursement Request. 4. The Subrecipient will not seek reimbursement of any Project Costs that have been reimbursed from other funding sources. 5. The Subrecipient shall use Project Funds within thirty (30) days of receipt to reimburse contractors, vendors,and other Project Costs. Any interest earned on Project Funds shall be reported to the WQA and will either be required to be returned to the WQA or deducted from future reimbursements.In the event that the Subrecipient fails to disburse Project Funds to contractors or vendors within thirty(30) days from receipt of the Project Funds, the Subrecipient shall immediatelyreturn such Project Funds to the WQA. Interest shall accrue on such Project Funds from the date of reimbursement through the date of mailing of Project Funds to the WQA. If the Subrecipient held such Project Funds in interest- bearing accounts, any interest earned on the Project Funds shall alsobe due to the WQA. 6. The Subrecipient must submit its final Reimbursement Request no later than the FinalReimbursement Request Date in Section G.2., unless prior approval is granted by the WQA. If the Subrecipient fails to do so,then the undisbursed balance of this Agreement may be de-obligated. 7. The Subrecipient agrees that it will not request a reimbursement unless that cost is allowable, reasonable,and allocable. 8. Notwithstanding any other provision of this Agreement, no reimbursement shall be required at any time or in any manner that is in violation of or in conflict with federal or State laws, policies, or regulations. 9. The Subrecipient agrees that it shall not be entitled to interest earned on undisbursed Project Funds. 10. No work or travel outside the State of California is permitted under this Agreement unless the WQA provides prior written authorization. Failure to comply with this restriction may result in termination of this Agreement.Any reimbursement for necessary travel and per diem shall be at rates not to exceed those set by the California Department of Human Resources at 4 http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. as of the date costs are incurred by the Subrecipient. 11. The Subrecipient must include any other documents or requests required or allowed under this Agreement. J. WITHOLDING DISBURSEMENTS. Notwithstanding any other provision of this Agreement, the WQA may withhold all or any portion of the Project Funding Amount upon the occurrence of any of the following events: 1. The Subrecipient's failure to maintain reasonable progress on the Project as determined by the WQA; 2. Commencement of litigation or a judicial or administrative proceeding related to the Project, that the WQA or State Water Board determines may impair the timely satisfaction of the Subrecipient's obligations under this Agreement; 3. Any investigation by State, local, or federal investigators or auditors, or a grand jury, relating to the Subrecipient's financial management,accounting procedures,or internal fiscal controls; 4. A material adverse change in the condition of the Subrecipient, or the Project, that the WQA determines would materially impair the Subrecipient's ability to satisfy its obligations under this Agreement, or any other event that the WQA determines would materially impair the Subrecipient's ability to satisfy its obligations under this Agreement; 5. The Subrecipient's material violation of,or threat to materially violate,any tern of this Agreement; 6. Reasonable suspicion of fraud, forgery, embezzlement, theft, or any other misuse of public funds by the Subrecipient or its employees,or by its contractors or agents regarding the Project; 7. An event requiring notice under this Agreement; or 8. An Event of Default or an event that the WQA determines may become an Event of Default. K. FRAUD AND MISUSE OF PUBLIC FUNDS. All Reimbursement Requests submitted must be accurate and signed by the Subrecipient's Authorized Representative under penalty of perjury. All costs submitted pursuant to this Agreement must only be for the work or tasks set forth in this Agreement.The Subrecipient must not submit any Reimbursement Request containing costs that are ineligible or have been reimbursed from other funding sources unless required and specifically noted as such(i.e.,match costs).Any costs for which the Subrecipient is seeking reimbursement shall not be reimbursed from any other source.Double or multiple billing for time, services,or any other eligible cost is improper and will not be compensated. Any suspected occurrences of fraud, forgery, embezzlement, theft, or any other misuse of public funds may result in suspension of disbursements and, notwithstanding any other section in this Agreement, the termination of this Agreement requiring the repayment of all Project Funds disbursed hereunder. Additionally, WQA or the State Water Board may request an audit and refer the matter to the Attorney General's Office or the appropriate district attorney's office for criminal prosecution or the imposition of civil liability. L. SUBRECIPIENT'S PAYMENT OBLIGATION. The Subrecipient must pay any and all costs connected with the Project including,without limitation, any and all Project Costs and Additional Payments. If the 5 Project Funds are not sufficient to pay the Project Costs in full, the Recipient must 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 WQA. M. COMPLIANCE WITH GENERAL AND PROGRAMMATIC TERMS OF GRANT FUNDING PROGRAM. Subrecipient shall comply with all conditions,duties, requirements and restrictions imposed upon the WQA under the Proposition 68 "General and Programmatic Terms and Conditions" attached as Exhibit C to the Master Agreement. N. INDEMNIFICATION.To the fullest extent permitted by law, Subrecipient shall indemnify,hold harmless and defend the WQA and WQA's officials, officers, employees and agents (collectively, the "WQA Indemnitees") from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys' fees, expert fees and all other costs and fees of litigation)of every nature arising out of or in connection with Subrecipient's performance under this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole negligence or willful misconduct of the WQA Indemnitees. O. EVENT OF DEFAULT; BREACH OF AGREEMENT. 1. In the event either Party fails to perform any duty, obligation, service or task set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation, service or task set forth under this Agreement), an event of default (hereinafter, "Event of Default") shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a "Default Notice") which shall specify: (i) the nature of the Event of Default; (ii)the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement. 2. Subrecipient shall cure the following Events of Defaults within the following time periods: i. Within three (3) business days of WQA's issuance of a Default Notice for any failure of Subrecipient to timely provide WQA with any information and/or written reports, documentation or work product which Subrecipient is obligated to provide to WQA under this Agreement or applicable law.Prior to the expiration of the 3-day cure period,Subrecipient may submit a written request for additional time to cure the Event of Default upon a showing that Subrecipient has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 3-day cure period.The foregoing notwithstanding,WQA shall be under no obligation to grant additional time for the cure of an Event of Default under this subsection N.2.i.that exceeds seven(7)calendar days from the end of the initial 3-day cure period; or ii. Within fourteen(14)calendar days of WQA's issuance of a Default Notice for any other Event of Default under this Agreement.Prior to the expiration of the 14-day cure period,Subrecipient may submit a written request for additional time to cure the Event of Default upon a showing that Subrecipient has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 14-day cure period. The foregoing notwithstanding,WQA shall be under no obligation to grant additional time for the cure of an Event of Default under this Section N.2.ii that exceeds thirty(30) calendar days from the end of the initial 14-day cure period. 6 In addition to any other failure on the part of Subrecipient to perform any duty,obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty,obligation,service or task),an Event of Default on the part of Subrecipient shall include, but shall not be limited to the following: (i) Subrecipient's refusal or failure to perform any of the services or tasks called for under the Scope of Work; (ii)Subrecipient's failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) Subrecipient's and/or its employees' disregard or violation of any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to Subrecipient,whether voluntary of involuntary; (v) Subrecipient's refusal or failure to perform or observe any covenant, condition, obligation or provision of this Agreement; and/or (vii)WQA's discovery that a statement representation or warranty by Subrecipient relating to this Agreement is false,misleading or erroneous in any material respect. 3. WQA shall cure any Event of Default asserted by Subrecipient within sixty(60) calendar days of SUBRECIPIENT's issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 60-day cure period. Prior to the expiration of the 60-day cure period, WQA may submit a written request for additional time to cure the Event of Default upon a showing that WQA has commenced its efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 60-day cure period. 4. WQA, in its sole and absolute discretion, may also immediately suspend this Agreement pending Subrecipient's cure of any Event of Default by giving Subrecipient written notice of WQA's intent to suspend Subrecipient's performance (hereinafter, a"Suspension Notice"). WQA may issue the Suspension Notice at any time upon the occurrence of an Event of Default.Upon such suspension, Subrecipient shall be compensated only for those services and tasks which have been rendered by Subrecipient to the reasonable satisfaction of WQA up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of WQA shall operate to prohibit or otherwise restrict WQA's ability to suspend this Agreement as provided herein. 5. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom,estoppel, or otherwise. 6. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties,obligations,rights and remedies otherwise imposed or available by law. In addition to any other remedies available to WQA at law or under this Agreement in the event of any breach of this Agreement,WQA,in its sole and absolute discretion,may also pursue any one or more of the following remedies: i. Upon written notice to Subrecipient,the WQA may immediately terminate this Agreement in whole or in part; ii. Upon written notice to Subrecipient,the WQA may extend the time of performance; iii. The WQA may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for Subrecipient breach of the Agreement or to terminate the Agreement; or iv. The WQA may exercise any other available and lawful right or remedy. 7 Subrecipient shall be liable for all legal fees plus other costs and expenses that WQA incurs upon a breach of this Agreement by subrecipient or in the WQA's exercise of its remedies under this Agreement. 7. In the event WQA is in breach of this Agreement, Subrecipient's sole remedy shall be the suspension or termination of this Agreement and/or the recovery of any unpaid sums lawfully owed to Subrecipient under this Agreement for completed services and tasks. WQA shall not be liable for consequential damage or any other damages or recovery. 8. No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom,estoppel, or otherwise. P. MISCELLANEOUS PROVISIONS. 1. Amendment. No amendment of this Agreement shall be binding upon the Parties unless it is in writing and executed by all Parties. 2. Integration. This Agreement sets forth all of the covenants,provisions,agreements,conditions and understandings with respect to the matters addressed in this Agreement and constitutes the final and complete agreement of the Parties with respect to such matters, and supersedes all previous negotiations between them and all drafts or other documents previously exchanged by them with respect to such matters. Each Party acknowledges that no other Party, or agent or attorney of any other Party has made any promise,representation,or warranty whatsoever,express or implied,not contained herein concerning the matters addressed in this Agreement, to induce it to authorize the execution of this Agreement and acknowledges that it has not authorized the execution of this Agreement in reliance upon any such promise, representation, or warranty not contained herein. Except for the specific references to the Second Cooperative Agreement contained in this Agreement,the Second Cooperative Agreement is not part of this Agreement. 3. Further Action.The Parties agree to and shall take such further action and execute and deliver such additional documents as may be reasonably required to effectuate the terms and conditionsof this Agreement and to the extent consistent with the terms hereof. 4. Notices. a. Any notices or other writings required to be given to a Party pursuant to this Agreement shall be in writing addressed to the Party at the address of the Party set forth below or at such other address as subsequently may be specified by such Party in a written notice: If to WQA: Randy Schoellerman,Executive Director San Gabriel Basin Water Quality Authority 1720 W. Cameron Ave, Suite 100 West Covina,California 91790 Facsimile: (626)338-5775 Phone: (626)338-5555 Email: randy@wqa.com 8 If to SUBRECIPIENT: City of Arcadia 240 W.Huntington Dr. P.O. Box 60021 Arcadia,CA 91066 ATTN: City Manager Phone: (626)574-5401 Email: CityManager(aiArcadiaCA.gov b. Unless otherwise provided in this Agreement,notices shall be given by personal delivery, by certified mail, return receipt requested, by United States mail, or by overnight courier that provides a written confirmation of delivery, by overnight courier that provides a written confirmation of delivery, by facsimile with printed notice of receipt, or by electronic mail. Notice given by personal delivery shall be deemed given and effective upon delivery. Notice given by certified mail,return receipt requested,or by United States mail shall be deemed given and effective two(2)business days following mailing.Notice given by overnight courier shall be deemed given and effective one (1) business day following mailing.Notice by facsimile and notice by electronic mail shall bedeemed given upon transmission. It is each Party's obligation to notify the other Party ofany change of address of those listed in this section of the Agreement. 5. No Assignment. No Party shall assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other Parties. 6. Joint Drafting and Negotiation. This Agreement has been jointly negotiated and drafted. The language of this Agreement shall be construed as a whole according to its fair meaning and without regard to or aid of any statutory or similar judicial rule of construction. Each Party acknowledges that it has had the opportunity to seek the advice of experts and legal counsel prior to executing this Agreement,and that it is fully aware of and understands all of its terms and the legal consequences thereof. 7. Headings. Headings used in this Agreement are for reference only and shall not affect the construction of this Agreement. 8. Third Party Beneficiaries. No third party shall be entitled to claim or enforce any rights under this Agreement. 9. Severability. In the event that any provision of this Agreement is determined by a court to be invalid, the court shall reform the provision in a manner that is both consistent with the terms of this Agreement taken as a whole and legally valid. The remainder of this Agreement shall not be affected thereby. 10. Successors and Permitted Assigns. All covenants and agreements contained in this Agreement by or on behalf of a Party shall bind and inure to the benefit of that Party's successors and permitted assigns,whether so expressed or not. 9 11. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument. Signatures sent by facsimile or electronic mail shall be deemed originals and treated in all respects as originals pursuant to Government Code § 16.5. IN WITNESS WHEREOF, each Party has executed this Agreement on V C \ ,XJL.1 2021, said Agreement to be effective on the Effective Date. CITY OF ARCADIA SAN GABRIEL BASIN WATER QUALITY AUTHORITY By: By: f4&4��i-04/44444 _ Dominic Lazzare City Manager Title: a-i4 e, D;'idor jj Printed Name: POLO � Se_/ 'e/Iecrnan ATTEST: By: By: flezd Title: Pls i`a t t. t t , Pit AI City Clerk Printed Name: 1-)CU& 001 r'ij APPROVED AS TO FORM: CONCUR: By: *' u�,v, P• ) i--e,t,i,i.,(.6. 2,.,Q,CIA,....--.."—• Stephen P. Deitsch Paul Cranmer City Attorney Public Works Services Director 10 EXHIBIT A—PROJECT DESCRIPTION 1. Alhambra Groundwater Treatment Plant 2. Arcadia Live Oak Treatment 3. Arcadia Longden Treatment 4. Cal Domestic Water Company Basset Treatment 5. Golden State Water Company Garvey Plant 6. Golden State Water Company San Gabriel Plant 7. Golden State Water Company Encinita Plant 8. La Puente Valley County Water District Treatment Plant 9. Monrovia Myrtle Tower 1 and 2 Treatment 10. Monrovia Myrtle Tower 3 and 4 Treatment 11. Monterey Park Well 5 Treatment 12. Monterey Park 9, 12, 15 Treatment 13. Monterey Park 1, 3, 10, & Fern Treatment 14. San Gabriel Valley Water Company Plant No. 8 Treatment 15. San Gabriel Valley Water Company Plant No. 11 Treatment 16. San Gabriel Valley Water Company Plant B5 Treatment 17. San Gabriel Valley Water Company Plant No. B6 Treatment 18. San Gabriel Valley Water Company Plant B11 Treatment 19. San Gabriel Valley Water Company Plant G4 Treatment 20. South Pasadena Wilson Treatment 21. Valley County Water District Maine Treatment 22. Valley County Water District Nixon Treatment 23. Valley County Water District Lante Treatment Plant 24. Water Quality Authority WSGRF Exhibit A EXHIBIT B—GENERAL AND PROGRAMMATIC TERMS AND CONDITIONS B.1 REPRESENTATIONS&WARRANTIES The Recipient represents,warrants, and commits to the following as of the Eligible Work Start Date and continuing thereafter for the term of this Agreement,which shall be at least until the Records Retention End Date. B.1.1 Application and General Recipient Commitments. The Recipient has not made any untrue statement of a material fact in its application for this financial assistance, or omitted to state in its application a material fact that makes the statements in its application not misleading. The Recipient agrees to comply with all terms,provisions, conditions,and commitments of this Agreement, including all incorporated documents. The Recipient agrees to fulfill all assurances, declarations, representations, and commitments in its application, accompanying documents, and communications filed in support of its request for funding under this Agreement. The Recipient is in compliance with all State Water Board funding agreements to which it is a party. B.1.2 Authorization and Validity. The execution and delivery of this Agreement, including all incorporated documents,has been duly authorized by the Recipient.Upon execution by both parties,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. B.1.3 No 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 instrument to which Recipient is a party or by which Recipient is bound as of the date set forth on the Cover Page. B.1.4 No Litigation. There are no pending or,to Recipient's knowledge,threatened actions, claims, investigations, suits,or proceedings before any governmental authority,court,or administrative agency which materially affect the financial condition or operations of the Recipient,the Facility,and/or the Project. There are no proceedings,actions,or offers by a public entity to acquire by purchase or the power of eminent domain the Facility or any of the real or personal property related to or necessary for the Project. Exhibit B- 1 - B.1.5 Property Rights. The Recipient owns or has sufficient property rights in the Project property for the longer of the useful life or the term of this Agreement, either in fee simple or for a term of years that is not subject to third- party revocation during the useful life of the Facility. B.1.6 Solvency and Insurance. 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. The Recipient is solvent and will not be rendered insolvent by the transactions contemplated by this Agreement. The Recipient is able to pay its debts as they become due. The Recipient maintains sufficient insurance coverage considering the scope of this Agreement, including, for example but not necessarily limited to,general liability, automobile liability,workers compensation and employer liability,professional liability. B.1.7 Legal Status and Eligibility. The Recipient is duly organized and existing and in good standing under the laws of the State of California. Recipient must at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority. The Recipient acknowledges that changes to its legal or financial status may affect its eligibility for funding under this Agreement and commits to maintaining its eligibility. Within the preceding ten years,the Recipient has not failed to demonstrate compliance with State or federal audit disallowances. B.1.8 Financial Statements and Continuing Disclosure. The financial statements of Recipient: (a)are materially complete and correct; (b)present fairly the financial condition of the Recipient; and(c)have been prepared in accordance with GAAP. Since the date(s)of such financial statements provided to the State Water Board,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. The Recipient is current in its continuing disclosure obligations associated with its material debt,if any. B.1.9 No Other Material Debt. The Recipient has no Material Obligations other than as set forth in financial statements provided to the State Water Board,unless set forth in Exhibit D. B.2 DEFAULTS AND REMEDIES In addition to any other remedy set forth in this Agreement,the following remedies are available under this Agreement. B.2.1 Return of Funds; Acceleration; and Additional Payments. Exhibit B -2 - Notwithstanding any other provision of this Agreement, if the Division determines that an Event of Default has occurred, the Recipient may be required,upon demand, immediately to do each of the following: (a) return to the State Water Board any grant or principal forgiveness amounts received pursuant to this Agreement; (b) pay interest at the highest legal rate on all of the foregoing; and (c) pay any Additional Payments. B.2.2 Judicial Remedies. Whenever the State Water Board determines that an Event of Default shall have occurred,the State Water Board may enforce its rights under this Agreement by any judicial proceeding,whether at law or in equity. Without limiting the generality of the foregoing,the State Water Board may: (a) by suit in equity,require the Recipient to account for amounts relating to this Agreement as if the Recipient were the trustee of an express trust; (b) by mandamus or other proceeding, compel the performance by the Recipient and any of its officers,agents,and employees of any duty under the law or of any obligation or covenant under this Agreement; and (c) take whatever action at law or in equity as may appear necessary or desirable to the State Water Board,or to enforce performance of any obligation or covenant of the Recipient under this Agreement. B.2.3 Termination. Upon an Event of Default,the State Water Board may terminate this Agreement. Interest shall accrue on all amounts due at the highest legal rate of interest from the date that the State Water Board delivers notice of termination to the Recipient. B.2.4 Damages for Breach of Tax-Exempt Status. In the event that any breach of any of the provisions of this Agreement by the Recipient results in the loss of tax-exempt status for any bonds of the State or any subdivision or agency thereof,or if such breach results in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government by reason of any arbitrage profits,the Recipient must 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. Exhibit B - 3 - B.2.5 Remedies and Limitations. None of the remedies available to the State Water Board shall be exclusive of any other remedy,and each such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. The State Water Board may exercise any remedy,now or hereafter existing, without exhausting and without regard to any other remedy. Any claim of the Recipient is limited to the rights and remedies provided to the Recipient under this Agreement and is subject to the claims procedures provided to the Recipient under this Agreement. B.2.6 Non-Waiver. Nothing in this Agreement shall affect or impair the Recipient's obligation to undertake work under this Agreement or shall affect or impair the right of the State Water Board to bring suit to enforce such work. No delay or omission of the State Water Board in the exercise of any right arising upon an Event of Default shall impair any such right or be construed to be a waiver of any such Event of Default. The State Water Board may exercise from time to time and as often as shall be deemed expedient by the State Water Board,any remedy or right provided by law or pursuant to this Agreement. Any waiver of rights by the State Water Board with respect to a default or other matter arising under this Agreement at any time shall not be considered a waiver of rights with respect to any other default or matter. B.2.7 Status Quo. If any action to enforce any right or exercise any remedy shall be brought and either discontinued or determined adversely to the State Water Board,then the State Water Board shall be restored to its former position,rights and remedies as if no such action had been brought. B.3 STANDARD CONDITIONS B.3.1 Access,Inspection,and Public Records. The Recipient must ensure that the State Water Board,the Governor of the State,or any authorized representative of the foregoing,will have safe and suitable access to the Project site at all reasonable times through the Records Retention End Date. The Recipient acknowledges that,except for a subset of information regarding archaeological records and personally identifiable information,the Project records and locations are public records including,but not limited to,all of the submissions accompanying the application, all of the documents incorporated into this Agreement by reference,and all reports, Reimbursement Requests, and supporting documentation submitted hereunder. B.3.2 Accounting and Auditing Standards;Financial Management Systems;Records Retention. (a) The Recipient must maintain GAAP-compliant project accounts, including GAAP requirements relating to the reporting of infrastructure assets. Without limitation of the requirement to maintain Project accounts in accordance with GAAP,the Recipient must: (1) Establish an official file for the Project which adequately documents all significant actions relative to the Project; Exhibit B -4 - (2) Establish separate accounts which will adequately and accurately depict all amounts received and expended on the Project,including all Project 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 Project Funds disbursed under this Agreement; (4) Establish an accounting system which will accurately depict final total costs of the Project; (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, accounts will be established which reasonably document all employee hours charged to the Project and the associated tasks performed by each employee. Indirect Costs from Force Account are not eligible for funding. (b) The Recipient must maintain separate books,records and other material relative to the Project. The Recipient must also retain such books,records,and other material for itself and for each contractor or subcontractor who performed or performs work on this project for a minimum of thirty-six(36)years after Work Completion. The Recipient must require that such books,records, and other material are subject at all reasonable times(at a minimum during normal business hours)to inspection,copying,and audit by the State Water Board,the California Department of Finance,the California State Auditor,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 of the aforementioned.The Recipient must allow and must require its contractors to allow interviews during normal business hours of any employees who might reasonably have information related to such records. The Recipient agrees to include a similar duty regarding audit,interviews,and records retention in any contract or subcontract related to the performance of this Agreement. The provisions of this section survive the term of this Agreement. B.3.3 Amendment. No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by both the Recipient and the Deputy Director or designee. B.3.4 Assignability. Exhibit B- 5 - 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 formal written amendment to this Agreement. B.3.5 Audit. The Division may call for an audit of financial information relative to the Project if the Division determines that an audit is desirable to assure program integrity or if an audit becomes necessary because of State or federal requirements. If an audit is called for,the audit must be performed by a certified public accountant independent of the Recipient and at the cost of the Recipient. The audit must be in the form required by the Division.The Recipient must return,or ensure the return of,any audit disallowances within 30 days. B.3.6 Bonding. Where contractors are used,the Recipient must not authorize construction to begin until each contractor has furnished a performance bond in favor of the Recipient in the following amounts: faithful performance(100%)of contract value; labor and materials (100%)of contract value.This requirement shall not apply to any contract for less than$25,000.00. B.3.7 Competitive Bidding The Recipient must adhere to any applicable State law or local ordinance for competitive bidding and applicable labor laws. B.3.8 Compliance with Applicable Laws,Rules,and Requirements. The Recipient must,at all times,comply with and require its contractors and subcontractors to comply with all applicable federal and State laws,rules,guidelines,regulations, and requirements.Without limitation of the foregoing,to the extent applicable,the Recipient must: (a) Comply with the provisions of the adopted environmental mitigation plan,if any, for the useful life of the Project; (b) Comply with the Guidelines; and (c) Comply with and require compliance with the State and federal requirements set forth elsewhere in this Agreement. B.3.9 Computer Software. Exhibit B-6 - The Recipient certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Agreement for the acquisition,operation or maintenance of computer software in violation of copyright laws. B.3.10 Conflict of Interest. The Recipient certifies that its owners, officers, directors, agents,representatives, and employees are in compliance with applicable State and federal conflict of interest laws and will remain in compliance for the useful life of the Facility. Public entities are required to have adopted conflict of interest codes and may be required to provide documentation of those codes to the Division. B.3.11 Continuous Use of Project;No Lease, Sale,Transfer of Ownership,or Disposal of Project. The Recipient agrees that,except as provided in this Agreement, it will not abandon, substantially discontinue use of,lease, sell,transfer ownership of,or dispose of all or a significant part or portion of the Facility during the useful life of the Facility 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 disbursed Project Funds or all or any portion of all remaining funds covered by this Agreement together with accrued interest and any penalty assessments that may be due. B.3.12 Data Management. The Recipient will undertake appropriate data management activities so that Project data can be incorporated into statewide data systems. B.3.13 Disputes. (a) The Recipient may appeal a staff decision within thirty(30)days to the Deputy Director of the Division or designee,for a final Division decision. The Recipient may appeal a fmal Division decision to the State Water Board within thirty(30)days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative to its fmal 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 determined 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 that nothing herein shall be construed to make final the decision of the State Water Board,or any official or representative thereof, on any question of law. (c) The Recipient must continue with the responsibilities under this Agreement during any dispute. Exhibit B -7 - (d) This section relating to disputes does not establish an exclusive procedure for resolving claims within the meaning of Government Code sections 930 and 930.4. B.3.14 Drug-Free Workplace. The Recipient certifies that it will provide a drug-free workplace in compliance with the Drug-Free Workplace Act(Gov. Code. §§ 8350-8357). The Recipient shall publish a statement notifying employees that the unlawful manufacture,distribution,dispensation,possession, or use of a controlled substance is prohibited in the Recipient's workplace and specifying the actions to be taken against employees for violations of the prohibition. The Recipient shall establish a drug-free awareness program to inform employees about the dangers of drug abuse in the workplace,the Recipient's policy of maintaining a drug-free workplace,any available drug counseling,rehabilitation and employee assistance programs, and penalties that may be imposed upon employees for drug abuse violations. The Recipient shall provide that every employee who works on the Project receives a copy of the Recipient's drug-free workplace policy statement and agrees to abide by the terms of the statement as a condition of employment on the Project. B.3.15 Environmental Clearance. No work that is subject to California Environmental Quality Act(CEQA)or National Environmental Policy Act(NEPA)may proceed under this Agreement until the State Water Board has provided approval to proceed. Upon receipt and review of the Recipient's environmental documents,the State Water Board shall make the appropriate environmental findings before determining whether to approve construction or implementation funding for the Project under this Agreement. Providing approval for such construction or implementation funding is fully discretionary. The State Water Board may require changes in the scope of work or additional mitigation as a condition to providing construction or implementation funding under this Agreement.The Recipient shall not perform any work subject to CEQA and/or NEPA before the State Water Board completes its environmental review and specifies any changes in scope or additional mitigation that may be required. Proceeding with work subject to CEQA and/or NEPA without approval by the State Water Board shall constitute a breach of a material provision of this Agreement. If this Project includes modification of a river or stream channel,the Recipient must fully mitigate environmental impacts resulting from the modification.The Recipient must provide documentation that the environmental impacts resulting from such modification will be fully mitigated considering all of the impacts of the modification and any mitigation, environmental enhancement,and environmental benefit resulting from the Project,and whether,on balance, any environmental enhancement or benefit equals or exceeds any negative environmental impacts of the Project. B.3.16 Governing Law. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. B.3.17 Income Restrictions. The Recipient agrees that any refunds,rebates,credits,or other amounts (including any interest thereon) accruing to or received by the Recipient related to this Agreement must be paid by the Recipient to the Exhibit B -8- State Water Board,to the extent that they are properly allocable to costs for which the Recipient has been reimbursed by the State Water Board under this Agreement. B.3.18 Indemnification and State Reviews. The parties agree that review or approval of Project plans and specifications by the State Water Board is for administrative purposes only,including conformity with application and eligibility criteria,and expressly not for the purposes of design defect review or construction feasibility,and does not relieve the Recipient of its responsibility to properly plan,design,construct,operate,and maintain the Project. To the extent permitted by law,the Recipient agrees to indemnify,defend,and hold harmless the State Water Board, and any trustee,and their officers,employees,and agents(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 Facility or the Project or the conditions,occupancy,use,possession,conduct,or management of,work done in or about, or the planning,design, acquisition, installation, or construction,of the Facility 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 laws),rule or regulation or the release of any toxic substance on or near the Facility or the Project; or(4)any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein,in light of the circumstances under which they were made,not misleading with respect to any information provided by the Recipient for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement,except those arising from the gross negligence or willful misconduct of the Indemnified Persons.The Recipient must also provide for the defense and indemnification of the Indemnified Persons in any contractual provision extending indemnity to the Recipient in any contract let for the performance of any work under this Agreement,and must cause the Indemnified Persons to be included within the scope of any provision for the indemnification and defense of the Recipient in any contract or subcontract.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 survive the term of this Agreement. B.3.19 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. B.3.20 Integration. This Agreement constitutes the complete and fmal agreement between the parties. No oral or written understanding or agreement not incorporated in this Agreement shall be binding on either party. Exhibit B -9 - B.3.21 No Discrimination. (a) The Recipient must comply with Government Code section 11135 and the implementing regulations(Cal. Code Regs,tit. 2, § 11140 et seq.),including,but not limited to,ensuring that no person is unlawfully denied full and equal access to the benefits of, or unlawfully subjected to discrimination in the operation of,the Project or Facility on the basis of sex,race,color,religion,ancestry,national origin, ethnic group identification,age,mental disability,physical disability,medical condition,genetic information,marital status,or sexual orientation as such terms are defined under California law, for as long as the Recipient retains ownership or possession of the Project. (b) If Project Funds are used to acquire or improve real property,the Recipient must include a covenant of nondiscrimination running with the land in the instrument effecting or recording the transfer of such real property. (c) The Recipient must comply with the federal American with Disabilities Act of 1990 and implementing regulations as required by Government Code section 11135(b). (d) The Recipient's obligations under this section shall survive the term of this Agreement. (e) During the performance of this Agreement,the Recipient and its contractors and subcontractors must 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, denial of family care leave, or genetic information, gender,gender identity, gender expression, or military and veteran status. (f) The Recipient,its contractors,and subcontractors must ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. (g) The Recipient,its contractors,and subcontractors must comply with the provisions of the Fair Employment and Housing Act and the applicable regulations promulgated thereunder.(Gov.Code, §12990, subds. (a)-(f)et seq.;Cal. Code Regs.,tit. 2, § 7285 et seq.) Such regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. (h) The Recipient, its contractors,and subcontractors must give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (i) The Recipient must include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. Exhibit B - 10- B.3.22 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. B.3.23 No Obligation of the State. Any obligation of the State Water Board herein contained shall not be an obligation,debt,or liability of the State,and any such obligation shall be payable solely out of the moneys encumbered pursuant to this Agreement. B.3.24 Notice. Upon the occurrence of any of the following events,the Recipient must notify the Division's Deputy Director and Project Manager by phone and email within the time specified below: (a) The Recipient must notify the Division within twenty-four(24)hours of any discovery of any potential tribal cultural resource and/or archaeological or historical resource. Should a potential tribal cultural resource and/or archaeological or historical resource be discovered during construction or Project implementation,the Recipient must ensure that all work in the area of the find will cease until a qualified archaeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Division has determined what actions should be taken to protect and preserve the resource. The Recipient must implement appropriate actions as directed by the Division. (b) The Recipient must notify the Division within five(5)business days of the occurrence of any of the following events: (1) Bankruptcy,insolvency,receivership or similar event of the Recipient,or actions taken in anticipation of any of the foregoing; (2) Change of ownership of the Project(no change of ownership may occur without written consent of the Division); (3) Loss,theft,damage,or impairment to Project; (4) Events of Default,except as otherwise set forth in this section; (5) Failure to observe or perform any covenant or comply with any condition in this Agreement; (6) An offer from a public entity to purchase the Project or any portion thereof, or any of the real or personal property related to or necessary for the Project; (7) A proceeding or action by a public entity to acquire the Project by power of eminent domain. Exhibit B - 11- (c) The Recipient must notify the Division in writing within ten(10)business days of any of the following events: (1) Any litigation pending or threatened with respect to the Project;the Recipient's technical, managerial or financial capacity to operate; or the Recipient's continued existence; (2) Consideration of dissolution,or disincorporation; (3) 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; (4) Enforcement actions by or brought on behalf of the State Water Board or Regional Water Board. (d) The Recipient must notify the Division promptly of any of the following events: (1) The discovery of a false statement of fact or representation made in this Agreement or in the application to the Division for this financial assistance,or in any certification,report, or Reimbursement Request made pursuant to this Agreement,by the Recipient, its employees,agents,or contractors; (2) Any substantial change in scope of the Project. The Recipient must undertake no substantial change in the scope of the Project until prompt written notice of the proposed change has been provided to the Division and the Division has given written approval for the change; (3) Cessation of any and all major construction work on the Project where such cessation of work is expected to or does extend for a period of thirty(30)days or more; (4) Any circumstance, combination of circumstances,or condition,which is expected to or does delay Work Completion for a period of ninety(90)days or more; (5) Any Project monitoring,demonstration,or other implementation activities required in this Agreement; (6) Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by State representatives with at least ten(10) working days' notice to the Division; (7) Any events requiring notice to the Division pursuant to any other provision of this Agreement; (8) Work Completion; (9) Project Completion; (10) The award of a prime construction contract for,or initiation of construction of,Item 6 in Exhibit A.1 (b),if applicable. B.3.25 Operation and Maintenance; Insurance. Exhibit B - 12 - The Recipient agrees to sufficiently and properly staff, operate,and maintain all portions of the Facility during its useful life in accordance with all applicable State and federal laws,rules,and regulations. Unless expressly provided herein,the Recipient assumes all operations and maintenance costs of the facilities and structures;the State Water Board shall not be liable for any cost of such maintenance, management,or operation. The Recipient will procure and maintain or cause to be maintained insurance on the Facility with responsible insurers, or as part of a reasonable system of self-insurance,in such amounts and against such risks (including damage to or destruction of the Project)as are usually covered in connection with systems similar to the Facility. Such insurance may be maintained by a self-insurance plan so long as such plan provides for(i)the establishment by the Recipient of a separate segregated self-insurance fund in an amount determined(initially and on at least an annual basis)by an independent insurance consultant experienced in the field of risk management employing accepted actuarial techniques,and(ii)the establishment and maintenance of a claims processing and risk management program. In the event of any damage to or destruction of the Facility caused by the perils covered by such insurance,the net proceeds thereof shall be applied to the reconstruction,repair or replacement of the damaged or destroyed portion of the Facility. The Recipient must begin such reconstruction,repair or replacement as expeditiously as possible,and must pay out of such net proceeds all costs and expenses in connection with such reconstruction,repair or replacement so that the same must be completed and the Facility must be free and clear of all claims and liens. The Recipient agrees that for any policy of insurance concerning or covering the construction of the Facility, it will cause,and will require its contractors and subcontractors to cause,a certificate of insurance to be issued showing the State Water Board,its officers,agents, employees,and servants as additional insured; and must provide the Division with a copy of all such certificates prior to commencement of construction,if applicable. B.3.26 Permits, Subcontracting,and Remedies. The Recipient must procure all permits, licenses and other authorizations necessary to accomplish the work contemplated in this Agreement,pay all charges and fees,and give all notices necessary and incidental to the due and lawful prosecution of the work. Signed copies of any such permits or licenses must be submitted to the Division before any work or construction begins. The Recipient must not contract or allow subcontracting with excluded parties.The Recipient must not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen, directed,funded, or administered by the State Water Board program for which this funding is authorized.For any work related to this Agreement,the Recipient must not contract with any individual or organization on the State Water Board's List of Disqualified Businesses and Persons that is identified as debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen,directed,funded, or administered by the State Water Board program for which funding under this Agreement is authorized. The State Water Board's List of Disqualified Businesses and Persons is located at Exhibit B - 13 - http://www.waterboards.ca.gov/water issues/programs/enforcement/fwa/dbp.shtml B.3.27 Professionals. The Recipient agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for.All technical reports required pursuant to this Agreement that involve planning, investigation,evaluation,design, or other work requiring interpretation and proper application of engineering,architectural, or geologic sciences, shall be prepared by or under the direction of persons registered to practice in California pursuant to Business and Professions Code,sections 5536.1, 6735, 7835, and 7835.1. To demonstrate compliance with California Code of Regulations,title 16, sections 415 and 3065,all technical reports must contain a statement of the qualifications of the responsible registered professional(s).As required by these laws, completed technical reports must bear the signature(s)and seal(s)of the registered professional(s)in a manner such that all work can be clearly attributed to the professional responsible for the work. B.3.28 Prevailing Wages. If applicable,the Recipient agrees to be bound by all applicable provisions of State Labor Code regarding prevailing wages. If applicable,the Recipient must monitor all agreements subject to reimbursement from this Agreement to ensure that the prevailing wage provisions of the State Labor Code are being met. Division of Industrial Relations(DIR)requirements may be found at: http://www.dir.ca.gov/lcp.asp.For more information,please refer to DIR's Public Works Manual at: http://www.dir.ca.gov/dlse/PWManualCombined.pdf. B.3.29 Public Funding. This Project is publicly funded. Any service provider or contractor with which the Recipient contracts 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. B.3.30 Responsibility for Work. The Recipient shall be responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement including,but not limited to, contractors, subcontractors, suppliers,and providers of services. The Recipient shall be responsible for responding to any and all disputes arising out of its contracts for work on the Project including,but not limited to payment disputes with contractors and subcontractors. The State Water Board will not mediate disputes between the Recipient and any other entity concerning responsibility for performance of work. B.3.31 Related Litigation. Under no circumstances may the 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 repay all of the disbursed funds plus interest in the event that Recipient does not complete the Project. Exhibit B - 14- B.3.32 Rights in Data. The Recipient agrees that all data,plans, drawings, specifications,reports, computer programs,operating manuals,notes,and other written or graphic work produced in the performance of this Agreement are subject to the rights of the State as set forth in this section. The State shall have the right to reproduce, publish,and use all such work, or any part thereof,in any manner and for any purposes whatsoever and to authorize others to do so. If any such work is copyrightable,the Recipient may copyright the same, except that, as to any work which is copyrighted by the Recipient,the State 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. The Recipient may disclose, disseminate and use in whole or in part,any final form data and information received, collected,and developed under this Agreement, subject to appropriate acknowledgement of credit to the State Water Board for financial support. The Recipient shall not utilize the materials for any profit- making venture or sell or grant rights to a third party who intends to do so. B.3.33 State Water Board Action; Costs and Attorney Fees. 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 State Water Board shall not preclude the State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own costs and attorney fees. B.3.34 Timeliness. Time is of the essence in this Agreement. B.3.35 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. B.3.36 Venue. Any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California. B.3.37 Waiver and Rights of the State Water Board. Any waiver of rights by the State Water Board with respect to a default or other matter arising under this Agreement at any time shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State Water Board provided for in this Agreement are in addition to any other rights and remedies provided by law. Exhibit B- 15 - B.4 MISCELLANEOUS STATE REQUIREMENTS B.4.1 State Program Requirements for Proposition 68 Groundwater. (a) Remediation Costs Limited. (Pub.Resources Code, § 80141.)Project Funds shall not be used to pay any share of the costs of remediation recovered from parties responsible for the contamination of a groundwater storage aquifer,but may be used to pay costs that cannot be recovered from responsible parties. Parties that receive funding for remediating groundwater storage aquifers shall exercise reasonable efforts to recover the costs of groundwater cleanup from the parties responsible for the contamination.Funds recovered from responsible parties may only be used to fund treatment and remediation activities including operations and maintenance. (b) Groundwater Monitoring. (Wat. Code, § 10920.)The Recipient shall comply with Water Code section 10920 et seq.,which requires groundwater monitoring and reporting of groundwater elevations. (c) Sustainable Groundwater Management Act(SGMA)Compliance. (Wat. Code, § 10720- 10737.8.) To the extent required under SGMA,the Recipient shall comply with the following: (1) If, after July 1,2017,the Project is or will be located in a non-adjudicated high-or medium- priority California Statewide Groundwater Elevation Monitoring(CASGEM)basin,the Recipient shall ensure that a Groundwater Sustainability Agency(GSA)has formed or an alternative has been submitted to DWR.(Wat. Code, § 10735.2(a)(1).) (2) If, after January 31,2020,the Project is or will be located in a non-adjudicated high-or medium CASGEM basin that is subject to critical conditions of overdraft,the Recipient shall ensure that the Project is consistent with an adopted Groundwater Sustainability Plan(GSP). (3) If, after January 31,2022,the Project is or will be located in a non-adjudicated high-or medium CASGEM basin that is not subject to critical conditions of overdraft,the Recipient shall ensure that the Project is consistent with an adopted GSP. B.4.2 State Cross-Cutters. Recipient represents that,as applicable, it complies and covenants to maintain compliance with the following for the term of the Agreement: (a) The California Environmental Quality Act(CEQA),as set forth in Public Resources Code 21000 et seq. and in the CEQA Guidelines at Title 14,Division 6, Chapter 3, Section 15000 et seq. Exhibit B - 16 - (b) Water Conservation requirements,including regulations in Division 3 of Title 23 of the California Code of Regulations. (c) Monthly Water Diversion Reporting requirements,including requirements set forth in Water Code section 5103. (d) Public Works Contractor Registration with Department of Industrial Relations requirements, including requirements set forth in Sections 1725.5 and 1771.1 of the Labor Code. (e) Volumetric Pricing&Water Meters requirements, including the requirements of Water Code sections 526 and 527. (f) Urban Water Management Plan requirements, including the Urban Water Management Planning Act(Water Code, § 10610 et seq.). (g) Urban Water Demand Management requirements,including the requirements of Section 10608.56 of the Water Code. (h) Delta Plan Consistency Findings requirements, including the requirements of Water Code section 85225 and California Code of Regulations,title 23, section 5002. (i) Agricultural Water Management Plan Consistency requirements, including the requirements of Water Code section 10852. (j) Charter City Project Labor Requirements,including the requirements of Labor Code section 1782 and Public Contract Code section 2503. (k) Governor's Infrastructure Plan. (Gov.Code, § 13100.)The Recipient shall ensure that the Project shall maintain consistency with section 13100 of the Government Code(five-year infrastructure plan). (1) Groundwater Monitoring. (Wat.Code, § 10920.) The Recipient shall comply with Water Code section 10920 et seq.,which requires groundwater monitoring and reporting of groundwater elevations. (m) The Recipient agrees that it will, at all times,comply with and require its contractors and subcontractors to comply with directives or orders issued pursuant to Division 7 of the Water Code. Exhibit B - 17- (n) Union Activities. The Recipient hereby acknowledges the applicability of Government Code sections 16645 through 16649 to this Agreement. The Recipient certifies that none of the Project Funds will be used to assist,promote,or deter union organizing. If the Recipient incurs costs or makes expenditures to assist,promote, or deter union organizing,the Recipient will maintain records sufficient to show that no reimbursement from Project Funds has been sought for these costs and the Recipient shall provide those records to the Attorney General upon request. Exhibit B - 18 -