D
RINKING WATER CONSTRUCTION GRANT
AG
REEMENT No. D2202045
by and between
CITY OF STOCKTON (“Recipient”)
AND
CALIFORNIA STATE WATER RESOURCES CONTROL BOARD (“State Water Board”) f
or the purpose of the
CE
NTURY MOBILE HOME PARK AND SUNNY ROAD WATER SYSTEM CONSOLIDATION PROJECT 3910012-001C (“Project”)
• S
ection 80140 of the Public Resources Code, and Resolution No. 2022-0041.
P
ROJECT FUNDING AMOUNT: $1,421,588.00
GRANT COMPONENT: $1,421,588.00
ESTIMATED REASONABLE PROJECT COST: $1,421,588.00
ELIGIBLE WORK START DATE: NOVEMBER 27, 2019
ELIGIBLE CONSTRUCTION START DATE: APRIL 4, 2023
CONSTRUCTION COMPLETION DATE: SEPTEMBER 30, 2026
FINAL REIMBURSEMENT REQUEST DATE: MARCH 31, 2027
RECORDS RETENTION END DATE: SEPTEMBER 30, 2062
ATTACHMENT A
City of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
1. The State Water Board and the Recipient mutually promise, covenant, and agree to the terms, provisions, and conditions of this Agreement, including the following Exhibits, which are attached hereto or are incorporated by reference:
• EXHIBIT A – SCOPE OF WORK AND SCHEDULE
• EXHIBIT B – SPECIFIC FUNDING PROVISIONS
• EXHIBIT C – GENERAL TERMS AND CONDITIONS 2019-NOV
• EXHIBIT D – SPECIAL CONDITIONS
2. T he following documents are also incorporated by reference, as well as any documents incorporated by reference in Exhibit D:
• the Final Plans & Specifications which are the basis for the construction contract to be awarded by the Recipient;
• the Drinking Water System Permit No. 01-10-15P-001;
3. Party Contacts during the term of this Agreement are:
State Water Board City of Stockton
Section: Division of Financial Assistance
Name: Judith Salazar Name: Harry
Black
Title: City Manager
Address: 1001 I Street, 16th Floor Address: 425 N. El Dorado Street City, State,
Zip:
Sacramento, CA 95814 City, State, Zip: Stockton, CA, 95202 Phone: (916) 445 - 0827 Phone: (209) 937 - 8212
Fax: Fax:
Email: [email protected] Email: [email protected]
Each party may change its contact upon written notice to the other party. While Party Contacts are contacts for day-to-day communications regarding Project work, the Recipient must provide official communications and notices to the Division’s Deputy Director.
4. Conditions precedent to this Agreement are set forth as follows:
(a) The Recipient must deliver to the Division a resolution authorizing this Agreement and identifying its authorized representative by title.
(b) The Recipient must deliver an opinion of general counsel satisfactory to the State Water Board’s counsel dated on or after the date that the Recipient signs this Agreement.
5. 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:
(a) The Recipient agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents.
(b) 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. (c) 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
ATTACHMENT A
City of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
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. (d) The Recipient is in compliance with all State Water Board funding agreements to which it is a party.
6. This Agreement, and any amendments hereto, may be executed and delivered in any number of counterparts, each of which when delivered shall be deemed to be an original, but such counterparts shall together constitute one document. The parties may sign this Agreement , and any amendments hereto, either by an electronic signature using a method approved by the State Water Board or by a physical, handwritten signature. The parties mutually agree that an electronic signature using a method approved by the State Water Board is the same as a physical, handwritten signature for the purposes of validity, enforceability, and admissibility.
ATTACHMENT A
City of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
CITY OF STOCKTON:
By: ____________________________________
Name: Harry Black
Title: City Manager
Date: _________________________________
STATE WATER RESOURCES CONTROL BOARD:
By: ____________________________________
Name: Joe Karkoski
Title: Deputy Director
Division of Financial Assistance
Date: __________________________________
ATTACHMENT A
City of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit A
EXHIBIT A – SCOPE OF WORK AND SCHEDULE
A.1 PROJECT PURPOSE AND DESCRIPTION.
The Century Mobile Home Park (MHP) water system, the Sunny Road water system, the domestic well system located on residential property on 3509 Sunny Road (Jack Lo property), and the Recipient will benefit from the Project, which has a useful life of at least 35 years. The funding under this agreement will be used to connect the following to the Recipient’s distribution system: Century MHP, Sunny Road, and the Jack Lo property. The Project will resolve an arsenic maximum contaminant level (MCL) compliance order and provide overall system reliability.
A.2 SCOPE OF WORK.
The Recipient agrees to consolidate Century MHP, Sunny Road, and the Jack Lo property into the Recipient’s system. The Recipient agrees to construct the following to connect to each system:
1) Within the Century MHP water system:
a) Construct one (1) service connection (approximately 70 feet). b) Install one (1) master meter and one (1) blowoff valve. c) Decommission the two (2) existing groundwater wells.
2) Within the Sunny Road water system:
a) Construct three (3) residential laterals with stub outs (approximately 40 feet). b) Install one (1) master meter and one (1) blowoff valve. c) Decommission the existing groundwater well.
3) Within the Jack Lo property:
a) Construct one (1) service connection (approximately 80 feet). b) Install one (1) master meter.
c) Decommission the existing groundwater well.
4) Within the Recipient’s system:
a) Construct approximately 1,443 feet of twelve-inch (12”) pipe from the existing main to the southerly property line of Century MHP.
b) Construct approximately 560 feet of twelve-inch (12”) pipe from the SR-99 frontage road to the eastern property line of Silvia Avalos.
c) Construct fire hydrants and butterfly valves along the water main in the public right -of-way.
Upon Completion of Construction, the Recipient must expeditiously initiate Project operations.
A.3 SIGNAGE
The Recipient must place a professionally prepared sign at least four feet tall by eight feet wide made of ¾ inch thick exterior grade plywood or other approved material in a prominent location on the Project site and must maintain the sign in good condition for the duration of Project implementation. The sign may include another agency’s required information and must include, prominently displayed, the following disclosure statement and color logos (available from the Division):
ATTACHMENT A
City of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit A
“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.” A.4 SCHEDULE.
Failure to provide items by the due dates indicated in the table below may constitute a material violation of this Agreement. The Project Manager may adjust the dates in the “Estimated Due Date” column of this table, but Critical Due Date adjustments will require an amendment to this Agreement. The Recipient must complete and submit all work in time to be approved by the Division prior to Project Completion. As applicable for specific submittals, the Recipient must plan adequate time to solicit, receive, and address comments prior to submitting the final submittal. The Recipient must submit the final Reimbursement Request prior to the Final Reimbursement Request Date set forth on the Cover Page.
ITEM DESCRIPTION OF SUBMITTAL CRITICAL DUE
DATE
ESTIMATED DUE
DATE
SCOPE OF WORK
1. Final Plans and Specs and Local Agency Formation
Commission (LAFCo) Documents
N/A June 30, 2024
2. Final Bid Package Submittal N/A August 30, 2024
3. Bid Opening N/A October 31, 2024
4. Final Budget Approval Package Submittal N/A February 28, 2025
5. Construction Begins N/A June 30, 2025
6. Construction Completion September 30,
2026
N/A
REPORTING
1. Progress Reports Quarterly
2. Final Inspection and Certification N/A September 30, 2026
3. Project Completion Report N/A December 31, 2026
4 As Needed Information and Reports As Requested by Division
BUDGET COSTS AND REIMBURSEMENT
1. First Reimbursement Request No later than
90 days from
Agreement
Execution Date
N/A
2. Reimbursement Requests N/A As Needed
3. Final Reimbursement Request March 31, 2027 N/A
The Recipient must award the prime construction contract and begin construction timely. The Recipient must deliver any request for extension of the Completion of Construction Date no less than 90 days prior to the Completion of Construction Date.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit A
The Division may require corrective work to be performed prior to Project Completion. The State Water Board is not obligated to reimburse corrective work under this Agreement.
A.
5 PROGRESS REPORTS.
The Recipient must provide a progress report to the Division each quarter, beginning no later than 90 days after execution of this Agreement. The Recipient must provide a progress report with each Reimbursement Request. Failure to provide a complete and accurate progress report may result in the withholding of Project Funds, as set forth in Exhibit B. A progress report must contain the following information:
1) A summary of progress to date including a description of progress since the last report, percent construction complete, percent contractor invoiced, and percent schedule el
apsed;
2) A description of compliance with environmental requirements; 3) A listing of change orders including amount, description of work, and change in contract amount and schedule; and
4) Any problems encountered, proposed resolution, schedule for resolution, and status of previous problem resolutions.
A.
6 PROJECT COMPLETION REPORT.
(a) T
he Recipient must submit a Project Completion Report to the Division with a copy to the appr
opriate District Office on or before the due date established by the Division and the Recipient at the time of final project inspection. The Project Completion Report must include the following:
i. Description of the Project,
ii. Description of the water quality problem the Project sought to address, iii. Discussion of the Project’s likelihood of successfully addressing that water quality problem in the future, an
d
iv
. Summary of compliance with applicable environmental conditions. (b) I
f the Recipient fails to submit a timely Project Completion Report, the State Water Board may stop processing pending or future applications for new financial assistance, withhol d r
eimbursements under this Agreement or other agreements, and begin administrative pr
oceedings.
A.
7 FINAL PROJECT INSPECTION AND CERTIFICATION.
Upon completion of the Project, the Recipient must provide for a final inspection and must certify that the Project has been completed in accordance with this Agreement, any final plans and specifications submitted to the State Water Board, and any amendments or modifications thereto. If the Project involves the planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, or other professionals, the final inspection and certification must be conducted by a California Registered Civil Engineer or other appropriate California registered professional. The results of the final inspection and certification must be submitted to the Project Manager.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit B
EXHIBIT B – FUNDING AMOUNTS
B.1 ESTIMATED REASONABLE COST AND PROJECT FUNDS.
The estimated reasonable cost of the total Project is set forth on the Cover Page of this Agreement, and is greater than or equal to the funding anticipated to be provided by the State Water Board under this Agreement. Subject to the terms of this Agreement, the State Water Board agrees to provide Project Funds not to exceed the amount of the Project Funding Amount set forth on the Cover Page of this Agreement.
B.2 RECIPIENT CONTRIBUTIONS.
The Recipient must pay any and all costs connected with the Project including, without limitation, any and all Project Costs. If the Project Funds are not sufficient to pay the Project Costs in full, the Recipient 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 State Water Board.
I
f the Recipient recovers funds from any responsible parties, the Recipient shall immediately notify the Division.
The amount of this Agreement may be reduced to reflect the recovered funds.
B.
3 VERIFIABLE DATA.
Upon request by the Division, the Recipient must submit verifiable data to support deliverables specified in the Scope of Work. The Recipient’s failure to comply with this requirement may be construed as a material breach of this Agreement.
B.
4 BUDGET COSTS
Estimated budget costs are contained in the Summary Project Cost Table below:
LINE ITEM TOTAL ESTIMATED
COST
PROJECT FUNDING
AMOUNT
Construction $990,700 $990,700
Pre-Purchased Material/Equipment $0 $0
Real Property or Easement Acquisition $0 $0
Change Order Contingencies $99,070 $99,070
Force Account $0 $0
Allowances (Soft Costs) $331,818 $331,818
TOTAL $1,421,588 $1,421,588
T
he Division’s Final Budget Approval and related Form 259 and Form 260 will document a more detailed budget of eligible Project Costs and Project funding amounts.
I
ndirect Costs are ineligible for funding under this Agreement.
T
he Recipient is prohibited from requesting disbursement amounts that represent Recipient’s mark-ups to costs invoiced or otherwise requested by consultants or contractors.
B.
5 LINE ITEM ADJUSTMENTS.
U
pon written request by the Recipient, the Division may adjust the line items of the Summary Project Cost Table at the time of Division’s Final Budget Approval. Upon written request by the Recipient, the Division may also adjust the line items of the Summary Project Cost Table as well as the detailed budget at the time of Recipient’s submittal of its final claim. Any line item adjustments to the Summary Project Cost Table that are due to a change in scope of work will require an Agreement amendment. The sum of adjusted line items in both the Summary
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit B
Project Cost Table and the detailed budget must not exceed the Project Funding Amount. The Division may also propose budget adjustments.
U
nder no circumstances may the sum of line items in the budget approved through the Final Budget Approval process exceed the Project Funding Amount. Any increase in the Project Funding Amount will require an Agreement amendment.
B.
6 REIMBURSEMENT PROCEDURE.
Except as may be otherwise provided in this Agreement, reimbursements will be made as follows:
1. Upon execution and delivery of this Agreement by both parties, the Recipient may request immediat e r
eimbursement of any eligible incurred planning and design allowance costs through submission to the S
tate Water Board of the Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed.
2. The Recipient must submit a Reimbursement Request for costs incurred prior to the date this Agreement is executed by the State Water Board no later than ninety (90) days after this Agreement is executed by the State Water Board. Late Reimbursement Requests may not be honored.
3. Additional Project Funds will be promptly disbursed to the Recipient upon receipt of Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed by th e R
ecipient for incurred costs consistent with this Agreement, along with receipt of progress reports d ue under
this Agreement.
4. The Recipient must not request reimbursement for any Project Cost until such cost has been incurred an d i
s currently due and payable by the Recipient, although the actual payment of such cost by the Recipient is not required as a condition of Reimbursement Request. Supporting documentation (e.g., receipts) must be submitted with each Reimbursement Request. The amount requested for Recipient’s administration c
osts must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Reimbursement of Project Funds will be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed Reimbursement Request. Up on r
equest by the Division, supporting documents for professional and administrative services must includ e t
he employees’ names, classifications, labor rates, hours worked, and descriptions of the tasks performed. Reimbursement Requests submitted without supporting documents may be wholly or partially withheld at the discretion of the Division.
5. The Recipient must spend Project Funds within 30 days of receipt. If the Recipient earns interest ear ned on P
roject Funds, it must report that interest immediately to the State Water Board. The State Water Board may deduct earned interest from future reimbursements.
6. The Recipient must not request a reimbursement unless that Project Cost is allowable, reasonable, an d al
locable.
7. Notwithstanding any other provision of this Agreement, no reimbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, policies, or regulations.
N
otwithstanding any other provision of this Agreement, the Recipient agrees that the State Water Board may retain an amount equal to ten percent (10%) of the Project Funding Amount until Project Completion. Any retained amounts due to the Recipient will be promptly disbursed to the Recipient, without interest, upon Project Completion.
E
xcept as follows, construction costs and disbursements are not available until after the Division has approved the final budget form submitted by the Recipient. The Deputy Director of the Division may authorize the disbursement of up to ten percent (10%) of Project Funds for the reimbursement of eligible construction costs and pre-purchased materials prior to Division approval of the final budget form submitted by the Recipient. All other construction costs are not eligible for reimbursement until after the Division has approved the final budget form submitted by the Recipient. Construction costs incurred prior to the Eligible Construction Start Date are not eligible for reimbursement.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit B
B.7 REVERTING FUNDS AND DISENCUMBRANCE.
In the event the Recipient does not submit Reimbursement Requests for all funds encumbered under this Agreement timely, any remaining funds revert to the State. The State Water Board may notify the Recipient that the project file is closed, and any remaining balance will be disencumbered and unavailable for further use under the Agreement.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit C
EXH
IBIT C – GENERAL TERMS AND CONDITIONS 2019-NOV
GEN
ERAL TERMS AND CONDITIONS 2019-NOV is incorporated by reference and is posted at https://www.waterboards.ca.gov/water_issues/programs/grants_loans/general_terms.html
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
EXHIBIT D – SPECIAL CONDITIONS
D
.1 DEFINITIONS
(a) N
otwithstanding Exhibit C, the following terms have no meaning for the purposes of this Agreement:
• W
ork Completion
• Work Completion Date
Eac
h capitalized term used in this Agreement has the following meaning:
•
“Allowance" means an amount based on a percentage of the accepted bid for an eligible project to help defray the planning, design, and construction engineering and administration costs of t he P
roject.
• "Authorized Representative" means the duly appointed representative of the Recipient as set forth in the certified original of the Recipient’s authorizing resolution that designates the aut
horized representative by title.
• "Completion of Construction" means the date, as determined by the Division after consultation with t
he Recipient, that the work of building and erection of the Project is substantially complete, and is established on the Cover Page of this Agreement.
• “District Office” means District Office of the Division of Drinking Water of the State Water Board. • “Division of Drinking Water” means the Division of Drinking Water of the State Water Board. • “Eligible Construction Start Date” means the date set forth on the Cover Page of this Agreement, establishing the date on or after which construction costs may be incurred and eligible for reimbursement hereunder.
• “Eligible Work Start Date” means the date set forth on the Cover Page of this Agreement, establishing the date on or after which any non-construction costs may be incurred and eligibl e
for
reimbursement hereunder.
• “Enterprise Fund” means the enterprise fund of the Recipient in which Revenues are deposited. • “Event of Default” means, in addition to the meanings set forth in Exhibit C, the occurrence of any of the following events:
a) A material adverse change in the condition of the Recipient, the Revenues, or the System, which the Division reasonably determines would materially impair the Recipient ’s ability to satisfy its obligations under this Agreement. b) Failure to operate the System or the Project, unless the Division has given its approval for such non-operation;
• “
Final Budget Approval (FBA)” means the Division-approved final budget for the Project, as set forth in Exhibit B.
• “Indirect Costs” means those costs that are incurred for a common or joint purpose benefitin g mor
e than one cost objective and are not readily assignable to the Project (i.e., costs that are not directly related to the Project). Examples of Indirect Costs include, but are not limited to: central service costs; general administration of the Recipient; non-project-specific accounting an d
per
sonnel services performed within the Recipient organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non-project-specific facilities; tuition and conference fees; generic overhead or markup; and taxes.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
• "Initiation of Construction" means the date that notice to proceed with work is issued for t he P
roject, or, if notice to proceed is not required, the date of commencement of building and er
ection of the Project.
• “Net Revenues" means, for any Fiscal Year, all Revenues received by the Recipient less the O
perations and Maintenance Costs for such Fiscal Year.
• "Operations and Maintenance Costs" means the reasonable and necessary costs paid or incurred by
the Recipient for maintaining and operating the System, determined in accordance with GAAP, including all reasonable expenses of management and repair and all other expenses necessary to maintain and preserve the System in good repair and working order, and including all reasonable and necessary administrative costs of the Recipient that are charged directly or apportioned to the operation of the System, such as salaries and wages of employees, overhead, taxes (if any), the cost of permits, licenses, and charges to operate the System and insuranc e
pr
emiums; but excluding, in all cases depreciation, replacement, and obsolescence charges or reserves therefor and amortization of intangibles.
• “Policy" means the State Water Board's “Policy for Implementing the Drinking Water Stat e Revolving Fund,” as amended from time to time, including the Intended Use Plan in effect as of the execution date of this Agreement.
• "Revenues" means, for each Fiscal Year, all gross income and revenue received or receivable by t
he Recipient from the ownership or operation of the System, determined in accordance with GAAP, including all rates, fees, and charges (including connection fees and charges) as receiv ed by
the Recipient for the services of the System, and all other income and revenue howsoever derived by the Recipient from the ownership or operation of the System or arising from the S
ystem, including all income from the deposit or investment of any money in the Enterprise Fund or any rate stabilization fund of the Recipient or held on the Recipient’s behalf, and any refundable deposits made to establish credit, and advances or contributions in aid of construction. • “System” means all drinking water collection, transport, treatment, storage, and delivery facilities, including land and easements thereof, owned by the City of Stockton, or its successor agency, and all other properties, structures, or works hereafter acquired and constructed by the Recipient and determined to be a part of the System, together with all additions, betterments, extensions, or improvements to such facilities, properties, structures, or works, or any part thereof hereafter acquired and constructed.
• “Useful Life” means the economically useful life of the Project beginning at Project Completion and is set forth in Exhibit A.
D
.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES.
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 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 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 of execution of this Agreement by the Recipient, or result in any breach or default under any contract, obligation,
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
indenture, or other instrument to which Recipient is a party or by which Recipient is bound as of the date of execution of this Agreement by the Recipient.
Except as set forth in this paragraph, there are, as of the date of execution of this Agreement by the Recipient, 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 Revenues, 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 any of the real or personal property related to or necessary for the Project.
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. Within the preceding ten years, the Recipient has not failed to demonstrate compliance with state or federal audit disallowances.
Any financial statements or other financial documentation of Recipient previously delivered to the State Water Board as of the date(s) set forth in such financial statements or other financial documentation: (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 or other financial documentation, 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 or other financial documentation 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.
The Recipient has no conflicting or Material Obligations, except as set forth in this paragraph.
The Recipient has sufficient real or personal property rights necessary for the purposes of this Agreement, not subject to third party revocation, which rights extend at least to the Records Retention End Date of this Agreement, except as disclosed to the State Water Board. The Recipient has disclosed to the State Water Board all proceedings, actions, or offers of which the Recipient has knowledge or belief that may in any way affect the Recipient’s ability to access or legally possess all of the property necessary for the purpose of this Agreement, including any proceedings, actions, or offers to lease, purchase, or acquire by eminent domain any of the real or personal property related to or necessary for the Project.
The Recipient and its principals, contractors, and subcontractors, to the best of the Recipient’s knowledge and belief, are not presently debarred, suspended, proposed for debarment, declared ineligible, or otherwise excluded from participation in any work overseen, directed, funded, or administered by the State Water Board program for which this funding is authorized; nor have they engaged or permitted the performance of services covered by this Agreement from parties that are 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.
The Recipient possesses all water rights necessary for this Project.
D
.3 ACKNOWLEDGEMENTS
The Recipient must include the following acknowledgement in any document, written report, or brochure to be shared with the general public prepared in whole or in part pursuant to this Agreement:
ATTACHMENT A
City of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
• “Funding for this project has been provided in full or in part under 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. The contents of this document do not necessarily reflect the views and policies of the foregoing, nor does mention of trade names or commercial products constitute endorsement or recommendation for use.”
D.4 RATES, FEES, AND CHARGES
The Recipient must, to the extent permitted by law, fix, prescribe and collect rates, fees and charges for the System during each Fiscal Year which are reasonable, fair, and nondiscriminatory and which will be sufficient to generate Revenues in the amounts necessary to cover Operations and Maintenance Costs, and must ensure that Net Revenues are in an amount necessary to meet its obligations under this Agreement. The Recipient may make adjustments from time to time in such fees and charges and may make such classification thereof as it deems necessary, but shall not reduce the rates, fees and charges then in effect unless the Net Revenues from such reduced rates, fees, and charges will at all times be sufficient to meet the requirements of this section.
D.5 RESERVED
D.6 RESERVED
D.7 TECHNICAL SPECIAL CONDITIONS
1) The Recipient shall not solicit bids, award a contract, or commence construction activities until final plans and specifications are approved by the Division’s Project Manager. The Recipient shall notify the Division when the Project is fifty (50) percent and a hundred (100) percent complete.
2) The Recipient must submit executed consolidation agreements with the owners of the Century Mobile Home Park (MHP) water system, Sunny Road water system, and the residential property on 3509 Sunny Road (Jack Lo property), satisfactory to the Division’s counsel, and receive written approval from the Project Manager to proceed prior to soliciting bids, awarding a contract, or commencing construction activities. No Project Funds may be disbursed for construction costs before this condition is satisfied.
3) The Recipient acknowledges and understands that the Division will not authorize disbursements for construction costs until the Recipient has provided evidence satisfactory to the Division that the Recipient has obtained the necessary LAFCo approval to proceed with the Project.
D.8 FUNDS RELATED TO CONTAMINATION
(a) As a condition precedent to this Agreement and prior to any disbursement, the Recipient shall (i) notify the Division of any demands made by the Recipient against third parties for monetary damages, reimbursement of costs, or other relief, including litigation, related to drinking water contamination, including but not limited to contamination by 1,2,3-trichloropropane (1,2,3-TCP); and (ii) unless waived by the Division, notify and provide to the Division copies of any agreements with third parties (e.g., settlement agreements, consent agreements, etc.) or court or administrative orders arising out of litigation or disputes related to contamination of the drinking water associated with the Project.
(b) After execution of this Agreement, the Recipient shall notify the Division promptly of the new occurrence of any matters requiring notice under paragraph (a), above. Upon request, the Recipient shall promptly provide information and copies of documents as requested by the Division.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
(c) T
he Recipient shall place all funds received after the date of this Agreement under any order or agreement described in paragraphs (a)(ii) and (b), above, into a restricted account to be used either for a c
apital improvement project that addresses the contamination, or for operation and maintenance of treatment or remediation of the contamination. Alternatively, upon consent of the Division, the funds received after the date of this Agreement under any such order or agreement shall be used as matc h f
unding for the Project or held in a restricted reserve account to support the financial capacity of th e S
ystem.
(
d) T
he amount of this Agreement may be reduced, and/or disbursements withheld, to offset amounts received under any contamination-related order or agreement described in paragraphs (a)(ii) or (b), above, to avoid double recovery. Noncompliance with paragraphs (a), (b), or (c) above shall be an Event of Default.
D
.9 APPOINTMENT OF RECEIVER OR CUSTODIAN
Upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the State Water Board under this Agreement, the State Water Board may make application for the appointment of a receiver or custodian of the Revenues, pending such proceeding, with such power as the court making such appointment may confer.
D
.10 RETURN OF FUNDS
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, to immediately return to the State Water Board any grant or principal forgiveness amounts received pursuant to this Agreement and pay interest at the highest legal rate on all of the foregoing.
D
.11 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.
D
.12 RESERVED
D.13 OPERATION AND MAINTENANCE
The Recipient shall sufficiently and properly staff, operate, and maintain the facility and structures constructed or improved as part of the Project throughout the term of this Agreement, consistent with the purposes of this Agreement. 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.
D
.14 INSURANCE
T
he Recipient will procure and maintain or cause to be maintained insurance on the System/ Project with responsible insurers, or as part of a reasonable system of self-insurance, in such amounts and against such risks (including damage to or destruction of the System/Project) as are usually covered in connection with systems similar to the System/Project. 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
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
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.
I
n the event of any damage to or destruction of the System/Project caused by the perils covered by such insurance, the net proceeds thereof shall be applied to the reconstruction, repair or replacement of the damaged or destroyed portion of the System/Project. 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 System/Project must be free and clear of all claims and liens.
R
ecipient agrees that for any policy of insurance concerning or covering the construction of the Project, 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 the commencement of construction of the Project.
D
.15 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 Project during the Useful Life of the Project without prior written approval of the Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all 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.
D
.16 NOTICE
Upon the occurrence of any of the following events, the Recipient must notify the Division’s Deputy Director and Party Contacts by phone and email within the time specified below:
(a) Within 24 hours, the Recipient must notify the Party Contacts by phone and by email, and also notify the Division by phone at (916) 327-9978 and by email to [email protected] 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 discover ed dur
ing 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 m ade r
ecommendations 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 and Party Contacts promptly of the occurrence of any of th e f
ollowing events:
i. Bankruptcy, insolvency, receivership or similar event of the Recipient, or actions taken in anticipation of any of the foregoing;
ii. Change of ownership of the Project (no change of ownership may occur without written consent of the Division);
iii. Loss, theft, damage, or impairment to Project;
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
iv. Events of Default, except as otherwise set forth in this section; v. A proceeding or action by a public entity to acquire the Project by power of eminent domain.
vi. Any litigation pending or threatened with respect to the Project or the Recipient’s technical, managerial or financial capacity or the Recipient’s continued existence; vii. Consideration of dissolution, or disincorporation; viii. Enforcement actions by or brought on behalf of the State Water Board or Regional Water Board.
ix. The discovery of a false statement of fact or representation made in this Agreement or in the application to the Division for this funding, or in any certification, report, or request for reimbursement made pursuant to this Agreement, by the Recipient, its employees, agents, or contractors;
x. Any substantial change in scope of the Project. The Recipient must undertake no
s
ubstantial change in the scope of the Project until prompt written notice of the pr
oposed change has been provided to the Division and the Division has given w
ritten approval for the change;
xi. Any circumstance, combination of circumstances, or condition, which is expected t o or
does delay Completion of Construction for a period of ninety (90) days or more; xii. Cessation of all major construction work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more; xiii. The Recipient must promptly notify the Division and Party Contacts of the discovery of any unexpected endangered or threatened species, as defined in the federal Endangered Species Act. Should a federally protected species be unexpectedly encountered during implementation of the Project, the Recipient agrees to promptly notify the Division. This notification is in addition to the Recipient’s obligations under the federal Endangered Species Act;
xiv. Any Project monitoring, demonstration, or other implementation activities required in this Agreement;
xv. Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by stat e
r
epresentatives with at least ten (10) working days’ notice to the Division; xvi
. Any event requiring notice to the Division pursuant to any other provision of this Agreement;
xvii. The award of the prime construction contract for the Project; and the initiation of construction of the Project; and
xviii. Completion of Construction, and Project Completion.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
D.17 FRAUD, WASTE, AND ABUSE.
The Recipient shall prevent fraud, waste, and the abuse of Project Funds, and shall cooperate in any investigation of such activities that are suspected in connection with this Agreement. The Recipient understands that discovery of any evidence of misrepresentation or fraud related to Reimbursement Requests, invoices, proof of payment of invoices, or other supporting information, including but not limited to double or multiple billing for time, services, or any other eligible cost, may result in an administrative action by the State Water Board and/or referral to the Attorney General’s Office or the applicable District Attorney’s Office for appropriate action. The Recipient further understands that any suspected occurrences of false claims, misrepresentation, fraud, forgery, theft or any other misuse of Project Funds may result in withholding of reimbursements and/or the termination of this Agreement requiring the immediate repayment of all funds disbursed hereunder. A person who knowingly makes or causes to be made any false statement, material misrepresentation, or false certification in any submittal may be subject to a civil penalty, criminal fine, or imprisonment. (Wat. Code, § 13490 et seq.) D
.18 DISPUTES.
The Recipient must continue with the responsibilities under this Agreement during any dispute. The Recipient may, in writing, appeal a staff decision within 30 days to the Deputy Director of the Division or designee, for a final Division decision. The Recipient may appeal a final Division decision to the State Water Board within 30 days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative to its final resolution, which will be provided to the State Water Board’s Executive Director and each State Water Board Member. Upon the motion of any State Water Board Member, the State Water Board will review and resolve the dispute in the manner 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. This provision 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.
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.
D.19 EXECUTIVE ORDER N-6-22 – RUSSIAN SANCTIONS.
On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State Water Board determine Recipient is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this Agreement. The State Water Board shall provide Recipient advance written notice of such termination, allowing Recipient at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State Water Board.
T
he Recipient represents that the Recipient is not a target of economic sanctions imposed in response to Russia’s actions in Ukraine imposed by the United States government or the State of California. The Recipient is required to comply with the economic sanctions imposed in response to Russia’s actions in Ukraine, including with respect to, but not limited to, the federal executive orders identified in California Executive Order N-6-22, located at https://www.gov.ca.gov/wp-cont ent/uploads/2022/03/3.4.22-Russia-
Ukraine-Executive-Order.pdf and the sanctions identified on the United States Department of the Treasury website (https://home.treasury.gov/policy-is sues/financial-sanctions/sanctions-programs-and- country-information/ukraine-russia-related-sanctions). The Recipient is required to comply with all applicable reporting requirements regarding compliance with the economic sanctions, including, but not limited to, those reporting requirements set forth in California Executive Order N-6-22 for all Recipients
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
with one or more agreements with the State of California with an aggregated value of Five Million Dollars ($5,000,000) or more. Notwithstanding any other provision in this Agreement, failure to comply with the economic sanctions and all applicable reporting requirements may result in termination of this Agreement.
F
or Recipients with an aggregated agreement value of Five Million Dollars ($5,000,000) or more with the State of California, reporting requirements include, but are not limited to, information related to steps taken in response to Russia’s actions in Ukraine, including but not limited to:
1. D
esisting from making any new investments or engaging in financial transactions with R
ussian institutions or companies that are headquartered or have their principal place of business in Russia;
2. N
ot transferring technology to Russia or companies that are headquartered or have their principal place of business in Russia; and
3. D
irect support to the government and people of Ukraine.
D
.20 STATE CROSS-CUTTERS
Recipient represents that, as applicable, it complies and covenants to maintain compliance with the following for the term of the Agreement:
• T
he California Environmental Quality Act (CEQA), as set forth in Public Resources Code 21 000 et
seq. and in the CEQA Guidelines at Title 14, Division 6, Chapter 3, Section 15000 et seq. • W
ater Conservation requirements, including regulations in Division 3 of Title 23 of the California C
ode of Regulations.
• Mont
hly Water Diversion Reporting requirements, including requirements set forth in Water Co de s
ection 5103.
• P
ublic Works Contractor Registration with Department of Industrial Relations requirements, including requirements set forth in Sections 1725.5 and 1771.1 of the Labor Code. • V
olumetric Pricing & Water Meters requirements, including the requirements of Water Co de s
ections 526 and 527.
• U
rban Water Management Plan requirements, including the Urban Water Management Plannin g A
ct (Water Code, § 10610 et seq.).
• U
rban Water Demand Management requirements, including the requirements of Secti on 1060
8.56 of the Water Code.
• D
elta Plan Consistency Findings requirements, including the requirements of Water Code sectio n 8522
5 and California Code of Regulations, title 23, section 5002. • A
gricultural Water Management Plan Consistency requirements, including the requirements of Water Code section 10852.
• C
harter City Project Labor Requirements, including the requirements of Labor Code section 1782 and Public Contract Code section 2503.
ATTACHMENT A
C ity of Stockton
Project No. 3910012-001C
Agreement No.: D2202045
Exhibit D
• The Recipient agrees that it will, at all times, comply with and require its contractors and subc
ontractors to comply with directives or orders issued pursuant to Division 7 of the Water Code.
ATTACHMENT A