1 Consultant/Professional Services Provider Agreemen t/Ninyo & Moore Geotechnical & Environmental Sciences Consultants/Project ESC26-0 05
ATTACHMENT B
CO
NSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
E
NVIRONMENTAL CONSULTING SERVICES FOR SITE CLEANUP
SUBACCOUNT PROGRAM (SCAP) GRANT FOR
FORMER NUWAY DRY CLEANERS PROPERTY (ESC26-005)
1 Consultant/Professional Services Provider Agreement/Ninyo & Moore Geotechnical & Environmental Sciences Consultants/Project ESC26-005
CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
CITY OF VICTORVILLE, A MUNICIPAL CORPORATION,
AS SUCCESSOR TO THE HOUSING ASSETS
OF THE VICTORVILLE REDEVELOPMENT AGENCY
AND
NINYO & MOORE GEOTECHNICAL AND
ENVIRONMENTAL SCIENCES CONSULTANTS
FOR
SITE CLEANUP SUBACCOUNT PROGRAM (SCAP) GRANT FOR
S0048 FORMER NUWAY DRY CLEANERS,
PROJECT ESC26-005
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “Agreement”), dated this ______ day of ______________, 2025, for reference purpose only, is made and entered into by and between The City of Victorville, a municipal corporation, on its own behalf and in its capacity as the Successor to the Housing Assets of the Victorville Redevelopment Agency, a California redevelopment agency, located in the County of San Bernardino, State of California, hereinafter referred to as the “City”, and Ninyo & Moore Geotechnical & Environmental Sciences Consultants, a California corporation, located in the State of California, hereinafter referred to as “ Consultant.” City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the City requires Consultant/Professional Services for Site Cleanup Subaccount Program (SCAP) Grant for S0048 Former Nuway Dry Cleaners; and
WHEREAS, Consultant represents that it is fully qualified to perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and expertise of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the City desires to retain the services of a qualified Consultant to provide, on an independent contractor basis , Site Cleanup Subaccount Program (SCAP) Grant for S0048 Former Nuway Dry Cleaners; and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS, AND
PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth fully herein.
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Section 2. SCOPE OF SERVICES
Consultant shall provide to the City those services set forth in the Scope of Services, attached hereto as Exhibit “A”, and incorporated as part of this Agreement by this reference.
Section 3. COMPENSATION
The City shall pay to Consultant a sum not to exceed Four Hundred Eighty-three Thousand Three Hundred Fifty-three and 00/100 Dollars ($483,353.00), for faithful performance of the services to be rendered under this Agreement, subject to the Proposal provisions of Section 4, below . No expense reimbursements, including, but not lim ited to, reimbursements for travel, parking, lodging, and/or meals shall be paid to Consultant unless such expense reimbursements:
(i) are specifically provided for and described by nature and type in Exhibit “B”, below; (ii) appear on Consultant’s monthly invoices to City; (iii) are supported by the appropriate receipts and other such documentation as the City shall require; and (iv) are directly related to the Scope of Services to be performed under this Agreement. In addition, any and all reimbursements shall be made in accordance with any City policy governing same.
Section 4. PROPOSAL
The City shall pay Consultant as provided in the Proposal, attached hereto as Exhibit “ A”, and incorporated as part of this Agreement by this reference. The provisions of Exhibit “B” notwithstanding, in order to receive payments, Consultant shall be required to submit to the City detailed monthly invoices which include, if applicable, a description of all services/tasks performed, the number of hours expended on each service/task, the name of the person performing the service/task, and expense reimbursement information, if any, as required by Section 3, above.
Provided that services have been satisfactorily rendered, invoices shall be paid by the City approximately thirty (30) working days following receipt of Consultant’s invoice.
Section 5. RESERVED
Section 6. TERM OF AGREEMENT
This Agreement shall be for an Initial Term commencing on the date of full execution of the Agreement (the “Commencement Date”) and expiring February 29, 2028 (the “Termination Date”) (the “Term”) , unless terminated earlier pursuant to Section 21 of this Agreement. From and after the Termination Date, and upon subsequent agreement by the Parties, this Agreement may continue on a month-to-month basis until terminated pursuant to Section 21 below.
Section 7. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the Parties that Consultant is an independent contractor and not an employee, agent, joint ventures, or partner of the City. Nothing in this agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the City and Consultant or any employee or agent of Consultant . Both P arties acknowledge that Consultant is not an employee for state or federal tax purposes or any other purpose. Consultant shall retain the right to perform services for others during the term of this agreement.
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Section 8. REPRESENTATIONS AND ACKNOWLEDGMENTS REGARDING INDEPENDENT CONTRACTOR’S STATUS OF CONSULTANT
a. Consultant represents and acknowledges the following:
(1) The City is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement.
(2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City.
(3) The services described in this Agreement can be performed without the use of City equipment, materials, tools, or facilities, unless otherwise provided under a separate agreement.
(4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement.
(5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage, or other such compensation to any person employed by Consultant to perform the services described in this Agreement.
(6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the City.
b. The City represents and acknowledges the following:
(1) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement.
(2) The City will not hire, supervise, or pay any employees or assistants working for Consultant pursuant to this Agreement.
(3) Nothing in this Agreement shall be interpreted to imply that Consultant must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement.
(4) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement.
(5) Consultant is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement.
(6) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at City Hall or on City-owned property.
(7) Other than attendance at required public meetings and public hearings and complying with the provisions of the Proposal set forth in Exhibit B and any procedural requirements set forth by law, Consultant is not required to perform the services set forth in this Agreement in any particular order or sequence.
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(8) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest.
Section 9. NOT AGENT OF THE CITY
a. Nothing contained in this Agreement shall be deemed, construed, or represented by the City or Consultant or by any third person to create the relationship of principal and agent.
b. Consultant shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind the City to any obligation whatsoever.
Section 10. LICENSES AND PERMITS
Consultant represents that it has obtained and will maintain at all times during the I nitial Term (and during the Option Period, if applicable) of this Agreement all business licenses, including but not limited to a City of Victorville business license, professional licenses or certifications, or permits necessary for performing the services described in this Agreement.
Section 11. STANDARD OF PERFORMANCE; WARRANTY
a. Consultant agrees to perform all services required by this Agreement in a professional and competent manner, in accordance with the degree of skill and diligence which is normally employed by reputable professionals performing similar services under similar conditions in the same or similar locality. Such services shall also be performed in a manner which i s reasonably satisfactory to Tony C. Camargo, Deputy City Manager, or his designee.
b. By executing this Agreement, Consultant warrants that it:
(1) Has thoroughly investigated and considered the services and work to be performed;
(2) Has investigated the issues regarding the scope of services to be provided;
(3) Has carefully considered how the services and related work should be performed; and
(4) Fully understands the facilities, difficulties and restrictions associated with performance of the services required by this Agreement.
Section 12. FAMILIARITY WITH WORK
Should Consultant discover any latent or unknown conditions materially differing from those inherent in the services or as represented by the City , Consultant shall immediately inform the City of such fact and shall not provide any services, except at Consultant 's risk, until written instructions are received from Tony Camargo, Deputy City Manager, or his designee.
Section 13. CONFLICTS OF INTEREST
Consultant covenants that it does not have any interest, nor shall it acquire any interest, directly or indirectly, which would conflict in any manner with the performance of Consultant ’s 5 Consultant/Professional Services Provider Agreement/Ninyo & Moore Geotechnical & Environmental Sciences Consultants/Project ESC26-005
services under this Agreement. Consultant further covenants that in the perfo rmance of services under this Agreement, no officer, employee or agent of Consultant having such interest shall be employed by it. In the event the City determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file such Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the City Clerk. Acquisition or maintenance of a conflicting interest by Consultant may result in termination of this Agreement by the City.
Section 14. COMPLIANCE WITH LAWS
Consultant shall comply with all local, state, and federal laws and regulations applicable to the services to be rendered hereunder, including any rule, regulation, or bylaw governing the conduct or performance of Consultant or its employees, officers, or board members.
Section 15. C OMMERCIAL GENERAL AND AUTOMOBILE LIABILITY
INSURANCE
a. Consultant shall procure and maintain at its own expense, during the Initial Term of this Agreement (and during the Option Period, if applicable) , Commercial G eneral Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Consultant or its officers, employees, servants, volunteers, and agents and independent contractors.
b. Consultant shall further procure and maintain, at its own expense, during the Initial Term of this Agreement , (and during the Option Period, if applicable), Commercial Vehicle Liability Insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit, covering any vehicle utilized by Consultant or its officers, employees, servants, volunteers, agents and independent contractors in performing the services required by this Agreement.
Section 16. WORKERS' COMPENSATION INSURANCE
a. Consultant shall procure and maintain at its own expense, during the Initial Term of this Agreement ( and during the Option Period, if applicable), W orkers' Compensation Insurance, providing coverage as required by the California State Workers' Compensation Law.
b. If any class of employees employed by the Consultant pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the City.
Section 17. PROFESSIONAL LIABILITY INSURANCE
Professional Liability Insurance or Errors and Omissions insurance as appropriate to Consultant’s profession shall be required and written on a policy form specifically designed to provide coverage for and protect against the negligent acts, errors and omissions of the Consultant in the performance of the services required by this Agreement. A minimum limit of $1,000,000 per claim and in the aggregate must be provided.
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Section 18. ADDITIONAL INSURED
Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, all insurance policies, except for the Workers' Compensation and Professional Liability, shall be endorsed to name the City and i ts officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the City Attorney, as Additional Insureds.
Section 19. WAIVER OF SUBROGATION RIGHTS
Consultant shall require the carriers of all required insurance policies , to waive all rights of subrogation against the City and its officers, employees, servants, volunteers, agents, and independent contractors and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver.
Section 20. PROOF OF INSURANCE COVERAGE; REQUIRED
ENDORSEMENTS
a. Consultant shall secure from a good and responsible company or companies authorized to transact insurance business in the State of California, the policies of insurance required by this Agreement and furnish to the City Clerk certificates of insurance evidencing the required coverage, and policy endorsements at least one (1) business day prior to the commencement of any services to be performed under this Agreement.
b. The policies and certificates of insurance shall be endorsed to provide that in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. In the case of cancellation for non-p ayment, ten (10) days advance written notice shall be given.
c. Each policy and certificate of insurance shall be endorsed to provide that the policy shall not be terminated or expire without first providing thirty (30) days written notice to the City of such termination or expiration.
d. Each policy and certificate of insurance shall be endorsed to provide that the policy will be maintained throughout the Initial Term ( and during the Option Period, if applicable), of this Agreement.
e. The commercial general liability and vehicle liability policies shall be endorsed to contain the following provision: “For any claims related to this contract, the Consultant’s insurance coverage shall be primary and non- contributory and at least as broad as I SO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self - insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.”
Section 21. TERMINATION OR SUSPENSION
a. This Agreement may be terminated or suspended without cause by either Party at any time, provided that the Party initiating the termination provides the other Party at least thirty (30) days advance written notice of such termination or suspension. In the event of such termination, the 7 Consultant/Professional Services Provider Agreement/Ninyo & Moore Geotechnical & Environmental Sciences Consultants/Project ESC26-005
City shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
b. This Agreement may be terminated or suspended with cause by either Party at any time, provided that the Party initiating termination provides the other Party at least ten (10) days advance written notice of such termination or suspension. In the event of such termination, the City shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
Section 22. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 23. INDEMNIFICATION
a. Except as set forth in Subsection b of this Section 23, and to the fullest extent permitted by law, Consultant shall immediately defend, indemnify, and hold harmless the City and, its officers, employees, representatives, and agents (the “ City Indemnitees”), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and reasonable attorneys’ fees, for any personal injuries, deaths, or property damage, including property owned by the City (collectively “Claims”) which may arise out of Consultant's negligence or willful misconduct in the performance of the services described in this Agreement, unless such Claims are proven to be caused by the negligence or willful misconduct of the City Indemnitees.
b. The provisions of this Subsection b. apply only in the event that Consultant is a design professional within the meaning of California Civil Code section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
(1) Notwithstanding the provisions of Subsection a . above, to the extent that the services to be provided under this Agreement are those of a Design Professional, Consultant's duty to indemnify, hold harmless, and defend the City Indemnitees shall be limited to the extent that any Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
(2) In no event shall the costs of defense charged to Consultant exceed the Consultant’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this reference.
Nothing in this Subsection b. shall be construed to require Consultant to provide indemnification for Claims caused by the active negligence or willful misconduct of the City Indemnitees.
c. The City does not and shall not waive any rights that it may have against Consultant under this Section, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions of this Section 23 shall apply regardless of whether said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense described herein.
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d. The obligation to indemnify and defend, as set forth in this Section 23, is binding on the successors, assigns, or he irs of Consultant and shall survive the expiration or any early termination of this Agreement.
Section 24. REPORTS
Upon request by Tony C. Camargo, Deputy City Manager, or his designee, or as otherwise required by this Agreement, including but not limited to, the Scope of Services set forth in Exhibit “A”, Consultant shall prepare and submit reports to the City concerning Consultant 's performance of the services required by this Agreement.
Section 25. RECORDS
a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable Tony C. Camargo, Deputy City Manager, or his designee to evaluate the cost and the performance of such services.
b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles.
c. Tony C. Camargo, Deputy City Manager, or his designee, shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
d. Records and supporting documents pertaining to the use of funds paid to Consultant hereunder shall be retained by Consultant and made available to Tony C. Camargo, Deputy City Manager, or his designee, for purposes of performing an audit for a period of five (5) years from the date of termination of this Agreement.
Section 26. RESERVED
Section 27. CONFIDENTIALITY; OWNERSHIP OF WORK
a. Any and all documents and information obtained from the City or pr epared by Consultant for the City shall be kept strictly confidential unless otherwise provided by applicable law. All City data, documents and information shall be returned to the City upon termination of the Agreement.
b. Any drawings, specifications, reports, records, documents, or other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of to Tony C. Camargo, Deputy City Manager, or his designee, or as required by applicable law.
c. Consultant shall not disclose to any other entity or person any information regarding the activities of the City , except with the prior written approval of Tony C. Camargo, Deputy City Manager, or his designee, or as required by applicable law.
d. All original documents, reports, designs, computer files and all other materials prepared by Consultant in the course of performing the services pursuant to this Agreement, whether completed or in progress, are the property of the City and shall be surrendered to the City 9 Consultant/Professional Services Provider Agreement/Ninyo & Moore Geotechnical & Environmental Sciences Consultants/Project ESC26-005
upon the completion of Consultant’s services or when requested by Tony C. Camargo, Deputy City Manager, or his designee. Such materials may be used, reused or otherwise disposed of by the City without the permission of Consultant.
e. Consultant’s covenants under this Section 28 shall survive the termination of this Agreement.
Section 28. PRINCIPAL REPRESENTATIVES
a. Anthony Lizzi, PG, CHG, Principal Geologist , is designated as the principal representative of Consultant for purposes of communicating with the City on any matter associated with the performance of the services set forth in this Agreement.
b. Tony C. Camargo, Deputy City Manager, or his designee, shall be the principal representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement.
c. Either Party may designate another individual as its principal representative by giving written notice of such designation to the other Party.
Section 29. MODIFICATIONS AND AMENDMENTS; EXTRA SERVICES
a. This Agreement may be modified or amended only by a written instrument signed by both Parties.
b. During the I nitial Term, the City may request that the Consultant perform Extra Services. As used herein, "Extra Services" means any services, which are determined by the City to be necessary for the proper completion of the revision of the Interim Groundwater Remediation Work Plan but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. A written instrument signed by both Parties shall be required to authorize performance of and payment for Extra Services.
Section 30. ENTIRE AGREEMENT
a. This Agreement supersedes any and all prior or contemporaneous agreements, either oral or written, between the City and Consultant with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any Party, except those covenants and agreements in this Agreement.
c. No agreement, statement, or promise with respect to the subject matter of this Agreement, which is not contained in this Agreement, or in a valid modification or amendment to this Agreement, shall be valid or binding on either Party.
Section 31. AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that 10 Consultant/Professional Services Provider Agreement/Ninyo & Moore Geotechnical & Environmental Sciences Consultants/Project ESC26-005
any uncertainty or ambiguity existing herein shall not be interpreted agains t either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
Notwithstanding the foregoing, the Parties agree that Exhibit “A” is attached hereto for reference purposes and to the extent there are any ambiguities, inconsistencies or conflicts between the terms of this Consultant/Professional Services Standard Provider Agreement and Exhibit “A” the terms of this Consultant/Professional Services Standard Provider Agreement shall control and nothing set forth in Exhibit “A” shall be deemed to supersede any of the provisions of this Consultant/Professional Services Standard Provider Agreement.
Section 32. NOTICES
a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To the City: Tony Camargo, Deputy City Manager
Economic Development Department
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Prasad Thimmappa, PE, QSD
Principal Engineer
Ninyo & Moore
Geotechnical & Environmental Sciences
Consultants
475 Goddard, Suite 200
Irvine, CA 92618
b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
Section 33. NON-LIABILITY OF CITY OFFICERS AND
EMPLOYEES
No officer or employee of the City shall be personally liable to Consultant , or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to Consultant or to its successor(s), or for any breach of any obligation of the terms of this Agreement.
Section 34. REVIEW BY ATTORNEYS
Each Party hereto has had its attorney(s) review this Agreement and all related documents.
Each Party hereto has consulted with its attorney(s) and has negotiated the terms of this Agreement based on such consultation.
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Section 35. WAIVER
a. No waiver shall be binding unless executed in writing by the Party making the waiver.
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.
c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of such provision or any of the remaining provisions of this Agreement.
Section 36. ASSIGNMENT
This Agreement shall not be assigned by either Party without prior written consent of the other Party.
Section 37. CARE OF WORK
The performance of services by Consultant or the payment of money by the City shall not relieve Consultant from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to the City, when such incomplete, inaccurate or defective work is due to the negligence of Consultant.
Section 38. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 39. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties.
Section 40. GENDER
In this Agreement, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another.
Section 41. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
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Section 42. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 43. DEFAULT
a. Failure or delay by any Party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct, or remedy the alleged default within fifteen (15) days after receipt of written notice specifying such default and shall diligently complete such cure, correction, or remedy, such Party shall not be deemed to be in default hereunder.
b. The Party claiming that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein.
c. Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
d. In the event that a default by any Party to this Agreement may remain uncured for more than fifteen (15) days following written notice, as provided above, the injured Party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings.
Section 44. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
Section 45. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
Section 46. ATTORNEYS’ FEES
In the event any action, suit, or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement, or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
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Section 47. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the City , until signed by the authorized representative(s) of Consultant, approved by the City’s Risk Manager, and executed by the authorized City personnel or Mayor.
Section 48. REPRESENTATIONS OF PARTIES AND PERSONS EXECUTING
AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
Section 49. COUNTERPARTS
This Agreement may be executed by the Parties in counterparts, and when executed by each of the Parties, each counterpart shall be deemed to be a part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
CITY OF VICTORVILLE, A MUNICIPAL NINYO & MOORE GEOTECHNICAL
CORPORATION, AS SUCCESSOR TO ENVIRONMENTAL SCIENCES
THE HOUSING ASSETS OF THE CONSULTANTS
VICTORVILLE REDEVELOPMENT AGENCY
By: ______________________________ By: ____________________________ Elizabeth Becerra, Prasad Thimmappa, PE, QSD
Mayor Principal Engineer
Dated: ____________________________ Dated: _________________________
By: ______________________________
Jennifer Thompson,
City Clerk
Dated: ___________________________
APPROVED AS TO STANDARD FORM:
By: ______________________________
Andre de Bortnowsky,
City Attorney
Dated: ___________________________
By: ______________________________
Sandra Bostick,
Risk Manager
Dated: ___________________________
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EXHIBIT A
SCOPE OF WORK/FEE SCHEDULE
SITE CLEANUP SUBACCOUNT PROGRAM (SCAP) GRANT
AGREEMENT No. D2410048
by and between
CITY OF VICTORVILLE (Recipient)
AND
CALIFORNIA STATE WATER RESOURCES CONTROL BOARD (State Water Board) for the purpose of the
S0048, NUWAY (FORMER) DRY CLEANERS (Project)
Health and Safety Code section 25299.50.6 and Resolution No. 2024-0023 P
ROJECT FUNDING AMOUNT: $483,353
ABILITY TO PAY CONTRIBUTION: $0
ESTIMATED REASONABLE PROJECT COST: $483,353
ELIGIBLE WORK START DATE: December 13, 2024
WORK COMPLETION DATE: February 29, 2028
FINAL REIMBURSEMENT REQUEST DATE: March 31, 2028
RECORDS RETENTION END DATE: February 28, 2031
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
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. The following documents are also incorporated by reference, as well as any documents incorporated by reference in Exhibit D:
None.
3. Party Contacts during the term of this Agreement are:
State Water Board City of Victorville
Section: Division of Financial
Assistance
Name: Lucia Tropeano, Project
Manager
Name: Keith C. Metzler,
City Manager
Address: 1001 I Street, 17th Floo r Address: 14343 Civic Drive City,
State Zip:
Sacramento, CA 95814 City, State
Zip:
Victorville, CA 92392
Phone:
(916) 327-9025 Phone: (760) 955-4823
Fax: (916) 341-5806 Fax: (760) 269-0082
Email: lucia.tropeano
@waterboards.ca.gov
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 Deputy Director with a copy to the Project Manager.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
4. The applicable regulatory agency and the caseworker assigned to this Project are:
Lahontan Regional Water Quality Control Board
Section: R6 Victorville
Name: Amanda Lopez, Caseworker
Address: 15095 Amargosa Road, Building 2,
Suite 210
City, State
Zip:
Victorville, CA 92394
Phone: (760) 241-7373
Fax: N/ A
Email: amanda.lopez @waterboards.ca.gov
Recipient must provide written notification to the Project Manager of any change in the applicable regulatory agency or the caseworker assigned to the Project.
5. Conditions precedent to this Agreement are set forth as follows:
None.
6. 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 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, and professional liability. (d) The Recipient is in compliance with all State Water Board funding agreements to which it is a party.
7. 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 EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
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.
IN WITNESS WHEREOF, this Agreement
has been executed by the parties hereto.
CITY OF VICTORVILLE:
By:
____________________________________
Name: Keith C. Metzler
Title: City Manager
Date: ______________________________
STATE WATER RESOURCES CONTROL
BOARD:
By:
____________________________________
Name: Joe Karkoski
Title: Deputy Director
Division of Financial Assistance
Date: _______________________________
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
EXHIBIT A SCOPE OF WORK AND SCHEDULE
A.1 PROJECT PURPOSE AND DESCRIPTION
The Project is for the benefit of the Recipient. The funding under this Agreement is for the purpose of performing the following work at 15595 8th Street, Victorville, California 92395: site investigation, remedial action, monitoring, and site closure.
A.2 WORK TO BE PERFORMED BY RECIPIENT
Note: All field activities shall incorporate the following requirements, as applicable.
Obtain access agreements, permits, utility clearances, traffic control, and Health and Safety Plan;
Comply with the applicable regulatory agency public noticing requirements; Notify the applicable regulatory agency staff at least ten (10) working days before commencement of field activities;
Mobilize and demobilize equipment, supplies, materials, and personnel; Analyze collected environmental, waste characterization, and quality assurance/quality control samples using a California-certified laboratory; Manage and dispose of investigation and/or remediation derived waste; Survey new permanent sampling points using a California-licensed surveyor; and Comply with California Code of Regulations, title 23, division 3, chapter 30:
Electronic Submittal of Information.
1. PROJECT MANAGEMENT
1.1 Provide technical and administrative services as needed for Project completion; plan, organize, direct, control, and report on the Project to complete the agreed- to scope on schedule and within the assigned budget in accordance with approved procedures, applicable statutes, and regulations.
1.2 Prepare correspondence, attend teleconferences, and participate in Joint Execution Team (JET) meetings through the work completion date.
2. SITE INVESTIGATION
2.1 Site Investigation Work Plan
2.1.1 Prepare and upload a Site Investigation Work Plan (SI Work Plan) to GeoTracker in accordance with the regulatory requirements. The SI Work Plan must include detailed plans to conduct additional step-out groundwater monitoring well installations and a Health and Safety Plan (HSP). The SI Work Plan also must include (as applicable) a review of files maintained at relevant regulatory agencies (e.g., environmental EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
health department, building department, and fire department), including but not limited to, hazardous materials business plans and chemical inventories, site and building inspection reports, underground storage tanks, historical photographs, Sanborn Fire Insurance Maps, one hundred (100)-year topographic maps, current and historical utility maps, supply well maps, historical sensitive receptor surveys, and historical geophysical surveys.
2.1.1.1 Obtain Regional Water Board concurrence with the SI Work Plan.
2.2 Well Installation
2.2.1 Install groundwater monitoring wells in accordance with the SI Work Plan. Two (2) groundwater monitoring wells are anticipated; if this number needs to be adjusted based on the data collected in Task 2, this will be done by consensus of the JET.
2.2.2 Develop newly installed groundwater wells at least forty-eight (48) hours after construction is complete.
2.2.3 Redevelop existing groundwater monitoring wells, as necessary.
2.2.4 Collect groundwater samples from newly installed and existing wells for volatile organic compound analysis (groundwater samples at least seventy-two [72] hours after well development and include samples for bench-scale analysis).
2.3 Reporting
2.3.1 Prepare and upload a Groundwater Monitoring Well Installation Report and associated electronic data submittals to GeoTracker in accordance with the regulatory requirements. The Well Installation Report must include a summary of site investigation activities and updates to the conceptual site model (CSM) with appropriately scaled geologic cross sections.
2.3.1.1 Obtain Regional Water Board concurrence with the Groundwater Monitoring Well Installation Report.
3. REMEDIAL ACTION
3.1 Remedial Action Plan Update
3.1.1 Prepare and upload an update to the existing Remedial Action Plan (RAP) dated July 22, 2022, and associated electronic data submittals to EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
GeoTracker. The RAP update will include a draft Operation and Maintenance (O&M) Plan and a draft Remedial Design (plans and specifications) as applicable for cleanup of chlorinated solvents in soil, soil vapor, and groundwater.
3.1.1.1 Obtain Regional Water Board concurrence with the updated RAP.
3.2 Soil Vapor Extraction System O&M
3.2.1 Conduct soil vapor extraction (SVE) activities with O&M and monitoring in accordance with the issuance of the Air Quality Management District air discharge permit and the RAP.
3.2.2 Prepare and upload quarterly SVE Progress Reports and associated electronic data submittals to GeoTracker in accordance with the RAP through the Work Completion Date. The first SVE Progress Report will include the SVE Installation and Startup Summary, photographs of the remediation system, and the final O&M Plan. Two (2) reports are anticipated; if this number needs to be adjusted based on SVE performance or system optimization, this will be done by consensus of the JET. SVE Progress Reports and Groundwater Monitoring Reports should be combined when able.
3.2.2.1 Obtain Regional Water Board concurrence with each SVE Progress Report.
3.3 In-situ Chemical Injections
3.3.1 Conduct (as applicable) in-situ reagent injection activities and associated monitoring in accordance with the RAP and the Remedial Design. This subtask includes construction of in-situ remediation injection wells/points and groundwater monitoring wells, and baseline and monitoring in accordance with the Waste Discharge Requirements (WDR) permit requirements.
3.3.2 Prepare and upload a Remediation Injection Summary Report and associated electronic data submittals to GeoTracker in accordance with the RAP. The report will include a summary of injection system installation activities and the final in-situ injection Sampling and Analysis Plan. One (1) report is anticipated; if this number needs to be adjusted based on DPE performance, this will be done by consensus of the JET.
3.3.2.1 Obtain Regional Water Board concurrence with each Remediation Injection Summary Report.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
3.4 Remedial Action Completion
3.4.1 Prepare and upload a Remedial Action Completion Report and associated electronic data submittals to GeoTracker.
3.4.1.1 Obtain Regional Water Board concurrence with the Remedial Action Completion Report.
4. MONITORING
4.1 Soil Vapor Well Sampling
4.1.1 Prepare and upload a Soil Vapor Well Monitoring Report and associated electronic data submittals to GeoTracker in accordance with the Advisory: Active Soil Gas Investigations (DTSC, July 2015) and the RAP. One (1) monitoring and sampling event is anticipated; if this number needs to be adjusted based on monitoring results, this will be done by consensus of the JET.
4.1.1.1 Obtain Regional Water Board concurrence with the Soil Vapor Well Monitoring Report.
4.2 Groundwater Monitoring
4.2.1 Prepare and upload quarterly Groundwater Monitoring Reports and associated electronic data submittals to GeoTracker in accordance with the RAP and WDR permit requirements through the Work Completion Date. Approximately four (4) monitoring and sampling events are anticipated; if this number needs to be adjusted based on monitoring results, this will be done by consensus of the JET.
4.2.1.1 Obtain Regional Water Board concurrence with each Groundwater Monitoring Report.
4.3 Indoor Air Sampling
4.3.1 Prepare and upload semi-annual Indoor Air Monitoring Reports and associated electronic data submittals to GeoTracker in accordance with the Final Draft Supplemental Guidance: Screening and Evaluating Vapor Intrusion, Department of Toxic Substances Control and State Water Board, February 2023 (Supplemental Guidance) and the RAP.
Two (2) monitoring and sampling events are anticipated; if this number needs to be adjusted based on monitoring results, this will be done by consensus of the JET.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
4.3.1.1 Obtain Regional Water Board concurrence with each Indoor Air Monitoring Report.
4.4 Reporting
4.4.1 Prepare and upload quarterly Monitoring Reports and associated electronic data submittals to GeoTracker through the Work Completion Date. Each report shall include iso-concentration maps for each chemical of concern in each media monitored and sampled, cumulative data tables, evaluations of hydraulic gradient, gradient maps, a summary of analytical results, trend plots, updates to the CSM, interpretations, recommendations, and conclusions. Approximately seven (7) monitoring reports are anticipated; if this number needs to be adjusted based on monitoring results, this will be done by consensus of the JET.
Monitoring Reports should be combined when necessary.
4.4.1.1 Obtain Regional Water Board concurrence with each Monitoring Report.
5. SITE CLOSURE
5.1 Remedial System and Well Decommissioning
5.1.1 Prepare and upload a Request for Site Closure Letter and associated electronic data submittals to GeoTracker.
5.1.1.1 Obtain Regional Water Board concurrence with the Request for Site Closure Letter.
5.1.2 Prepare and upload a Well Destruction and Site Closure Work Plan to GeoTracker. The work plan shall include the destruction of all permanent sampling point associated with the site, and
decommissioning of the SVE system.
5.1.2.1 Obtain Regional Water Board concurrence with the Well Destruction and Site Closure Work Plan.
5.1.3 Destroy selected extraction and/or groundwater/ soil vapor monitoring wells in accordance with the Well Destruction and Site Closure Work Plan.
5.1.4 Demobilize the system surface equipment and restore the site to pre- existing conditions in accordance with the Well Destruction and Site Closure Work Plan.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
5.1.5 Prepare and upload a Well Destruction and Site Closure Report and associated electronic submittals to GeoTracker that includes documented waste removal.
5.1.5.1 Obtain Regional Water Board concurrence with the Well Destruction and Site Closure Report.
A.3 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 may require an amendment to this Agreement. The Recipient must complete and submit all work in time to be approved by the Division prior to the Work Completion Date. 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
COMPLETED
DATE
EXHIBIT A SCOPE OF WORK AND SCHEDULE
A.2 WORK TO BE PERFORMED
BY RECIPIENT
2. SITE INVESTIGATION
2.1.1 Upload SI Work Plan to
GeoTracker
June 2025
2.3.1 Upload Groundwater
Monitoring Well Installation
Report and associated
electronic data submittals to
GeoTracker
September
2025
3. REMEDIAL ACTION
3.1.1 Upload RAP and associated
electronic data submittals to
GeoTracker
September
2025
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
ITEM DESCRIPTION OF
SUBMITTAL
CRITICAL
DUE DATE
ESTIMATED
DUE DATE
COMPLETED
DATE
EXHIBIT A SCOPE OF WORK AND SCHEDULE
3.2.2 Upload SVE Progress Reports
and associated electronic data
submittals to GeoTracker
Quarterly,
Begin
January
2025 and
through the
Work
Completion
Date
3.3.2 Upload Remediation Injection
Summary Report and
associated electronic data
submittals to GeoTracker
December
2025
3.4.1 Upload Remedial Action
Completion Report to
GeoTracker
August 2027
4. MONITORING
4.1.1 Upload Soil Vapor Well
Monitoring Report and
associated electronic data
submittals to GeoTracke
r
July 2026
4.2.1 Upload Groundwater
Monitoring Reports and
associated electronic data
submittals to GeoTracker
Quarterly,
Begin
January
2025 and
through the
Work
Completion
Date
4.3.1 Upload Indoor Air Monitoring
Reports and associated
electronic data submittals to
GeoTracker
January
2027
July 2027
4.4.1 Upload Monitoring Reports and
associated electronic data
submittals to GeoTracker
Quarterly,
Begin
January
2025 and
through the
Work
Completion
Date
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
ITEM DESCRIPTION OF
SUBMITTAL
CRITICAL
DUE DATE
ESTIMATED
DUE DATE
COMPLETED
DATE
EXHIBIT A SCOPE OF WORK AND SCHEDULE
5. SITE CLOSURE
5.1.1 Upload Request for Site
Closure Letter and associated
electronic data submittals to
GeoTracker
September
2027
5.1.2 Upload Well Destruction and
Site Closure Work Plan to
GeoTracker
November
2027
5.1.5 Upload Well Destruction and
Site Closure Report and
associated electronic data
submittals to GeoTracker
December
2027
2. Draft Project Report January 31,
2028
3. Final Project Report February 29,
2028
EXHIBIT B SPECIFIC FUNDING PROVISIONS
B.6 REIMBURSEMENT
PROCEDURE
1. Reimbursement Requests Quarterly
4(f) Final Reimbursement Request March 31,
2028
The Recipient must deliver any request for extension of the Work Completion Date no less than 90 days prior to the Work Completion Date.
A.4 PROGRESS REPORTS
Recipient must submit a progress report to the Project Manager monthly by the seventh day of each month, beginning no later than 30 days after execution of this Agreement.
1. The progress reports must provide a brief description of the work performed, any accomplishments during the month, milestones achieved, sampling results (if applicable), and any problems encountered in the performance of the work under this Agreement. Recipient must document all contractor activities in progress reports.
2. Invoicing can be either monthly or quarterly. When invoicing monthly, the invoice should accompany the progress report. When invoicing quarterly, the EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit A
invoice must itemize charges for the work completed during the reporting period covered by the monthly progress reports for that quarter. The invoice cannot be paid prior to submission of (a) progress report(s) covering the invoice reporting period.
A.5 SPECIAL REPORTS
1. As a condition precedent to the Divisions determination of Project Completion and release of withheld Project Funds, if any, the Recipient must submit documentation satisfactory to the Division that the applicable regulatory agency has deemed the work complete.
2. Recipient must prepare and submit to the Project Manager a draft Project Report for review and comment.
3. Recipient must prepare a final Project Report that addresses, to the extent feasible, comments made by the Project Manager on the draft final Project Report. Submit one (1) reproducible master, and an electronic copy of the final.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit B
EXHIBIT B SPECIFIC FUNDING PROVISIONS
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 DOUBLE PAYMENT PROHIBITION
Pursuant to Health and Safety Code, section 25299.50.6, subdivision (e)(2), the Recipient is prohibited from receiving Project Funds for any costs which the Recipient has been, or will be, paid by another source.
The Recipient must disclose to the State Water Board all moneys that the Recipient, an affiliate, or anyone acting on the Recipients behalf has received or may receive that are in any way related in whole or in part to the contamination that is the subject of this Agreement, no matter how the payment is characterized or the Recipients own belief as to whether the receipt of those moneys constitutes double recovery. Recipients must fully disclose all moneys received on a Non-Recovery From Other Sources Disclosure Certification so that the State Water Board can make its own independent determination of whether the receipt of those moneys constitutes double recovery.
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 Recipients failure to comply with this requirement may be construed as a material breach of this Agreement.
B.4 BUDGET COSTS
Budget costs are contained in the Project Cost Table below:
The maximum amount to be encumbered under this Agreement for the 2024-25 fiscal year ending June 30, 2025 shall not exceed FOUR HUNDRED EIGHTY-THREE THOUSAND THREE HUNDRED FIFTY-THREE DOLLARS ($483,353).
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit B
ITEM DESCRIPTION TOTAL
1 Project Management $32,760
2 Site Investigation $69,722
3 Remedial Action $148,547
4 Monitoring $124,166
5 Site Closure $108,158
TOTAL $483,353
Available Site Contingency Adjustment $0
Less Ability To Pay $0
PROJECT FUNDING AMOUNT $483,353
B.5 LINE ITEM ADJUSTMENTS
1. Subject to the prior review and approved, in advance and in writing, by the Project Manager, adjustments between existing line items may be used to defray allowable direct costs up to fifteen percent (15%) of the total Project Funding Amount available in any Fiscal Year, including any amendment(s) thereto. Line item adjustments approved by the Project Manager must be de minimis, less than fifteen percent (15%) of the total Project Funding Amount available in any Fiscal Year, and may not include any changes to the Scope of Work. Except as provided for the Available Site Contingency Adjustment, line item adjustments in excess of fifteen percent (15%) or line item adjustments that result in a change to the scope of work will require an Agreement amendment. If the detailed budget includes an amount for the Recipients personnel costs, that amount is based on the hours, classifications, and rates submitted by the Recipient in its application. Any changes to the hours, classifications, and rates must be task-appropriate, within the item budget and line item adjustments allowed, and approved, in advance and in writing, by the Project Manager.
2. The Recipient may submit a request for an adjustment in writing to the Project Manager. Such adjustment may not increase or decrease the total funding amount available in any Fiscal Year. The Recipient shall submit a copy of the original Agreement budget sheet reflecting the requested changes and shall note proposed changes by striking out the original amount(s) followed with proposed change(s) in bold and underlined. Except as provided for the Available Site Contingency Adjustment, budget adjustments deleting a budget line item or adding a new budget line item shall require a formal amendment. The Division may also propose budget adjustments.
3. The sum of adjusted line items shall not exceed the total budget amount available in any Fiscal Year.
4. The Recipient shall not be entitled to any reimbursement from the Available Site Contingency Adjustment budget line item without prior approval in writing from the EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit B
Division. The Available Site Contingency Adjustment budget line item is available only for reasonable and necessary project costs, which for good cause, exceed the funds allotted for the Total Budgeted Costs, and must be approved by the Cleanup Fund Branch Assistant Deputy Director prior to use. The State Water Board may, at its discretion, require a formal Agreement amendment rather than use funds in the Available Site Contingency Adjustment budget line item.
B.6 REIMBURSEMENT PROCEDURE
1. No reimbursement under this Agreement will be made except upon receipt of an acceptable Reimbursement Request form duly executed by or on behalf of the Recipient. The Recipients authorized signatory or designee, who has been approved by the State Water Board, must execute all Reimbursement Request forms. A Reimbursement Request form must accompany all Reimbursement Requests. The Reimbursement Request form with original invoices or unmodified copies of original invoices shall be submitted to the State Water Boards Project Manager on either a monthly or quarterly basis consistent with the invoicing schedule in this Agreement. The submittal must be made either through approved electronic means or at the following address:
Lucia Tropeano, Project Manager
State Water Resources Control Board
Division of Financial Assistance
SCAP
P. O. Box 944212
Sacramento, CA 94244-2120
2. The Project Costs requested must be for the remediation of harm or threat of harm to human health, safety, and the environment caused by existing or threatened surface or groundwater contamination. The State Water Board may pay eligible Project Costs of remediation actions that are reasonable and necessary. The Recipient may not receive reimbursement from the State Water Board for remediation actions that have been or will be paid or otherwise compensated from another source.
3. Reimbursement of any Project Costs shall be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed Reimbursement Request. Reimbursement Requests must be itemized based on the line items specified in the Budget Costs in this Exhibit. Reimbursement Requests submitted in any other format than the one provided by the State Water Board will cause a Reimbursement Request to be disputed. In the event of a Reimbursement Request dispute, the State Water Board will notify the Recipient. Reimbursement will not be made until the dispute is resolved and a corrected Reimbursement Request submitted. Failure to use the address exactly as provided above may result in return of the Reimbursement Request to the Recipient. Reimbursement shall be deemed complete upon deposit of the reimbursement, properly addressed, postage EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit B
prepaid, in the United States mail. The State Water Board Project Manager has the responsibility for approving Reimbursement Requests.
4. Reimbursement Requests must contain the following information:
(a) The date of the request;
(b) The time period covered by the request, i.e., the term from and to; (c) The total amount requested;
(d) Original invoices or unmodified copies of original invoices supporting all requested costs;
(e) Physical, handwritten signature and date (in ink) of the Recipients authorized signatory or designee or an electronic signature and date signed by the Recipients authorized signatory or designee using a method approved by the State Water Board; and
(f) Final Reimbursement Request sh all be clearly marked FINAL REIMBURSEMENT REQUEST and submitted NO LATER THAN
MARCH 31, 2028.
5. Each invoice submitted with a Reimbursement Request shall contain the following information:
(a) The word INVOICE and a sequential invoice number should appear in a prominent location at the top of the page(s);
(b) The date of the invoice and the time period covered by the invoice, i.e., the term from and to;
(c) Printed name of the consultant or contractor;
(d) Business address of the consultant or contractor, including P.O. Box, City, State, and Zip Code;
(e) Printed name of the Recipient;
(f) The number of the Agreement upon which the invoice is based; (g) The site address (location) where the work was performed. (h) All subcontractor(s) invoices must be listed on the invoice; a copy of the subcontractor invoice should be attached to the consultant/contractor invoice. All subcontractor(s) must have current and active professional licenses, as applicable.
(i) Physical, handwritten signature and date (in ink) of Recipients authorized signatory or designee or an electronic signature and date signed by the Recipients authorized signatory or designee using a method approved by the State Water Board.
(j) An itemized account of the work for which the Recipient is seeking payment:
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit B
A brief description of the work performed, including dates of performance and the name or initials of the person performing the work; The method of computing the amount due; (On cost reimbursable agreements, invoices must be itemized based on the tasks specified in the Budget.)
The total amount due; this should be in a prominent location in the lower right- hand portion of the last page and clearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include all costs incurred by the Recipient under the terms of this Agreement; and Such other documents, certificates, instruments, opinion, or other writings as the State Water Board may reasonably request.
6. Recipient agrees that it will not submit any Reimbursement Requests that include any Project Costs until such costs have been incurred and are currently due and payable by the Recipient.
7. Recipient shall provide proof of payment to the consultant or contractor for each invoice submitted with a Reimbursement Request under this Agreement. If the recipient is not able to demonstrate proof of payment, the State Water Board, at its discretion, may issue two-party checks for the payment of costs identified in the Budget Costs in this Exhibit. The two-party checks will require the endorsement of both Recipient and the company providing the services.
8. 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, rules, or regulations, or which may require any rebates to the Federal Government, or any loss of tax-free status on state bonds, pursuant to any Federal statute or regulation.
9. Notwithstanding any other provision of this Agreement, the Recipient agrees that the State Water Board may retain ten percent (10%) of the amount specified in this Agreement until Final Project Summary from local regulatory agency of the Project is received. Any retained amounts due to the Recipient will be promptly disbursed to the Recipient, without interest, upon completion of the Project.
B.7 REVERTING FUNDS AND DISENCUMBRANCE
In the event the Recipient does not submit Reimbursement Requests for all funds encumbered under this Agreement by the Final Reimbursement Request Date, 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.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
EXHIBIT C GENERAL TERMS AND CONDITIONS 2019-NOV
1. DEFINITIONS. Unless otherwise specified in this Agreement, each capitalized term used in this Agreement has the following meaning:
Agreement means this agreement, incl uding all exhibits and attachments hereto.
Cover Page means the front page of this Agreement. Days means calendar days unless otherwise expressly indicated. Deputy Director means the Deput y Director of the Division. Division means the Divis ion of Financial Assistance of the State Water Board or any other division or unit of the State Water Board authorized to administer this Agreement.
Event of Default means the occurr ence of any of the following events:
a) A representation or warranty made by or on behalf of the Recipient in this Agreement or in any document furnished by or on behalf of the Recipient to the State Water Board pursuant to this Agreement shall prove to have been inaccurate, misleading or incomplete in any material respect; b) Failure by the Recipient to observe and perform any covenant, condition, or provision in this Agreement, which failure shall continue for a period of time, to be determined by the Division;
c) Initiation of proceedings seeking arrangement, reorganization, or any other relief under any applicable bankruptcy, insolvency, or other similar law; the appointment of or taking possession of the Recipients property by a receiver, liquidator, assignee, trustee, custodian, conservator, or similar official; the Recipients entering into a general assignment for the benefit of creditors; the initiation of resolutions or proceedings to terminate the Recipients existence, or any action in furtherance of any of the foregoing; d) A determination pursuant to Gov. Code section 11137 that the Recipient has violated any provision in Article 9.5 of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code; or e) Loss of the Recipients rights, licenses, permits, or privileges necessary for the Project, or the occurrence of any material restraint on the Recipients enterprise by a government agency or court order.
Final Reimbursement Request Date means the date set forth as such on the Cover Page of this Agreement, after which date, no further reimbursements or disbursements may be requested.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
Fiscal Year means the period of twelve (12) months terminating on June 30 of any year.
GAAP means generally accepted accountin g principles, the uniform accounting and reporting procedures set forth in publications of the American Institute of Certified Public Accountants or its successor, or by any other generally accepted authority on such procedures, and includes, as applicable, the standards set forth by the Governmental Accounting Standards Board or its successor, or the Uniform System of Accounts, as adopted by the California Public Utilities Commission for water utilities.
Material Obligation means an obligation of the Recipient that is material to this transaction.
Party Contact means, fo r the Recipient, the Authorized Representative of the Recipient or any designee of the Authorized Representative, and, for the State Water Board, the Division staff set forth in Section 2 of this Agreement. Project means the Project funded by this Agreement as described in Exhibits A and B and in the documents incorporated by reference herein. Project Completion means, as determined by the Division, that the Project is complete to the reasonable satisfaction of the Division. Project Costs means the incurred costs of the Recipient which are eligible for funding under this Agreement, pursuant to applicable statutes, policy, regulations, or guidelines.
Project Funding Amount means the maximum amount payable under this Agreement, as set forth on the Cover Page.
Project Funds means all moneys disburse d to the Recipient by the State Water Board for eligible Project Costs pursuant to this Agreement. Project Manager means the person des ignated by the State Water Board to manage performance of this Agreement. The Project Manager is set forth on the Cover Page.
Records Retention End Date means the last date that the Recipient is obligated to maintain records related to this Agreement and is set forth on the Cover Page of this Agreement.
Regional Water Quality Control Board or Regional Water Board means the appropriate Regional Water Quality Control Board.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
Reimbursement Period means the period during which Project Funds may be disbursed.
Reimbursement Request means the Recipients request for Project Funds from the State Water Board as set forth in Exhibit B.
State means State of California.
State Water Board means the Stat e Water Resources Control Board. Work Completion means the Recipients submittal of all work set forth under Exhibit A for review and approval by the Division.
Work Completion Date means the date set forth on the Cover Page of this Agreement and is the last date on which Project Costs may be incurred under this Agreement.
Year means calendar year unless otherwise expressly indicated.
2. ACCESS, INSPECTION, AND PUBLIC RECORDS. The Recipient must ensure that the State Water Board, the State Auditor, 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 or useful life of the Project, whichever is longer. The Recipient acknowledges that, except for a subset of information regarding archaeological records and personally identifiable information, the Project records and locations may be 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.
3. ACCOUNTING AND AUDITING STANDARDS; FINANCIAL MANAGEMENT SYSTEMS. 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:
(a) Establish an official file for the Project which adequately documents all significant actions relative to the Project;
(b) 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;
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
(c) 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;
(d) Establish an accounting system which will accurately depict final total costs of the Project if authorized under this Agreement;
(e) 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 (f) If the Recipient uses its own employees, equipment, or resources 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.
4. 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 and approved as required.
5. ASSIGNABILITY. This Agreement is not assignable by the Recipient, either in whole or in part, without the consent of the State Water Board. Amendment of the Agreement may be required.
6. 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.
7. BONDING. Where construction 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.
8. COMPETITIVE BIDDING. Recipient must adhere to any applicable State law or local ordinance for competitive bidding and applicable labor laws. If Recipient is a private entity, any construction contracts related in any way to the Project must be let by competitive bid procedures which assure award of such contracts to the lowest responsive and responsible bidders. Recipient must not award a construction contract until a summary of bids and identification of the selected lowest responsible bidder is submitted to and approved in writing by the Division.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
Recipient must provide a full explanation if Recipient is proposing to award a construction contract to anyone other than the lowest responsible bidder.
9. 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 and with provisions of the adopted environmental mitigation plan, if any, for the useful life of the Project.
10. COMPUTER SOFTWARE. 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.
11. CONFLICT OF INTEREST. The Recipient certifies that it, 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 Project. 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.
Public entities are required to have adopted conflict of interest codes and may be required to provide documentation of those codes to the Division.
12. DATA MANAGEMENT. The Recipient will undertake appropriate data management activities so that Project data can be incorporated into statewide data systems.
13. DEBARRED, DISQUALIFIED, OR EXCLUDED CONTRACTORS. 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 Boards 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 Boards List of Disqualified Businesses and Persons is located at
http://www.waterboards.ca.gov/water_issues/programs/enforcement/fwa/dbp.sht ml
14. DRUG-FREE WORKPLACE. The Recipient certifies that it will provide a drugfree 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 EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
substance is prohibited in the Recipients 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 Recipients 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 Recipients drug-free workplace policy statement and agrees to abide by the terms of the statement as a condition of employment on the Project.
15. ENVIRONMENTAL CLEARANCE. No work that is subject to California Environmental Quality Act (CEQA) or the 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 Recipients 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. 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.
16. FINAL REIMBURSEMENT REQUEST. The Recipient agrees to ensure that its final Reimbursement Request is received by the Division no later than the Final Reimbursement Request Date, unless prior approval has been granted by the Division. If the final Reimbursement Request is not received timely, the undisbursed balance of this Agreement may be deobligated.
17. FRAUD AND MISUSE OF PUBLIC FUNDS. All requests for disbursement must be accurate and signed by the Recipient or its 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 Recipient must not submit any EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
invoice 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 Recipient is seeking reimbursement shall not be reimbursed from any other source. Double or multiple billing for time, services, or any other 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 immediate repayment of all funds disbursed hereunder. Additionally, the Deputy Director of the Division may request an audit and refer the matter to the Attorney Generals Office or the appropriate district attorneys office for criminal prosecution or the imposition of civil liability.
18. FUNDING CONTINGENCY. The State Water Boards disbursement of funds hereunder is contingent on the Recipients compliance with the terms and conditions of this Agreement. The State Water Board's obligation to disburse 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 funds, the State Water Board shall not be obligated to make any disbursements to the Recipient under this Agreement. If this Agreements 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 State Water Board has the option to either cancel this Agreement with no liability accruing to the State Water Board, or offer an amendment to the Recipient to reflect the reduced amount. This provision shall be construed as a condition precedent to the obligation of the State Water Board to make any disbursements under this Agreement. Nothing in this Agreement shall be construed to provide the Recipient with a right of priority for disbursement over any other entity. If any disbursements due the Recipient under this Agreement are deferred because sufficient funds are unavailable, it is the intention of the State Water Board that such disbursement will be made to the Recipient when sufficient funds do become available, but this intention is not binding.
19. GOVERNING LAW. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California.
20. RECIPIENTS SHARE. The Recipient agrees that it will provide for the payment of its full share, if any share is required, of Project Costs and that all costs connected with the Project will be timely paid by the Recipient.
21. 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 EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
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 for the Bonds, if any (collectively, "Indemnified Persons"), against any loss or liability arising out of any claim or action brought against any Indemnified Persons from and against any and all losses, claims, damages, liabilities, or expenses, of every conceivable kind, character, and nature whatsoever arising out of, resulting from, or in any way connected with (1) the 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 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 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 Parties 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 Parties 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.
22. 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.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
23. INSPECTION. Throughout the useful life of the Project, the State Water Board shall have the right to inspect the Project area to ascertain compliance with this Agreement.
24. INTEGRATION. This Agreement constitutes the complete and final agreement between the parties. No oral or written understanding or agreement not incorporated in this Agreement shall be binding on either party.
25. LIENS. The Recipient must not make any pledge of or place any lien on the Project or Project assets except upon consent of the Division.
26. NO DISCRIMINATION. 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 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. 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.
The Recipient must comply with the federal American with Disabilities Act of 1990 and implementing regulations as required by Government Code section 11135(b).
The Recipients obligations under this section shall survive the term of this Agreement. During the performance of this Agreement, 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. 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. 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. 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. The Recipient must include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
27. NO THIRD-PARTY RIGHTS. This Agreement creates no rights in and grants no remedies to any third party as a beneficiary of this Agreement.
28. 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.
29. NON-WAIVER. Nothing in this Agreement shall affect or impair the Recipients 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.
30. OTHER FUNDING SOURCES; INCOME RESTRICTIONS. If funding for Project Costs is made available to the Recipient from sources other than this Agreement, the Recipient must notify the Division. The Recipient may retain such funding up to an amount which equals the Recipient's contribution to Project costs. To the extent allowed by requirements of other funding sources, excess funding must be remitted to the State Water Board. The Recipient agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Recipient as related to this Agreement must be paid by the Recipient to the 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.
31. PERMITS AND AUTHORIZATIONS. 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 construction or implementation begins.
Any contractors, outside associates, or consultants required by the Recipient in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during negotiations for this Agreement, or as are specifically authorized by the State Water Boards Project Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the State Water Boards Project Manager.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
32. 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 applicable 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 DIRs Public Works Manual at:
http://www.dir.ca.gov/dlse/PWManualCombined.pdf.
33. PRIOR COSTS. No costs incurred prior to the Eligible Work Start Date are eligible for reimbursement.
34. 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. 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.
35. RECORDS, INSPECTION, AUDITS, AND INTERVIEWS; RECORDS RETENTION.
The Recipient must maintain separate books, records and other material relative to the Project and retain such books, records, subcontracts, and other material until at least the Records Retention End Date set forth on the Cover Page of this Agreement. 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 Department of Finance, the California State Auditor, the Bureau of State Audits, or any authorized representatives of the aforementioned, including federal funding agencies and their auditors, if any. 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.
36. RELATED LITIGATION. Under no circumstances may the Recipient use funds from any reimbursement under this Agreement to pay costs associated with any litigation the Recipient pursues against the State Water Board or any Regional Water Board.
Regardless of the outcome of any such litigation, and notwithstanding any conflicting language in this Agreement, the Recipient agrees to complete the Project funded by this Agreement or to repay all of the disbursed funds plus interest.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
37. REMEDIES. The State Water Board may enforce its rights under this Agreement by any judicial proceeding, whether at law or in equity. 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 dispute of the Recipient is limited to the rights and remedies provided to the Recipient under this Agreement and is subject to the procedures provided to the Recipient under this Agreement.
38. REPORTS - AS NEEDED. The Recipient must provide expeditiously any reports, data, and information reasonably required by the Division, including but not limited to material necessary or appropriate for evaluation of the funding program or to fulfill any reporting requirements of the State or federal government.
39. 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.
40. 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.
41. STATE WATER BOARD ACTION; COSTS AND ATTORNEY FEES. 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.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
42. 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.
43. TERMINATION, IMMEDIATE REPAYMENT, AND INTEREST: This Agreement may be terminated by written notice at any time, at the option of the State Water Board, if:
a. the Recipient has received funds as a result of a material misrepresentation in the funding application or other submitted document; or b. upon violation by the Recipient of any material provision of this Agreement after such violation has been called to the attention of the Recipient and after failure of the Recipient to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the State Water Board.
In the event of such termination, the Recipient agrees, upon demand, to immediately repay to the State Water Board an amount equal to the amount of Project Funds disbursed to the Recipient prior to such termination. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Recipient to the date of full repayment by the Recipient.
44. TIMING. Time is of the essence. The Recipient must expeditiously proceed with and complete the Project. Failure to proceed according to the timelines set forth in this Agreement may require the Recipient to repay to the State Water Board all disbursed Project Funds.
45. TRAVEL AND PER DIEM. No work or travel outside the State of California is permitted under this Agreement unless the Division provides prior written authorization. No work or travel outside the United States of America is authorized.
Failure to comply with this restriction may constitute an Event of Default and result in termination of this Agreement. Any reimbursement for necessary travel and per diem shall be set pursuant to and at rates not to exceed those set by the California Department of Human Resources at
http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. as of the date costs are incurred by the Recipient.
46. UNDISBURSED FUNDS. The Recipient is not entitled to interest earned on undisbursed funds.
47. UNENFORCEABLE PROVISION; SEVERABILITY. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
agree that all other provisions of this Agreement have force and effect and shall not be affected thereby.
48. 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.
49. 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.
50. 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.
51. WATER CONSERVATION AND EFFICIENCY PROGRAMS: The Recipient acknowledges that it has appropriate water conservation and efficiency programs in place, and that this provision constitutes a condition of this Agreement. A web link with examples of water conservation and efficiency programs is available at:
http://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/cons ervation.shtml.
52. WATER DIVERSION AND USE: To the extent applicable, the Recipient has complied with, and shall continue to comply with, the requirements of Water Code, division 2, part 5.1, section 5100 et seq. for filing statements of water diversion and use.
53. WITHHOLDING OF DISBURSEMENTS AND REIMBURSEMENTS.
Notwithstanding any other provision of this Agreement, the State Water Board may withhold all or any portion of the Project Funds upon the occurrence of any of the following events:
a) Failure of the Recipient to maintain reasonable progress on the Project as determined by the Division;
b) Commencement of litigation or a judicial or administrative proceeding related to the Project, or Recipient that the State Water Board determines may impair the timely satisfaction of Recipients obligations under this Agreement; c) Any investigation by State, local, or federal investigators or auditors, or a grand jury, relating to the Recipients financial management, accounting procedures, or internal fiscal controls;
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit C
d) A material adverse change in the condition of the Recipient, or the Project, that the Division reasonably determines would materially impair the Recipients ability to satisfy its obligations under this Agreement, or any other event that the Division reasonably determines would materially impair the Recipients ability to satisfy its obligations under this Agreement; e) The Recipients material violation of, or threat to materially violate, any provision of this Agreement;
f) Suspicion of fraud, forgery, embezzlement, theft, or any other misuse of public funds by the Recipient or its employees, or by its contractors or agents directly or indirectly regarding the Project;
g) An event requiring notice under this Agreement; or
h) An Event of Default or an event that the Division determines may become an Event of Default.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit D
EXHIBIT D SPECIAL CONDITIONS
D.1 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, 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.
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 changes in the financial condition of the Recipient.
The Recipient legally possesses property access rights to any real or personal property necessary for the purposes of this Agreement for which the Recipient does not legally possess all real or personal property rights. 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 Recipients 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 Recipients 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 grant 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 grant funding is authorized.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit D
D.2 NOTICE
The Recipient shall promptly notify the State Water Board of events or proposed changes that could affect the scope, budget, or work performed under this Agreement.
The Recipient agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the State Water Board, and the State Water Board has given written approval for such change.
The Recipient shall notify the State Water Board at least ten (10) working days prior to any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by the State Water Boards representatives. The Recipient shall promptly notify the State Water Board in writing of completion of work on the Project.
D.3 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 Generals Office or the applicable District Attorneys 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.4 CONTRACTORS AND CONSULTANTS
Any contractors, outside associates, or consultants required by the Recipient in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during negotiations for this Agreement, or as are specifically authorized by the State Water Boards Project Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the State Water Boards Project Manager.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit D
D.5 CONDITIONS PRECEDENT TO REIMBURSEMENT
The State Water Boards obligation to make a reimbursement of the proceeds of this Agreement to the Recipient is subject to and conditioned upon the State Water Board's receipt of each of the following:
1. Copy of executed agreement(s) for response work acceptable to the State Water Board; (Subcontractor(s) must meet all licensing and certification requirements for the work being performed, including, but not limited to, having current and active license(s) issued by the California State Contractors License Board.)
2. Copies of permits from regulatory agencies necessary to conduct response actions;
3. Copies of invoices as identified in Exhibit B;
4. Such other documents, certificates, instruments, opinion, or other writings as the State Water Board may reasonably request;
5. The Recipient has provided proof of payment of the Ability to Pay Obligation, if any, in accordance with D.7; and
6. A complete, adequately supported, properly documented and accurately addressed invoice package.
D.6 DISENCUMBRANCE AND TERMINATION
1. In addition to the relevant provisions of Exhibit C, the State Water Board, at its discretion, may disencumber Project Funds or terminate this Agreement if:
(a) An invoice package seeking reimbursement under this Agreement, or provide proof of payment of the Ability to Pay Obligation, if any, in accordance with D.7, is not received within six (6) months of the effective date of this Agreement; (b) The Recipient does not perform response actions, seek reimbursement under this Agreement, or provide proof of payment of the Ability to Pay Obligation, if any, in accordance with D.7, with due diligence; or
(c) The Recipient is not in compliance with any applicable requirements contained in chapter 6.75 of the Health and Safety Code.
2. The State Water Boards authority to te rminate this Agreement under any of the Agreements termination provisions is not subject to the Dispute provisions in this Agreement.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit D
D.7 SCAP ABILITY TO PAY
To receive a Site Cleanup Subaccount grant, Responsible Parties must lack sufficient financial resources to pay for the required response actions. The State Water Board has determined that the Responsible Parties have Zero Ability to Pay for the costs of the Project, based on the proposed scope of work and budget provided for the period from the Eligible Work Start Date to the Work Completion Date and all available financial information for the Responsible Parties.
D.8 DISPUTES
The parties shall deal in good faith and attempt to resolve potential disputes informally.
If the dispute persists, the Recipient shall submit to the Deputy Director of the Division of Financial Assistance a written demand for a final decision. The decision of the Deputy Director, or his or her authorized representative, shall be reduced to writing and a copy thereof furnished to the Recipient and to the State Water Boards Executive Director. The decision of the Deputy Director shall be final and conclusive unless, within thirty (30) calendar days of the date of the Division decision, the State Water Boards Executive Director receives a written appeal. The Recipients written appeal shall be fully supported by any factual information the Recipient desires to be considered in the decision. The Executive Directors decision shall be final and conclusive, unless determined by a court of competent jurisdiction to have been fraudulent, capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. Pending final decision of a dispute hereunder, the Recipient shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. 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.
D.9 STATE CROSS-CUTTERS
Recipient represents that, as applicable, it complies and covenants to maintain compliance with the following for the term of the Agreement:
The California Environmental Quality Act (CEQA), as set forth in Public Resources Code section 21000 et seq. and in the CEQA Guidelines at title 14, division 6, chapter 3, section 15000 et seq.
If applicable, 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.
If applicable, Delta Plan Consistency Findings requirements, including the requirements of Water Code section 85225 and California Code of Regulations, title 23, section 5002.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit D
If applicable, Charter City Project Labor Requirements, including the requirements of Labor Code section 1782 and Public Contract Code section 2503.
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, Health and Safety Code sections 25187, 25187.1, 25296.10, or 101480, Health and Safety Code sections 25355.5 or 25358.3 as those sections read before January 1, 2024, Health and Safety Code sections 78870 or 79055 as those sections read effective January 1, 2024, and any other directive or order issued pursuant to regulatory authority over the Project.
D.10 COMPETITIVE BIDDING AND BONDING WAIVER
The State Water Board may waive any competitive bidding or bonding requirement in this Agreement that is not otherwise required by any applicable State law or local ordinance for competitive bidding or bonding or applicable labor laws.
D.11 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 Russias 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.
The Recipient represents that the Recipient is not a target of economic sanctions imposed in response to Russias 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 Russias 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- content/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-issues/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 EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 City of Victorville
Agreement No.: D2410048
Project No. S0048
Exhibit D
economic sanctions, including, but not limited to, those reporting requirements set forth in California Executive Order N-6-22 for all Recipients 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.
For 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 Russias actions in Ukraine, including but not limited to:
1. Desisting from making any new investments or engaging in financial transactions with Russian institutions or companies that are headquartered or have their principal place of business in Russia;
2. Not transferring technology to Russia or companies that are headquartered or have their principal place of business in Russia; and
3. Direct support to the government and people of Ukraine.
EXHIBIT A, SCOPE OF WORK/FEE SCHEDULE, PROJECT ESC26-005 Ninyo & Moore | Project Name | Proposal No. | Date CA14
Schedule of Fees
Hourly Charges for Personnel
Professional Staff
Principal Engineer/Geologist/Environmental Scientist/Certified Industrial Hygienist .............................................. $ 210 Senior Engineer/Geologist/Environmental Scientist ................................................................................................ $ 200 Senior Project Engineer/Geologist/Environmental Scientist .................................................................................... $ 195 Project Engineer/Geologist/Environmental Scientist ............................................................................................... $ 185 Senior Staff Engineer/Geologist/Environmental Scientist ....................................................................................... $ 170 Staff Engineer/Geologist/Environmental Scientist ................................................................................................... $ 155 GIS Analyst ............................................................................................................................................................... $ 130 Technical Illustrator/CAD Operator .......................................................................................................................... $ 110 Field Staff
Certified Asbestos/Lead Technician ........................................................................................................................ $ 195 Field Operations Manager ........................................................................................................................................ $ 130 Nondestructive Examination Technician (UT, MT, LP) ........................................................................................... $ 125 Supervisory Technician ............................................................................................................................................ $ 120 Special Inspector (Concrete, Masonry, Structural Steel, Welding, and Fireproofing) ............................................. $ 115 Senior Technician ..................................................................................................................................................... $ 110 Technician ................................................................................................................................................................ $ 110 Administrative Staff
Information Specialist ............................................................................................................................................... $ 90 Geotechnical/Environmental/Laboratory Assistant .................................................................................................. $ 95 Data Processor ......................................................................................................................................................... $ 75 Other Charges
Concrete Coring Equipment (includes technician) .............................................................................................. $ 190/hr Anchor Load Test Equipment (includes technician) ............................................................................................ $ 190/hr GPR Equipment ................................................................................................................................................... $ 180/hr Inclinometer .......................................................................................................................................................... $ 100/hr Hand Auger Equipment ....................................................................................................................................... $ 80/hr Rebar Locator (Pachometer) ............................................................................................................................... $ 25/hr Vapor Emission Kit ............................................................................................................................................... $ 65/kit Nuclear Density Gauge ........................................................................................................................................ $ 15/hr X-Ray Fluorescence ............................................................................................................................................ $ 70/hr PID/FID................................................................................................................................................................. $ 25/hr Air Sampling Pump .............................................................................................................................................. $ 10/hr Field Vehicle ......................................................................................................................................................... $ 15/hr Expert Witness Testimony ................................................................................................................................... $ 450/hr Direct Expenses ..................................................................................................................................... Cost plus 15 % Special equipment charges will be provided upon request.
Notes
Technicians and special inspectors, are charged at a 4-hour minimum, and 8-hour minimum for hours exceeding 4 hours. Overtime rates at 1.5 times the regular rates will be charged for work performed in excess of 8 hours in one day Monday through Friday and all day on Saturday. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day, all day Sunday and on holidays.
Our rates will be adjusted in conjunction with the increase in the Prevailing Wage Determination during the life of the project, as applicable.
The terms and conditions are included in Ninyo & Moore’s Work Authorization and Agreement form.
Ninyo & Moore | 2024 Laboratory Testing
Schedule of Fees for Laboratory Testing
SOILS CONCRETE
Atterberg Limits, D 4318, CT 204 ............................................................. $ 170 Compression Tests, 6x12 Cylinder, C 39 ................................................... $ 35 California Bearing Ratio (CBR), D 1883 ................................................... $ 550 Concrete Mix Design Review, Job Spec ..................................................... $ 300 Chloride and Sulfate Content, CT 417 & CT 422 .................................... $ 175 Concrete Mix Design, per Trial Batch, 6 cylinder, ACI ............................... $ 850 Consolidation, D 2435, CT 219 ................................................................. $ 300 Concrete Cores, Compression (excludes sampling), C 42 ........................ $ 120 Consolidation, Hydro-Collapse only, D 2435 ........................................... $ 150 Drying Shrinkage, C 157 .............................................................................. $ 400 Consolidation – Time Rate, D 2435, CT 219 ........................................... $ 200 Flexural Test, C 78 ....................................................................................... $ 85 Direct Shear – Remolded, D 3080 ............................................................ $ 350 Flexural Test, C 293 ..................................................................................... $ 85 Direct Shear – Undisturbed, D 3080 ......................................................... $ 300 Flexural Test, CT 523 ................................................................................... $ 95 Durability Index, CT 229 ............................................................................ $ 175 Gunite/Shotcrete, Panels, 3 cut cores per panel and test, ACI ................ $ 275 Expansion Index, D 4829, IBC 18-3 ......................................................... $ 190 Lightweight Concrete Fill, Compression, C 495 ......................................... $ 80 Expansion Potential (Method A), D 4546 ................................................. $ 170 Petrographic Analysis, C 856 ....................................................................... $ 2,000 Geofabric Tensile and Elongation Test, D 4632 ...................................... $ 200 Restrained Expansion of Shrinkage Compensation ................................... $ 450 Hydraulic Conductivity, D 5084 ................................................................. $ 350 Splitting Tensile Strength, C 496 ................................................................. $ 100 Hydrometer Analysis, D 6913, CT 203 ..................................................... $ 220 3x6 Grout, (CLSM), C 39 ............................................................................. $ 55 Moisture, Ash, & Organic Matter of Peat/Organic Soils .......................... $ 120 2x2x2 Non-Shrink Grout, C 109 ................................................................. $ 55 Moisture Only, D 2216, CT 226 ................................................................ $ 35 Moisture and Density, D 2937 ................................................................... $ 45 ASPHALT Permeability, CH, D 2434, CT 220 ........................................................... $ 300 Air Voids, T 269 ............................................................................................ $ 85 pH and Resistivity, CT 643 ........................................................................ $ 175 Asphalt Mix Design, Caltrans (incl. Aggregate Quality) ............................. $ 4,500 Proctor Density D1557, D 698, CT 216, AASHTO T-180 ....................... $ 220 Asphalt Mix Design Review, Job Spec ........................................................ $ 180 Proctor Density with Rock Correction D 1557.......................................... $ 340 Dust Proportioning, CT LP-4 ........................................................................ $ 85 R-value, D 2844, CT 301 ........................................................................... $ 375 Extraction, % Asphalt, including Gradation, D 2172, CT 382 .................... $ 250 Sand Equivalent, D 2419, CT 217 ............................................................ $ 125 Extraction, % Asphalt without Gradation, D 2172, CT 382 ........................ $ 150 Sieve Analysis, D 6913, CT 202 ............................................................... $ 145 Film Stripping, CT 302 .................................................................................. $ 120 Sieve Analysis, 200 Wash, D 1140, CT 202 ............................................ $ 100 Hveem Stability and Unit Weight D 1560, T 246, CT 366 .......................... $ 225 Specific Gravity, D 854 .............................................................................. $ 125 Marshall Stability, Flow and Unit Weight, T 245 ......................................... $ 240 Thermal Resistivity (ASTM 5334, IEEE 442) ........................................... $ 925 Maximum Theoretical Unit Weight, D 2041, CT 309 .................................. $ 150 Triaxial Shear, C.D, D 4767, T 297 ........................................................... $ 550 Moisture Content, CT 370 ............................................................................ $ 95 Triaxial Shear, C.U., w/pore pressure, D 4767, T 2297 per pt ................ $ 450 Moisture Susceptibility and Tensile Stress Ratio, T 238, CT 371 ............. $ 1,000 Triaxial Shear, C.U., w/o pore pressure, D 4767, T 2297 per pt ....................... $ 35 0 Slurry Wet Track Abrasion, D 3910 ............................................................. $ 150 Triaxial Shear, U.U., D 2850 ..................................................................... $ 250 Superpave, Asphalt Mix Verifi cation (incl. Aggregate Quality) .................. $ 4,900 Unconfined Compression, D 2166, T 208 ................................................ $ 180 Superpave, Gyratory Unit Wt., T 312 .......................................................... $ 100 Superpave, Hamburg Wheel, 20,000 passes, T 324 ................................. $ 1,000 MASONRY Unit Weight sample or core, D 2726, CT 308 ............................................. $ 100 Brick Absorption, 24-hour submersion, 5-hr boiling, 7-day, C 67 ........... $ 70 Voids in Mineral Aggregate, (VMA) CT LP-2 .............................................. $ 90 Brick Compression Test, C 67 .................................................................. $ 55 Voids filled with Asphalt, (VFA) CT LP-3 ..................................................... $ 90 Brick Efflorescence, C 67 .......................................................................... $ 55 Wax Density, D 1188 ................................................................................... $ 140 Brick Modulus of Rupture, C 67 ................................................................ $ 50 Brick Moisture as received, C 67 .............................................................. $ 45 AGGREGATES Brick Saturation Coefficient, C 67 ............................................................. $ 60 Clay Lumps and Friable Particles, C 142 .................................................... $ 180 Concrete Block Compression Test, 8x8x16, C 140 ................................. $ 70 Cleanness Value, CT 227 ............................................................................ $ 180 Concrete Block Conformance Package, C 90 ......................................... $ 500 Crushed Particles, CT 205 ........................................................................... $ 175 Concrete Block Linear Shrinkage, C 426 ................................................. $ 200 Durability, Coarse or Fine, CT 229 .............................................................. $ 205 Concrete Block Unit Weight and Absorption, C 140 ................................ $ 70 Fine Aggregate Angularity, ASTM C 1252, T 304, CT 234 ....................... $ 180 Cores, Compression or Shear Bond, CA Code ....................................... $ 70 Flat and Elongated Particle, D 4791 ............................................................ $ 220 Masonry Grout, 3x3x6 prism compression, C 39 .................................... $ 45 Lightweight Particles, C 123 ......................................................................... $ 180 Masonry Mortar, 2x2 cube compression, C 109 ...................................... $ 35 Los Angeles Abrasion, C 131 or C 535 ....................................................... $ 200 Masonry Prism, half size, compression, C 1019 ...................................... $ 120 Material Finer than No. 200 Sieve by Washing, C 117 .............................. $ 90 Masonry Prism, Full size, compression, C 1019 ...................................... $ 200 Organic Impurities, C 40 ............................................................................... $ 90 Potential Alkali Reactivity, Mortar Bar Method, Coarse, C 1260 ............... $ 1,250 REINFORCING AND STRUCTURAL STEEL Potential Alkali Reactivity, Mortar Bar Method, Fine, C 1260 .................... $ 950 Chemical Analysis, A 36, A 615 ................................................................ $ 135 Potential Reactivity of Aggregate (Chemical Method), C 289 ................... $ 475 Fireproofing Density Test, UBC 7-6 .......................................................... $ 90 Sand Equivalent, T 176, CT 217 ................................................................. $ 125 Hardness Test, Rockwell, A 370 ............................................................... $ 80 Sieve Analysis, Coarse Aggregate, T 27, C 136 ........................................ $ 120 High Strength Bolt, Nut & Washer Conformance, Sieve Analysis, Fine Aggregate (including wash), T 27, C 136 ................. $ 145 per assembly, A 325 ............................................................................. $ 150 Sodium Sulfate Soundness, C 88 ................................................................ $ 450 Mechanically Spliced Reinforcing Tensile Test, ACI ............................... $ 175 Specific Gravity and Absorption, Coarse, C 127, CT 206 .......................... $ 115 Pre-Stress Strand (7 wire), A 416 ............................................................. $ 170 Specific Gravity and Absorption, Fine, C 128, CT 207 ............................... $ 175 Reinforcing Tensile or Bend up to No. 11, A 615 & A 706 ..................... $ 75 Structural Steel Tensile Test: Up to 200,000 lbs., A 370 ........................ $ 90 ROOFING Welded Reinforcing Tensile Test: Up to No. 11 bars, ACI ...................... $ 80 Roofing Tile Absorption, (set of 5), C 67 ..................................................... $ 250 Roofing Tile Strength Test, (set of 5), C 67 ................................................. $ 250
Special preparation of standard test specimens will be charged at the technician’s hourly rate.
Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures.