(a) The State Water Board’s disbursement of funds hereunder is contingent on the Recipient’s compliance with the terms and conditions of this Agreement. (b) The State Water Board's obligation to disburse Project Funds is contingent upon the availability of sufficient funds to permit the disbursements provided for herein. If sufficient funds are not available for any reason, including but not limited to failure of the federal or State government to appropriate funds necessary for disbursement of Project Funds, the State Water Board shall not be obligated to make any disbursements to the Recipient under this Agreement. This provision shall be 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.
(c) Construction costs and disbursements are not available until after the Division has approved the final budget form submitted by the Recipient for the corresponding costs. (d) No costs incurred prior to the Eligible Work Start Date are eligible for reimbursement. (e) Construction costs incurred prior to the Eligible Construction Start Date are not eligible for reimbursement.
(f) 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. (g) The Recipient agrees to ensure that its final reimbursement request is received by the Division no later than the Final Reimbursement Request Date. If the final reimbursement request is not received timely, the undisbursed balance of this Agreement will be deobligated. (h) The Recipient is not entitled to interest earned on undisbursed funds.
B.1.6 Reimbursement Procedure.
Except as may be otherwise provided in this Agreement, disbursement of Project Funds will be made as follows:
(a) Upon execution and delivery of this Agreement by both parties, the Recipient may request immediate reimbursement of any eligible incurred costs through submission to the State Water Board of the Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed. To be eligible for reimbursement, Project Costs, including any planning and design allowance costs, must have been incurred in compliance with all applicable requirements, including the state and federal cross-cutting requirements listed in Exhibit C. (b) The Recipient must submit a reimbursement request for costs incurred prior to the date this Agreement is executed by the State Water Board no later than ninety (90) days after this Agreement is executed by the State Water Board. Late reimbursement requests may not be honored.
(c) The Recipient may request reimbursement of eligible construction and equipment costs consistent with budget amounts approved by the Division in the Final Budget Approval. (d) Additional Project Funds will be promptly disbursed to the Recipient upon receipt of reimbursement request Form 260 and Form 261, or any amendment thereto, duly completed and 154 of 263
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executed by the Recipient for incurred costs consistent with this Agreement, along with receipt of progress reports due under Exhibit A.
(e) The Recipient must not request reimbursement for any Project Cost until such cost has been incurred and is currently due and payable by the Recipient, although the actual payment of such cost by the Recipient is not required as a condition of reimbursement request. Supporting documentation (e.g., receipts) must be submitted with each reimbursement request. The amount requested for administration costs must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Disbursement of Project Funds will be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed reimbursement request. Upon request by the Division, supporting documents for professional and administrative services must include the employees’ names, classifications, labor rates, hours worked, and descriptions of the tasks performed.
Reimbursement requests submitted without supporting documents may be wholly or partially withheld at the discretion of the Division.
(f) The Recipient must spend Project Funds within 30 days of receipt. If the Recipient earns interest earned on Project Funds, it must report that interest immediately to the State Water Board. The State Water Board may deduct earned interest from future disbursements. (g) The Recipient shall not request a reimbursement unless that Project Cost is allowable, reasonable, and allocable.
(h) Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, policies, or regulations.
(i) No work or travel outside the State of California is permitted under this Agreement unless the Division provides prior written authorization. Failure to comply with this restriction may result in termination this Agreement, pursuant to Exhibit C. Any reimbursement for necessary travel and per diem shall be at rates not to exceed those set by the California Department of Human Resources at http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. as of the date costs are incurred by the Recipient.
B.1.7 Withholding of Disbursements.
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) The Recipient’s failure to maintain reasonable progress on the Project as determined by the Division;
(b) Placement on the ballot or passage of an initiative or referendum to repeal or reduce the Recipient’s taxes, assessments, fees, or charges levied for operation of the System or payment of debt service on System Obligations;
(c) Commencement of litigation or a judicial or administrative proceeding related to the Project, System, or Revenues that the State Water Board determines may impair the timely satisfaction of Recipient’s obligations under this Agreement; (d) Any investigation by the State Water Board, District Attorney, California State Auditor, Bureau of State Audits, the USEPA Office of Inspector General, the Internal Revenue Service, Securities and Exchange Commission, a grand jury, or any other state or federal agency, relating to the Recipient’s financial management, accounting procedures, or internal fiscal controls;
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satisfy its obligations under this Agreement, or any other event that the Division reasonably determines would materially impair the Recipient’s ability to satisfy its obligations under this Agreement;
(f) The Recipient’s material violation of, or threat to materially violate, any term of this Agreement;
(g) 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 regarding the Project or the System;
(h) An event requiring Notice as set forth in Exhibit C; (i) An Event of Default or an event that the Division determines may become an Event of Default.
B.1.8 Fraud and Misuse of Public Funds; Enforcement.
All requests for reimbursement submitted must be accurate and signed by the Recipient’s Authorized Representative under penalty of perjury. All costs submitted pursuant to this Agreement must only be for the work or tasks set forth in this Agreement. The Recipient must not submit any invoice containing costs that are ineligible or have been reimbursed from other funding sources unless required and specifically noted as such (i.e., match costs). Any eligible 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 eligible cost is improper and will not be compensated. Any suspected occurrences of fraud, forgery, embezzlement, theft, or any other misuse of public funds may result in suspension of disbursements and, notwithstanding any other section in this Agreement, the termination of this Agreement requiring the repayment of all Project Funds disbursed hereunder. Additionally, the Deputy Director of the Division may request an audit; refer the matter for appropriate administrative action, including but not limited to the recovery of financial assistance provided and the imposition of civil penalties; and/or refer the matter to the Attorney General’s Office or the appropriate district attorney’s office for criminal prosecution or the imposition of civil liability. 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.) B.2 RECIPIENT’S PAYMENT OBLIGATION, PLEDGE, AND RESERVE B.2.1 Project Costs.
The Recipient must pay any and all costs connected with the Project including, without limitation, any and all Project Costs and Additional Payments. If the Project Funds are not sufficient to pay the Project Costs in full, the Recipient must nonetheless complete the Project and pay that portion of the Project Costs in excess of available Project Funds, and shall not be entitled to any reimbursement therefor from the State Water Board.
B.2.2 Estimated Principal Payment Due.
The estimated amount of principal that will be due to the State Water Board from the Recipient under this Agreement is Written Dollar Amount dollars and no cents ($Dollar Amount).
B.2.3 Interest Rate and In
-Lieu of Interest Charges.
(a) The Recipient agrees to make all Payments according to the schedule in Exhibit E, and as otherwise set forth herein, at an interest rate of Written Interest Rate % (X%) per annum. (b) Interest will accrue beginning with each disbursement. 156 of 263
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(c) In lieu of, and not to exceed, interest otherwise due under this Agreement, the Recipient agrees to pay the following charge(s), as further set forth in Exhibit E:
· an Administrative Service Charge
· a Drinking Water Small Community Emergency Grant Fund Charge B.2.4 Reserved.
B.2.5 Obligation Absolute.
The obligation of the Recipient to make the Payments and other payments required to be made by it under this Agreement, from the Net Revenues and/or other amounts legally available to the Recipient therefor, is absolute and unconditional, and until such time as the Payments and Additional Payments have been paid in full, the Recipient must not discontinue or suspend any Payments or other payments required to be made by it hereunder when due, whether or not the Project, or any related part thereof is operating or operable or has been completed, or its use is suspended, interfered with, reduced or curtailed or terminated in whole or in part, and such Payments and other payments shall not be subject to reduction whether by offset or otherwise and shall not be conditional upon the performance or nonperformance by any party of any agreement for any cause whatsoever.
B.2.6 Payment Timing.
(a) The Recipient must pay interest annually, by [DFA to fill in date] of each year, until one year after Completion of Construction. Beginning no later than one year after Completion of Construction, the Recipient must make annual Payment of the principal of the Project Funds, together with all interest accruing thereon by [DFA to fill in date]. The Recipient must make Payments fully amortizing the total principal of the Project by the Final Payment Date. Payments are based on a standard fully amortized assistance amount with equal annual payments.
(b) The remaining balance is the previous balance, plus the disbursements, plus the accrued interest on both, plus any Charge In Lieu of Interest, less the Payment. Payment calculations will be made beginning one (1) year after Completion of Construction. Exhibit E is a payment schedule based on the provisions of this Exhibit and an estimated disbursement schedule. Actual payments will be based on actual disbursements.
(c) Upon Completion of Construction and submission of necessary reports by the Recipient, the Division will prepare an appropriate payment schedule and supply the same to the Recipient. The Division may amend this schedule as necessary to accurately reflect amounts due under this Agreement. The Division will prepare any necessary amendments to the payment schedule and send them to the Recipient. The Recipient must make each Payment on or before the due date therefor. A ten (10) day grace period will be allowed, after which time a penalty in the amount of costs incurred by the State Water Board will be assessed for late payment. These costs may include, but are not limited to, lost interest earnings, staff time, bond debt service default penalties, if any, and other related costs. For purposes of penalty assessment, payment will be deemed to have been made if payment is deposited in the U.S. Mail within the grace period with postage prepaid and properly addressed. Any penalties assessed will not be added to the assistance amount balance, but will be treated as a separate account and obligation of the Recipient. The interest penalty will be assessed from the payment due date. (d) The Recipient is obligated to make all payments required by this Agreement to the State Water Board, notwithstanding any individual default by its constituents or others in the payment to the Recipient of fees, charges, taxes, assessments, tolls or other charges ("Charges") levied or imposed by the Recipient. The Recipient must provide for the punctual payment to the State Water Board of all amounts which become due under this Agreement and which are received from constituents or others in the payment to the Recipient. In the event of failure, neglect or refusal of any officer of the Recipient to levy or cause to be 157 of 263
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levied any Charge to provide payment by the Recipient under this Agreement, to enforce or to collect such Charge, or to pay over to the State Water Board any money collected on account of such Charge necessary to satisfy any amount due under this Agreement, the State Water Board may take such action in a court of competent jurisdiction as it deems necessary to compel the performance of all duties relating to the imposition or levying and collection of any of such Charges and the payment of the money collected therefrom to the State Water Board. Action taken pursuant hereto shall not deprive the State Water Board of, or limit the application of, any other remedy provided by law or by this Agreement. (e) Each Payment must be paid in lawful money of the United States of America by check or other acceptable form of payment set forth at www.waterboards.ca.gov/make_a_payment.
The Recipient must pay Payments and Additional Payments from Net Revenues and/or other amounts legally available to the Recipient therefor.
B.2.7 Pledged Revenues.
B.2.7.1 Establishment of Enterprise Fund and Reserve Fund.
In order to carry out its System Obligations, the Recipient covenants that it shall establish and maintain or shall have established and maintained the Enterprise Fund. All Revenues received shall be deposited when and as received in trust in the Enterprise Fund. As required in this Exhibit, the Recipient must establish and maintain a Reserve Fund.
B.2.7.2 Pledge of Net Revenues, Enterprise Fund, and Reserve Fund.
The Obligation hereunder shall be secured by a lien on and pledge of the Enterprise Fund, Net Revenues, and any Reserve Fund on parity with the Parity Obligations. The Recipient hereby pledges and grants such lien on and pledge of the Enterprise Fund, Net Revenues, and any Reserve Fund to secure the Obligation, including payment of Payments and Additional Payments hereunder. The Enterprise Fund, Net Revenues in the Enterprise Fund, and any Reserve Fund shall be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the Recipient.
B.2.7.3 Application and Purpose of the Enterprise Fund.
Subject to the provisions of any outstanding System Obligation, money on deposit in the Enterprise Fund shall be applied and used first, to pay Operations and Maintenance Costs, and thereafter, all amounts due and payable with respect to the System Obligations in order of priority. After making all payments hereinabove required to be made in each Fiscal Year, the Recipient may expend in such Fiscal Year any remaining money in the Enterprise Fund for any lawful purpose of the Recipient.
B.2.8 No Prepayment.
Pursuant to State Water Board’s Debt Management Policy, adopted on October 3, 2017, the Recipient may not prepay any portion of the principal and interest due under this Agreement without the written consent of the Deputy Director of the Division.
B.2.9 Reserve Fund.
Prior to Completion of Construction, the Recipient must establish a restricted Reserve Fund, held in its Enterprise Fund, equal to one year’s Debt Service on this Obligation. The Recipient must maintain the Reserve Fund throughout the term of this Agreement. The Reserve Fund is subject to lien and pledged as security for this Obligation, and its use is restricted to payment of this Obligation during the term of this Agreement.
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B.3 RATES, FEES AND CHARGES.
(a) The Recipient must, to the extent permitted by law, fix, prescribe and collect rates, fees and charges for the System during each Fiscal Year which are reasonable, fair, and nondiscriminatory and which will be sufficient to generate Revenues in the amounts necessary to cover Operations and Maintenance Costs, and must ensure that Net Revenues are equal to the sum of:
i. at least [120% or the coverage ratio required by the Recipient’s existing System Obligations, whichever is greater] of the Maximum Annual Debt Service with respect to all outstanding System Obligations senior to and on parity with the Obligation; and ii. at least [100% or the coverage ratio required by the Recipient’s existing System Obligations, whichever is greater] of the Maximum Annual Debt Service with respect to all outstanding System Obligations subordinate to the Obligation, so long as System Obligations other than this Obligation are outstanding.
Upon defeasance of all System Obligations other than this Obligation, this ratio must be at least 120%, except where System Obligations are defeased pursuant to refunding obligations. (b) The Recipient may make adjustments from time to time in such fees and charges and may make such classification thereof as it deems necessary, but shall not reduce the rates, fees and charges then in effect unless the Net Revenues from such reduced rates, fees, and charges will at all times be sufficient to meet the requirements of this section.
(c) Upon consideration of a voter initiative to reduce Revenues, the Recipient must make a finding regarding the effect of such a reduction on the Recipient's ability to satisfy the rate covenant set forth in this Section. The Recipient must make its findings available to the public. The Recipient’s Authorized Representative must request, if necessary, the authorization of the Recipient’s decision-maker or decision-making body to file litigation to challenge any such initiative that it finds will render it unable to satisfy the rate covenant set forth in this Agreement and its obligation to operate and maintain the Project for its Useful Life. The Recipient must diligently pursue and bear any and all costs related to such challenge. The Recipient must notify and regularly update the State Water Board regarding the status of any such challenge.
B.4 ADDITIONAL DEBT.
(a) The Recipient’s future debt that is secured by Revenues pledged herein may not be senior to this Obligation, except where the new senior obligation refunds or refinances a senior obligation with the same lien position as the existing senior obligation, the new senior obligation has the same or earlier repayment term as the refunded senior debt, the new senior debt service is the same or lower than the existing debt service, and the new senior debt will not diminish the Recipient’s ability to satisfy its SRF obligation(s).
(b) The Recipient may issue additional parity or subordinate debt only if all of the following conditions are met:
i. No Event of Default (or no event with respect to which notice has been given and which, once all notice of grace periods have passed, would constitute an Event of Default) has occurred and is continuing;
ii. Net Revenues in the most recent Fiscal Year, excluding transfers from a rate stabilization fund, if any, meet the ratio for rate covenants set forth in this Exhibit with respect to any outstanding and proposed additional obligations; and
iii. The Recipient is in compliance with any reserve fund requirement of this Obligation. 159 of 263
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B.5 NO LIENS.
The Recipient must not make any pledge of or place any lien on the Project, System, or Revenues except as otherwise provided or permitted by this Agreement.
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EXHIBIT C – GENERAL & PROGRAMMATIC TERMS & CONDITIONS
C.1 REPRESENTATIONS & WARRANTIES.
The Recipient represents, warrants, and commits to the following as of the Eligible Work Start Date and continuing thereafter for the term of this Agreement.
C.1.1 Application and General Recipient Commitments.
The Recipient has not made any untrue statement of a material fact in its application for this financial assistance, or omitted to state in its application a material fact that makes the statements in its application not misleading.
The Recipient agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents.
The Recipient agrees to fulfill all assurances, declarations, representations, and commitments in its application, accompanying documents, and communications filed in support of its request for funding under this Agreement.
C.1.2 Authorization and Validity.
The execution and delivery of this Agreement, including all incorporated documents, has been duly authorized by the Recipient. Upon execution by both parties, this Agreement constitutes a valid and binding obligation of the Recipient, enforceable in accordance with its terms, except as such enforcement may be limited by law.
C.1.3 No Violations.
The execution, delivery, and performance by Recipient of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the date 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.
C.1.4 No Litigation.
There are, as of the date of execution of this Agreement by the Recipient, no pending or, to Recipient’s knowledge, threatened actions, claims, investigations, suits, or proceedings before any governmental authority, court, or administrative agency which materially affect the financial condition or operations of the Recipient, the System, the Revenues, and/or the Project.
There are no proceedings, actions, or offers by a public entity to acquire by purchase or the power of eminent domain the System or any of the real or personal property related to or necessary for the Project.
C.1.5 Property Rights and Water Rights.
The Recipient owns or has sufficient property rights in the Project property for the longer of the Useful Life or the term of this Agreement, either in fee simple or for a term of years that is not subject to third-party revocation during the Useful Life of the Project. 161 of 263
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The Recipient possesses all water rights necessary for this Project.
C.1.6 Solvency and Insurance.
None of the transactions contemplated by this Agreement will be or have been made with an actual intent to hinder, delay, or defraud any present or future creditors of Recipient. The Recipient is solvent and will not be rendered insolvent by the transactions contemplated by this Agreement. The Recipient is able to pay its debts as they become due. The Recipient maintains sufficient insurance coverage considering the scope of this Agreement, including, for example but not necessarily limited to, general liability, automobile liability, workers compensation and employer liability, professional liability.
C.1.7 Legal Status and Eligibility.
The Recipient is duly organized and existing and in good standing under the laws of the State of California. Recipient must at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority. The Recipient acknowledges that changes to its legal or financial status may affect its eligibility for funding under this Agreement and commits to maintaining its eligibility. Within the preceding ten years, the Recipient has not failed to demonstrate compliance with state or federal audit disallowances.
C.1.8 Financial Statements and Continuing Disclosure.
The financial statements of Recipient previously delivered to the State Water Board as of the date(s) set forth in such financial statements: (a) are materially complete and 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, there has been no material adverse change in the financial condition of the Recipient, nor have any assets or properties reflected on such financial statements been sold, transferred, assigned, mortgaged, pledged or encumbered, except as previously disclosed in writing by Recipient and approved in writing by the State Water Board.
The Recipient is current in its continuing disclosure obligations associated with its material debt, if any.
C.1.9 System Obligations
The Recipient has no System Obligations other than those defined in this Agreement.
C.1.10 No Other Material Obligations.
The Recipient has no Material Obligations other than System Obligations.
C.1.11 Compliance with State Water Board Funding Agreements.
The Recipient represents that it is in compliance with all State Water Board funding agreements to which it is a party.
C.2 DEFAULTS AND REMEDIES
In addition to any other remedy set forth in this Agreement, the following remedies are available under this Agreement.
C.2.1 Return of Funds; Acceleration; and Additional Payments. 162 of 263
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Notwithstanding any other provision of this Agreement, if the Division determines that an Event of Default has occurred, the Recipient may be required, upon demand, immediately to do each of the following:
i. return to the State Water Board any grant or principal forgiveness amounts received pursuant to this Agreement;
ii. accelerate the payment of any principal owed under this Agreement, all of which shall be immediately due and payable;
iii. pay interest at the highest legal rate on all of the foregoing; and iv. pay any Additional Payments.
C.2.2 Reserved.
C.2.3 Administrative remedies.
Whenever the State Water Board determines that the Recipient, the Recipient’s contractor, consultant, employee, agent, assignee, or grantee has violated any requirement or term of the Agreement, the State Water Board may impose civil penalties in accordance with Water Code, section 13497. The State Water Board may impose civil liability administratively against the Recipient or the Recipient’s consultant or contractor or other agent furnishing any information related to funds disbursed or costs claimed for reimbursement if the Recipient or the Recipient’s consultant or contractor or other agent fails to personally attest that the information is true, accurate, and complete the best of one’s knowledge. (Wat.
Code, § 13498.) The State Water Board may impose civil liability administratively against any person who makes a misrepresentation in any submittal to the State Water Board, including, but not limited to, an application, report, certification, record, invoice, form, or other document that is submitted to the State Water Board relating to a financial assistance agreement. (Wat. Code, § 13499.) C.2.4 Judicial remedies.
Whenever the State Water Board determines that an Event of Default shall have occurred, the State Water Board may enforce its rights under this Agreement by any judicial proceeding, whether at law or in equity. Without limiting the generality of the foregoing, the State Water Board may:
i. by suit in equity, require the Recipient to account for amounts relating to this Agreement as if the Recipient were the trustee of an express trust; ii. by mandamus or other proceeding, compel the performance by the Recipient and any of its officers, agents, and employees of any duty under the law or of any obligation or covenant under this Agreement, including but not limited to the imposition and collection of rates for the services of the System sufficient to meet all requirements of this Agreement; and
iii. take whatever action at law or in equity as may appear necessary or desirable to the State Water Board to collect the Payments then due or thereafter to become due, or to enforce performance of any obligation or covenant of the Recipient under this Agreement.
Upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the State Water Board under this Agreement, the State Water Board may make application for the appointment of a receiver or custodian of the Revenues, pending such proceeding, with such power as the court making such appointment may confer.
C.2.5 Termination.
Upon an Event of Default, the State Water Board may terminate this Agreement. Interest shall accrue on all amounts due at the highest legal rate of interest from the date that the State Water Board delivers notice of termination to the Recipient.
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C.2.6 Damages for Breach of Tax-Exempt Status.
In the event that any breach of any of the provisions of this Agreement by the Recipient results in the loss of tax-exempt status for any bonds of the State or any subdivision or agency thereof, or if such breach results in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government by reason of any arbitrage profits, the Recipient must immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach.
C.2.7 Damages for Breach of Federal Conditions.
In the event that any breach of any of the provisions of this Agreement by the Recipient results in the failure of Project Funds to be used pursuant to the provisions of this Agreement, or if such breach results in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government, the Recipient must immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach.
C.2.8 Remedies and Limitations.
None of the remedies available to the State Water Board shall be exclusive of any other remedy, and each such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. The State Water Board may exercise any remedy, now or hereafter existing, without exhausting and without regard to any other remedy.
Any claim of the Recipient is limited to the rights and remedies provided to the Recipient under this Agreement and is subject to the claims procedures provided to the Recipient under this Agreement.
C.2.9 Non-Waiver.
Nothing in this Agreement shall affect or impair the Recipient’s Obligation to pay Payments as provided herein or shall affect or impair the right of the State Water Board to bring suit to enforce such payment.
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.
C.2.10 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.
C.3 STANDARD CONDITIONS
C.3.1 Access, Inspection, and Public Records.
The Recipient must ensure that the State Water Board, the Governor of the State, the USEPA, the USEPA’s Office of Inspector General, any member of Congress, or any authorized representative of the foregoing, will have safe and suitable access to the Project site at all reasonable times during Project construction and thereafter for the term of the Agreement. The Recipient acknowledges that, except for a subset of information regarding archaeological records, the Project records and locations are public records, including but not limited to all of the submissions accompanying the application, all of the 164 of 263
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documents incorporated into this Agreement by reference, and all reports, reimbursement requests, and supporting documentation submitted hereunder.
C.3.2 Accounting and Auditing Standards; Financial Management Systems; Records Retention. (a) The Recipient must maintain project accounts according to GAAP as issued by the Governmental Accounting Standards Board (GASB) or its successor. The Recipient must maintain GAAP-compliant project accounts, including GAAP requirements relating to the reporting of infrastructure assets. (b) The Recipient must comply with federal standards for financial management systems. The Recipient agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit preparation of reports required by the federal government and tracking of Project funds to a level of expenditure adequate to establish that such funds have not been used in violation of federal or state law or the terms of this Agreement. To the extent applicable, the Recipient must comply with the provisions and requirements of the federal Single Audit Act (SAA) of 1984, 2 CFR part 200, subpart F, and 2 CFR section 200.302, and updates or revisions thereto, including but not limited to:
· Maintain an annual (Fiscal Year) accounting system and identify all expenditures of federal financial assistance;
· Conduct a SAA audit using an independent auditor in those Fiscal Years when expenditures of total federal financial assistance equal or exceed $750,000, and submit the SAA audit to the Federal Audit Clearinghouse within the earlier of thirty (30) calendar days after receipt of the auditor’s report(s) or nine (9) months of the end of the audit period; · Notify the Division when a SAA audit has been conducted and submitted to the Federal Audit Clearinghouse;
· Notify and provide the Division with a copy of the SAA audit within thirty (30) days of completion of the audit;
· Inform the Division of findings and recommendations pertaining to federal financial assistance provided through the State Water Board contained in SAA audits conducted by the Recipient; · Initiate corrective actions for audit reports with findings and recommendations that impact federal financial assistance provided through the State Water Board and notify the Division when corrective actions are complete.
(c) Without limitation of the requirement to maintain Project accounts in accordance with GAAP, the Recipient must:
i. Establish an official file for the Project which adequately documents all significant actions relative to the Project;
ii. Establish separate accounts which will adequately and accurately depict all amounts received and expended on the Project, including all assistance funds received under this Agreement;
iii. Establish separate accounts which will adequately depict all income received which is attributable to the Project, specifically including any income attributable to assistance funds disbursed under this Agreement; iv. Establish an accounting system which will accurately depict final total costs of the Project, including both direct and indirect Costs;
v. 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 vi. If Force Account is used by the Recipient for any phase of the Project, other than for planning, design, and construction engineering and administration provided for by allowance, accounts will be established which reasonably 165 of 263
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document all employee hours charged to the Project and the associated tasks performed by each employee.
(d) The Recipient must maintain separate books, records and other material relative to the Project.
The Recipient must also retain such books, records, and other material for itself and for each contractor or subcontractor who performed or performs work on this project for a minimum of thirty-six (36) years after Completion of Construction. The Recipient must require that such books, records, and other material are subject at all reasonable times (at a minimum during normal business hours) to inspection, copying, and audit by the State Water Board, the California State Auditor, the Bureau of State Audits, the USEPA, the USEPA’s Office of Inspector General, the Internal Revenue Service, the Governor, or any authorized representatives of the aforementioned. The Recipient must allow and must require its contractors to allow interviews during normal business hours of any employees who might reasonably have information related to such records. The Recipient agrees to include a similar duty regarding audit, interviews, and records retention in any contract or subcontract related to the performance of this Agreement. The provisions of this section survive the term of this Agreement.
C.3.3 Amendment.
No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by both the Recipient and the Deputy Director or designee.
Requests for amendments must be in writing and directed to the contact listed in Section 4 and to the Division’s Chief of Loans and Grants Administration Section.
C.3.4 Assignability.
This Agreement is not assignable by the Recipient, either in whole or in part, without the consent of the State Water Board in the form of a formal written amendment to this Agreement.
C.3.5 Audit.
(a) 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.
(b) Audit disallowances must be returned to the State Water Board.
C.3.6 Bonding.
Where contractors are used, the Recipient must not authorize construction to begin until each contractor has furnished a performance bond in favor of the Recipient in the following amounts: faithful performance (100%) of contract value; labor and materials (100%) of contract value. This requirement shall not apply to any contract for less than $25,000.00.
C.3.7 Competitive Bidding
Recipient must adhere to any applicable state law or local ordinance for competitive bidding and applicable labor laws.
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The Recipient must, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, to the extent applicable, the Recipient must:
(a) Comply with the provisions of the adopted environmental mitigation plan, if any, for the term of this Agreement;
(b) Comply with the Policy; and
(c) Comply with and require compliance with the state and federal requirements set forth elsewhere in this Agreement.
C.3.9 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.
C.3.10 Conflict of Interest.
The Recipient certifies that its owners, officers, directors, agents, representatives, and employees are in compliance with applicable state and federal conflict of interest laws.
C.3.11 Continuous Use of Project; No Lease, Sale, Transfer of Ownership, or Disposal of Project.
The Recipient agrees that, except as provided in this Agreement, it will not abandon, substantially discontinue use of, lease, sell, transfer ownership of, or dispose of all or a significant part or portion of the Project during the Useful Life of the Project without prior written approval of the Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all disbursed Project Funds or all or any portion of all remaining funds covered by this Agreement together with accrued interest and any penalty assessments that may be due.
C.3.12 Data Management.
The Recipient will undertake appropriate data management activities so that Project data can be incorporated into statewide data systems.
C.3.13 Disputes.
(a) The Recipient may appeal a staff decision within 30 days to the Deputy Director of the Division or designee, for a final Division decision. The Recipient may appeal a final Division decision to the State Water Board within 30 days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative to its final resolution, which will be provided to the State Water Board’s Executive Director and each State Water Board Member. Upon the motion of any State Water Board Member, the State Water Board will review and resolve the dispute in the manner determined by the State Water Board. Should the State Water Board determine not to review the final Division decision, this decision will represent a final agency action on the dispute. (b) This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the State Water Board, or any official or representative thereof, on any question of law.
(c) Recipient must continue with the responsibilities under this Agreement during any dispute. 167 of 263
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(d) This section relating to disputes does not establish an exclusive procedure for resolving claims within the meaning of Government Code sections 930 and 930.4.
C.3.14 Reserved.
C.3.15 Environmental Clearance.
(a) No work that is subject to CEQA or NEPA may proceed under this Agreement unless the State Water Board has provided environmental clearance. 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. (b) 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.
C.3.16 Governing Law.
This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California.
C.3.17 Income Restrictions.
The Recipient agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Recipient under 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.
C.3.18 Indemnification and State Reviews.
The parties agree that review or approval of Project plans and specifications by the State Water Board is for administrative purposes only, including conformity with application and eligibility criteria, and expressly not for the purposes of design defect review or construction feasibility, and does not relieve the Recipient of its responsibility to properly plan, design, construct, operate, and maintain the Project. To the extent permitted by law, the Recipient agrees to indemnify, defend, and hold harmless the State Water Board, the Bank, 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 System or the Project or the conditions, occupancy, use, possession, conduct, or management of, work done in or about, or the planning, design, acquisition, installation, or construction, of the System or the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the Toxic Substances Control Act, the Occupational Safety and Health Act, the Safe Drinking Water 168 of 263
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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 System or the Project; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Recipient for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement, except those arising from the gross negligence or willful misconduct of the Indemnified Persons. The Recipient must also provide for the defense and indemnification of the Indemnified Persons in any contractual provision extending indemnity to the Recipient in any contract let for the performance of any work under this Agreement, and must cause the Indemnified Persons to be included within the scope of any provision for the indemnification and defense of the Recipient in any contract or subcontract. To the fullest extent permitted by law, the Recipient agrees to pay and discharge any judgment or award entered or made against Indemnified Persons with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section survive the term of this Agreement.
C.3.19 Independent Actor.
The Recipient, and its agents and employees, if any, in the performance of this Agreement, shall act in an independent capacity and not as officers, employees, or agents of the State Water Board.
C.3.20 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.
C.3.21 Leveraging Covenants.
(a) Notwithstanding any other provision hereof, the Recipient covenants and agrees that it will comply with the Tax Covenants set forth in Exhibit F of this Agreement. (b) The Recipient covenants to furnish such financial, operating and other data pertaining to the Recipient as may be requested by the State Water Board to: (i) enable the State Water Board to cause the issuance of Bonds and provide for security therefor; or (ii) enable any underwriter of Bonds issued for the benefit of the State Water Board to comply with Rule 15c2-12(b)(5). (c) The Recipient further covenants to provide the State Water Board with copies of all continuing disclosure documents or reports that are disclosed pursuant to (i) the Recipient’s continuing disclosure undertaking or undertakings made in connection with any outstanding System Obligation, (ii) the terms of any outstanding System Obligation, or (iii) a voluntary disclosure of information related to an outstanding System Obligation. The Recipient must disclose such documents or reports to the State Water Board at the same time such documents or reports are submitted to any dissemination agent, trustee, nationally recognized municipal securities information repository, the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access (EMMA) website or other person or entity.
C.3.22 No Discrimination.
(a) The Recipient must comply with Government Code section 11135 and the implementing regulations (Cal. Code Regs, tit. 2, § 11140 et seq.), including, but not limited to, ensuring that no person is unlawfully denied full and equal access to the benefits of, or unlawfully subjected to discrimination in the operation of, the Project or System on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital 169 of 263
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status, or sexual orientation as such terms are defined under California law, for as long as the Recipient retains ownership or possession of the Project.
(b) If Project Funds are used to acquire or improve real property, the Recipient must include a covenant of nondiscrimination running with the land in the instrument effecting or recording the transfer of such real property.
(c) The Recipient must comply with the federal American with Disabilities Act of 1990 and implementing regulations as required by Government Code section 11135(b). (d) The Recipient’s obligations under this section shall survive the term of this Agreement. (e) During the performance of this Agreement, Recipient and its contractors and subcontractors must not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, sexual orientation, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, denial of family care leave, or genetic information, gender, gender identity, gender expression, or military and veteran status.
(f) The Recipient, its contractors, and subcontractors must ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. (g) The Recipient, its contractors, and subcontractors must comply with the provisions of the Fair Employment and Housing Act and the applicable regulations promulgated thereunder. (Gov. Code, §12990, subds. (a)-(f) et seq.;Cal. Code Regs., tit. 2, § 7285 et seq.) Such regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. (h) The Recipient, its contractors, and subcontractors must comply with all applicable federal civil rights regulations, including statutory and national policy requirements. (2 CFR § 200.300). This includes, to the greatest extent practicable and to the extent permitted by law, the requirement to respect and protect the freedom of persons and organizations to engage in political and religious speech. (Executive Order 13798).
(i) 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. (j) The Recipient must include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.
C.3.23 No Third Party Rights.
The parties to this Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation, or undertaking established herein.
C.3.24 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.
C.3.25 Notice.
Upon the occurrence of any of the following events, the Recipient must provide notice as set forth below. 170 of 263
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(a) Within 24 hours of the following, the Recipient must notify the Division by phone at (916) 327-9978 and by email to [PM email address and senior email address] and [email protected] of:
i. The seizure of, or levy on, any Revenues securing this Agreement; ii. Any discovery of any potential tribal cultural resource, archaeological or historical resource, or human remains in the Project area (also notify the Division’s Senior Cultural Resources Officer, [email protected] or (916) 323- 0626). Should a potential tribal cultural resource or archaeological or historical resource be discovered during construction or Project implementation, the Recipient must ensure that all work in the area of the find will cease until a qualified archaeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Division has determined what actions should be taken to protect and preserve the resource. The Recipient must implement appropriate actions as directed by the Division. If there are any applicable provisions of a mitigation, monitoring and reporting program adopted for the Project, the Recipient shall comply with such provisions. In the event of the discovery of human remains during construction of the Project, the Recipient shall cease construction and take other action required by any applicable laws, which may include but are not limited to Health and Safety Code, section 7050.5 and Public Resources Code, section 5097.98.
(b) Within five (5) business days, the Recipient must notify the Division by phone at (916) 327-9978; by email to [email protected] [PM email address and senior email address] and [email protected]; and by mail to the contact address set forth in Section 4 of this Agreement of the occurrence of any of the following events:
i. Bankruptcy, insolvency, receivership or similar event of the Recipient, or actions taken in anticipation of any of the foregoing;
ii. Change of ownership of the Project or the System or change of management or service contracts, if any, for operation of the System; iii. Loss, theft, damage, or impairment to Project, the Revenues or the System; iv. Failure to meet any debt service coverage test in Exhibit B of this Agreement; v. Draws on the Reserve Fund;
vi. Listed Events and Events of Default, except as otherwise set forth in this section; vii. Failure to observe or perform any covenant or comply with any condition in this Agreement;
viii. An offer from a public entity to purchase the Project or the System or any portion thereof, or any of the real or personal property related to or necessary for the Project;
ix. A proceeding or action by a public entity to acquire the Project or the System by power of eminent domain;
x. Incurrence of a System Obligation or other Material Obligation by the Recipient; or
xi. A default, event of acceleration, termination event, modification of terms, or other similar event under the terms of a System Obligation or other Material Obligation of the Recipient, any of which reflect financial difficulties. (c) Within ten (10) business days, the Recipient must notify the Division by phone at (916) 327-9978, by email to [PM email address and senior email address] and [email protected], and by mail to the contact address set forth in Section 4 of this Agreement of the following events:
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i. Material defaults on Material Obligations, other than this Obligation; ii. Unscheduled draws on material debt service reserves or credit enhancements, reflecting financial difficulties;
iii. Substitution of credit or liquidity providers, if any or their failure to perform; iv. Any litigation pending or threatened with respect to the Project or the Recipient’s technical, managerial or financial capacity to operate the System or the Recipient’s continued existence, or any judgment or court order relating to such litigation that has a significant effect on the Project or the System; v. Circulation of a petition to repeal, reduce, or otherwise challenge the Recipient’s rates for services of the System;
vi. Consideration of dissolution, or disincorporation, or any other event that could materially impair the Revenues;
vii. Adverse tax opinions, the issuance by the Internal Revenue Service or proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701- TEB) or other material notices of determinations with respect to the tax status of any tax-exempt bonds;
viii. Rating changes on outstanding System Obligations, if any; ix. Enforcement actions by or brought on behalf of the State Water Board or Regional Water Board; or
x. Any investigation by the District Attorney, California State Auditor, Bureau of State Audits, USEPA’s Office of Inspector General, the Internal Revenue Service, Securities and Exchange Commission, a grand jury, or any other state or federal agency, relating to the Recipient’s financial management, accounting procedures, or internal fiscal controls;
(d) The Recipient must notify the Division promptly by phone at (916) 327-9978, by email to [PM email address and senior email address] and
[email protected], and by mail to the contact address set forth in Section 4 of this Agreement of any of the following events:
i. The discovery of a false statement of fact or representation made in this Agreement or in the application to the Division for this financial assistance, or in any certification, report, or request for reimbursement made pursuant to this Agreement, by the Recipient, its employees, agents, or contractors; ii. Any substantial change in scope of the Project. The Recipient must undertake no substantial change in the scope of the Project until prompt written notice of the proposed change has been provided to the Division and the Division has given written approval for the change;
iii. Cessation of all major construction work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more; iv. Any circumstance, combination of circumstances, or condition, which is expected to or does delay Completion of Construction for a period of ninety (90) days or more;
v. Discovery of any unexpected endangered or threatened species, as defined in the federal Endangered Species Act. Should a federally protected species be unexpectedly encountered during construction of the Project, the Recipient agrees to promptly notify the Division. This notification is in addition to the Recipient’s obligations under the federal Endangered Species Act; vi. Any Project monitoring, demonstration, or other implementation activities required in Exhibit A or Exhibit D of this Agreement, if any; vii. Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by state and federal representatives with at least ten (10) working days’ notice to the Division;
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viii. Any allegation of research misconduct involving research activities that are supported in whole or in part with USEPA funds under this Project, as required by Exhibit C.4.3(xxvii);
ix. Any events requiring notice to the Division pursuant to the provisions of this Agreement;
x. Completion of Construction of the Project, and actual Project Completion; xi. The award of the prime construction contract for the Project; xii. Initiation of construction of the Project.
C.3.26 Operation and Maintenance; Insurance.
The Recipient agrees to sufficiently and properly staff, operate and maintain all portions of the System during the Useful Life of the Project in accordance with all applicable state and federal laws, rules, and regulations.
The Recipient will procure and maintain or cause to be maintained insurance on the System with responsible insurers, or as part of a reasonable system of self-insurance, in such amounts and against such risks (including damage to or destruction of the System) as are usually covered in connection with systems similar to the System. Such insurance may be maintained by a self-insurance plan so long as such plan provides for (i) the establishment by the Recipient of a separate segregated self-insurance fund in an amount determined (initially and on at least an annual basis) by an independent insurance consultant experienced in the field of risk management employing accepted actuarial techniques and (ii) the establishment and maintenance of a claims processing and risk management program.
In the event of any damage to or destruction of the System caused by the perils covered by such insurance, the net proceeds thereof shall be applied to the reconstruction, repair or replacement of the damaged or destroyed portion of the System. The Recipient must begin such reconstruction, repair or replacement as expeditiously as possible, and must pay out of such net proceeds all costs and expenses in connection with such reconstruction, repair or replacement so that the same must be completed and the System must be free and clear of all claims and liens. If such net proceeds are insufficient to reconstruct, repair, or restore the System to the extent necessary to enable the Recipient to pay all remaining unpaid principal portions of the Payments, if any, in accordance with the terms of this Agreement, the Recipient must provide additional funds to restore or replace the damaged portions of the System.
Recipient agrees that for any policy of insurance concerning or covering the construction of the Project, it will cause, and will require its contractors and subcontractors to cause, a certificate of insurance to be issued showing the State Water Board, its officers, agents, employees, and servants as additional insured; and must provide the Division with a copy of all such certificates prior to the commencement of construction of the Project.
C.3.27 Permits, Subcontracting, and Remedies.
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 begins.
The Recipient must not contract or allow subcontracting with excluded parties. The Recipient must not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen, directed, funded, or administered by the State Water Board program for which this funding is authorized. For any work related to this Agreement, the Recipient must not contract with any individual or organization on the State Water Board’s List of Disqualified Businesses 173 of 263
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and Persons that is identified as debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen, directed, funded, or administered by the State Water Board program for which funding under this Agreement is authorized. The State Water Board’s List of Disqualified Businesses and Persons is located at
http://www.waterboards.ca.gov/water_issues/programs/enforcement/fwa/dbp.shtml C.3.28 Professionals.
The Recipient agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. All technical reports required pursuant to this Agreement that involve planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, architectural, or geologic sciences, shall be prepared by or under the direction of persons registered to practice in California pursuant to Business and Professions Code, sections 5536.1, 6735, 7835, and 7835.1. To demonstrate compliance with California Code of Regulations, title 16, sections 415 and 3065, all technical reports must contain a statement of the qualifications of the responsible registered professional(s). As required by these laws, completed technical reports must bear the signature(s) and seal(s) of the registered professional(s) in a manner such that all work can be clearly attributed to the professional responsible for the work.
C.3.29 Prevailing Wages.
The Recipient agrees to be bound by all applicable provisions of State Labor Code regarding prevailing wages. The Recipient must monitor all agreements subject to reimbursement from this Agreement to ensure that the prevailing wage provisions of the State Labor Code are being met.
In addition, the Recipient agrees to comply with the Davis-Bacon provisions incorporated by reference in Section 3 of this Agreement.
C.3.30 Public Funding.
This Project is publicly funded. Any service provider or contractor with which the Recipient contracts must not have any role or relationship with the Recipient, that, in effect, substantially limits the Recipient's ability to exercise its rights, including cancellation rights, under the contract, based on all the facts and circumstances.
C.3.31 Recipient’s 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. The State Water Board will not mediate disputes between the Recipient and any other entity concerning responsibility for performance of work.
C.3.32 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 Quality Control Board. Regardless of the outcome of any such litigation, and notwithstanding any conflicting language in this Agreement, the Recipient agrees to repay all of the disbursed funds plus interest in the event that Recipient does not complete the project.
C.3.33 Rights in Data.
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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.
C.3.34 State Water Board Action; Costs and Attorney Fees.
Any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the State Water Board as a result of breach of this Agreement by the Recipient, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the State Water Board shall not preclude the State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own costs and attorney fees.
C.3.35 Timeliness.
Time is of the essence in this Agreement.
C.3.36 Unenforceable Provision.
In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby.
C.3.37 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.
C.3.38 Waiver and Rights of the State Water Board.
Any waiver of rights by the State Water Board with respect to a default or other matter arising under this Agreement at any time shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State Water Board provided for in this Agreement are in addition to any other rights and remedies provided by law.
C.4 MISCELLANEOUS STATE AND FEDERAL REQUIREMENTS
C.4.1 Reserved.
C.4.2 State Cross-Cutters.
Recipient represents that, as applicable, it complies and covenants to maintain compliance with the following with respect to all Project Costs for the term of this Agreement:
i. The California Environmental Quality Act (CEQA), as set forth in Public Resources Code 21000 et seq. and in the CEQA Guidelines at Title 14, Division 6, Chapter 3, Section 15000 et seq. 175 of 263
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ii. Water Conservation requirements, including regulations in Division 3 of Title 23 of the California Code of Regulations.
iii. Monthly Water Diversion Reporting requirements, including requirements set forth in Water Code section 5103.
iv. 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. v. Volumetric Pricing & Water Meters requirements, including the requirements of Water Code sections 526 and 527.
vi. Urban Water Management Plan requirements, including the Urban Water Management Planning Act (Water Code, § 10610 et seq.).
vii. Urban Water Demand Management requirements, including the requirements of Section 10608.56 of the Water Code.
viii. Delta Plan Consistency Findings requirements, including the requirements of Water Code section 85225 and California Code of Regulations, title 23, section 5002. ix. Agricultural Water Management Plan Consistency requirements, including the requirements of Water Code section 10852.
x. Charter City Project Labor Requirements, including the requirements of Labor Code section 1782 and Public Contract Code section 2503.
xi. 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.
xii. Regulations in Division 4 of Title 22 of the California Code of Regulations, including but not limited to California Waterworks Standards in Chapter 16, and Lead and Copper regulations in Chapter 17.5.
C.4.3 Federal Requirements and Cross-Cutters for SRF Funding.
The Recipient acknowledges, warrants compliance with, and covenants to continuing compliance with the following federal terms and conditions with respect to all Project Costs for the term of this Agreement and for the Useful Life of the Project:
i. Unless the Recipient has obtained a waiver from USEPA on file with the State Water Board or unless this Project is not a project for the construction, alteration, maintenance or repair of a public water system or treatment work, the Recipient shall not purchase “iron and steel products” produced outside of the United States on this Project. Unless the Recipient has obtained a waiver from USEPA on file with the State Water Board or unless this Project is not a project for the construction, alteration, maintenance or repair of a public water system or treatment work, the Recipient hereby certifies that all “iron and steel products” used in the Project were or will be produced in the United States. For purposes of this section, the term "iron and steel products" means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. 176 of 263
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“Steel” means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.
ii. The Recipient acknowledges that funds received under this Agreement are subject to the Build America Buy America (BABA) requirements of Public Law 117-58 (the Infrastructure Investment and Jobs Act, also known as the Bipartisan Infrastructure Law (BIL), signed into law on November 15, 2021), which are in addition to “iron and steel products” requirements described in section C.4.3 (i) above. Specifically, unless (1) the Recipient has requested and obtained a waiver from USEPA on file with the State Water Board pertaining to the Project or the Project is otherwise covered by a general applicability waiver, as confirmed in writing by the State Water Board; or (2) the State Water Board and, to the extent the Project is co-funded by any other agency using federal funds subject to BABA requirements, each such agency, has advised the Recipient in writing that the BABA requirements are not applicable to the Project, the Recipient shall ensure and certifies that, as these terms are defined within and made applicable by Public Law 117-58:
(a) all iron and steel used in the Project are produced in the United States; (b) the manufactured products used in the Project are produced in the United States; and (c) the construction materials used in the Project are produced in the United States.
The Recipient must comply and require its contractors and subcontractors to comply with all applicable BABA requirements and reporting and must inform the State Water Board immediately of any information regarding a violation of the foregoing. iii. The Recipient must include in full the Wage Rate Requirements (Davis-Bacon) language incorporated by reference in Section 3 of this Agreement in all construction contracts and subcontracts.
iv. The Recipient must comply with the signage requirements set forth in Exhibit A. v. The Recipient shall notify the State Water Board and the USEPA contact of public or media events publicizing the accomplishment of significant events related to this Project and provide the opportunity for attendance and participation by federal representatives with at least ten (10) working days’ notice.
vi. The Recipient shall comply with applicable USEPA general terms and conditions found at https://www.epa.gov/grants/epa-general-terms-and-conditions-effective-october-1-2022-or-later. vii. No Recipient may receive funding under this Agreement unless it has provided its Unique Entity Identifier, assigned by the System for Award Management, to the State Water Board. viii. The Recipient represents and warrants that it and its principals are not excluded or disqualified from participating in this transaction as such terms are defined in Parts 180 and 1532 of Title 2 of the Code of Federal Regulations (2 CFR). If the Recipient is excluded after execution of this Agreement, the Recipient shall notify the Division within ten (10) days and shall inform the Division of the Recipient’s exclusion in any request for amendment of this Agreement. The Recipient shall comply with Subpart C of Part 180 of 2 CFR, as supplemented by Subpart C of Part 1532 of 2 CFR. Such compliance is a condition precedent to the State Water Board’s performance of its obligations under this Agreement. When entering into a covered transaction as defined in Parts 180 and 1532 of 2 CFR, the Recipient shall require the other party to the covered transaction to comply with Subpart C of Part 180 of 2 CFR, as supplemented by Subpart C of Part 1532 of 2 CFR.
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ix. To the extent applicable, the Recipient shall disclose to the State Water Board any potential conflict of interest consistent with USEPA’s Final Financial Assistance Conflict of Interest Policy at https://www.epa.gov/grants/epas-final-financial-assistance-conflict-interest-policy. A conflict of interest may result in disallowance of costs.
x. USEPA and the State Water Board have the right to reproduce, publish, use and authorize others to reproduce, publish and use copyrighted works or other data developed under this assistance agreement.
xi. Where an invention is made with Project Funds, USEPA and the State Water Board retain the right to a worldwide, nonexclusive, nontransferable, irrevocable, paid-up license to practice the invention owned by the Recipient. The Recipient must utilize the Interagency Edison extramural invention reporting system at http://iEdison.gov and shall notify the Division when an invention report, patent report, or utilization report is filed.
xii. The Recipient agrees that any reports, documents, publications or other materials developed for public distribution supported by this Agreement shall contain the Disclosure statement set forth in Exhibit A.
xiii. The Recipient acknowledges that it is encouraged to follow guidelines established under Section 508 of the Rehabilitation Act, codified at 36 CFR Part 1194, with respect to enabling individuals with disabilities to participate in its programs supported by this Project. xiv. The Recipient, its employees, contractors and subcontractors and their employees warrants that it will not engage in severe forms of trafficking in persons, procure a commercial sex act during the term of this Agreement, or use forced labor in the performance of this Agreement. The Recipient must include this provision in its contracts and subcontracts under this Agreement. The Recipient must inform the State Water Board immediately of any information regarding a violation of the foregoing. The Recipient understands that failure to comply with this provision may subject the State Water Board to loss of federal funds. The Recipient agrees to compensate the State Water Board for any such funds lost due to its failure to comply with this condition, or the failure of its contractors or subcontractors to comply with this condition. The State Water Board may unilaterally terminate this Agreement if the Recipient that is a private entity is determined to have violated the foregoing.
xv. The Recipient certifies to the best of its knowledge and belief that:
a. No federal appropriated funds have been paid or will be paid, by or on behalf of the Recipient, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. b. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with this Agreement, the Recipient shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions, and notify the State Water Board.
The Recipient shall require this certification from all parties to any contract or agreement that the Recipient enters into and under which the Recipient incurs costs for which it seeks reimbursements under this Agreement.
xvi. The Recipient must comply with the following federal non-discrimination requirements:
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a. Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, and national origin, including limited English proficiency (LEP). b. Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against persons with disabilities.
c. The Age Discrimination Act of 1975, which prohibits age discrimination. d. Section 13 of the Federal Water Pollution Control Act Amendments of 1972, which prohibits discrimination on the basis of sex.
e. 40 CFR Part 7, as it relates to the foregoing.
xvii. Executive Order No. 11246. The Recipient shall include in its contracts and subcontracts related to the Project the following provisions:
"During the performance of this contract, the contractor agrees as follows:"(a) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
"(b) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin. "(c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
"(d) The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. "(e) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
"(f) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of Sept 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 179 of 263
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"(g) The contractor will include the provisions of Paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of Sept. 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, That in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States."
xviii. The Recipient agrees to comply with the requirements of USEPA’s Program for Utilization of Small, Minority and Women’s Business Enterprises.
xix. Procurement Prohibitions under Section 306 of the Clean Air Act and Section 508 of the Clean Water Act, including Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans; 42 USC § 7606; 33 USC § 1368. Except where the purpose of this Agreement is to remedy the cause of the violation, the Recipient may not procure goods, services, or materials from suppliers excluded under the federal System for Award Management: sam.gov xx. Uniform Relocation and Real Property Acquisition Policies Act, Pub. L. 91-646, as amended; 42 USC §§4601-4655. The Recipient must comply with the Act’s implementing regulations at 49 CFR 24.101 through 24.105.
xxi. The Recipient agrees that if its network or information system is connected to USEPA networks to transfer data using systems other than the Environmental Information Exchange Network or USEPA’s Central Data Exchange, it will ensure that any connections are secure. xxii. All geospatial data created pursuant to this Agreement that is submitted to the State Water Board for use by USEPA or that is submitted directly to USEPA must be consistent with Federal Geographic Data Committee endorsed standards. Information on these standards may be found at www.fgdc.gov.
xxiii. If the Recipient is a water system that serves 500 or fewer persons, the Recipient represents that it has considered publicly-owned wells as an alternative drinking water supply. xxiv. The Recipient represents that it is not a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and it is not a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months. xxv. The Recipient agrees to immediately notify the Project Manager in writing about any allegation of research misconduct involving research activities that are supported in whole or in part with USEPA funds under this Project, including fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results, or ordering, advising, or suggesting that subordinates engage in research misconduct. xxvi. The Recipient agrees to comply with, and require all contractors and subcontractors to comply with, USEPA’s Scientific Integrity Policy, available at https://www.epa.gov/osa/policy-epa- scientific-integrity, when conducting, supervising, and communicating science and when using or applying the results of science. For purposes of this condition scientific activities include, but are 180 of 263
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not limited to, computer modelling, economic analysis, field sampling, laboratory experimentation, demonstrating new technology, statistical analysis, and writing a review article on a scientific issue.
The Recipient shall not suppress, alter, or otherwise impede the timely release of scientific findings or conclusions; intimidate or coerce scientists to alter scientific data, findings, or professional opinions or exert non-scientific influence on scientific advisory boards; knowingly misrepresent, exaggerate, or downplay areas of scientific uncertainty; or otherwise violate the USEPA’s Scientific Integrity Policy. The Recipient must refrain from acts of research misconduct, including publication or reporting, as described in USEPA’s Policy and Procedures for Addressing Research Misconduct, Section 9.C, and must ensure scientific findings are generated and disseminated in a timely and transparent manner, including scientific research performed by contractors and subcontractors.
xxvii. The Recipient agrees to comply with the Animal Welfare Act of 1966 (7 USC 2131-2156).
Recipient also agrees to abide by the “U.S. Government Principles for the Utilization and Care of Vertebrate Animals used in Testing, Research, and Training,” available at http://grants.nih.gov/grants/olaw/references/phspol.htm#USGovPrinciples. xxviii. The Recipient certifies that no Project Funds will be used on:
a. Video surveillance or telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities), telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
b. Telecommunications or video surveillance services produced by such entities; c. Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country; or
d. Other telecommunications or video surveillance services or equipment in violation of 2 CFR 200.216.
xxix. The Recipient agrees to ensure that if the Project includes lead service line replacement, each lead service line replaced using Project Funds must be replaced in its entirety, unless the remaining portion of that service line has already been replaced or is concurrently being replaced with another funding source.
xxx. The Recipient agrees to comply with all federal environmental cross-cutters, including the following:
a. Archeological and Historic Preservation Act (16 U.S.C. § 469; 54 U.S.C. §§ 312501- 312508)
b. Clean Air Act Conformity (42 U.S.C. § 7401)
c. Coastal Barriers Resources Act (16 U.S.C. § 3501 et seq.) d. Coastal Zone Management Act (16 U.S.C. § 1451 et seq.) e. Endangered Species Act (16 U.S.C. § 1531 et seq.)
f. Farmland Protection Policy Act (7 U.S.C. § 4201 et seq.) g. Floodplain Management [Executive Order 11988 (1997), as amended by Executive Order No. 13690 (2015)]
h. Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801 et seq.)
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i. National Historic Preservation Act (54 U.S.C. §§ 300101 et seq.) j. Sole Source Aquifer, section 1424(e) of Safe Drinking Water Act, 42 U.S.C. 300h- 3(e)
k. Wetlands Protection – Executive Order No. 11990 (1977), as amended by Executive Order no. 12608 (1997)
l. Wild and Scenic Rivers Act (16 U.S.C. § 1271 et seq.) 182 of 263
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EXHIBIT D – SPECIAL CONDITIONS
[environmental]
FUNDS RELATED TO CONTAMINATION.
a. As a condition precedent to this Agreement, the Recipient shall (i) notify the Division of any demands, including but not limited to litigation and insurance claims, made by the Recipient against third parties for reimbursement of costs, monetary damages, or other relief, related to drinking water contamination, including but not limited to contamination by 1,2,3- trichloropropane (1,2,3-TCP), perfluoroalkyl and polyfluoroalkyl substances (PFAS), or other contaminants (Contamination-Related Demands); (ii) notify the Division of any payments or funds received by the Recipient, agreements, settlements, and court or administrative orders that have arisen out of or are related to drinking water contamination or Contamination- Related Demands (Contamination-Related Payments, Agreements, or Orders); and (iii) to the extent requested by the Division or the Division’s counsel, provide information and access to documentation of any Contamination-Related Demands and Contamination-Related Payments, Agreements, or Orders.
b. After execution of this Agreement, the Recipient shall promptly notify the Division of the new occurrence of any Contamination-Related Demands and Contamination-Related Payments, Agreements, or Orders. Upon request, the Recipient shall promptly provide information and access to documents to the extent requested by the Division or the Division’s counsel.
c. The Recipient shall not spend or allocate any funds received as a result of Contamination-Related Demands or Contamination-Related Payments, Agreements, or Orders (Recovered Funds) unless the Recipient has obtained written consent for the use of such Recovered Funds from the Division. At the discretion of the Division, the Project Funding Amount of this Agreement may be reduced, disbursements may be withheld, and the Agreement may be rescinded, to offset the amount of any Recovered Funds or any Contamination-Related Payments, Agreements, or Orders. Upon demand by the Division, the Recipient shall return Project Funds to offset any Recovered Funds or Contamination- Related Payments, Agreements, or Orders within thirty (30) days or within another time period approved by the Division. The Recipient shall ensure that no duplicative reimbursements of costs occur under this Agreement and any past or future Recovered Funds or Contamination-Related Payments, Agreements, or Orders. Noncompliance with this Funds Related to Contamination section shall be an Event of Default.
d. If the Recipient is not regulated by the California Public Utilities Commission (CPUC), the provisions of this paragraph (d) shall apply. If the Division provides written consent, the Recipient may place Recovered Funds into a restricted reserve account to be used for one of the following purposes but only if such purpose is approved by the Division: (1) as co-funding or match funding for the Project, (2) for a capital improvement project other than the Project that addresses the associated drinking water contamination, (3) for Operations and Maintenance Costs related to addressing the associated drinking water contamination, (4) for Operations and Maintenance Costs of the System in general, or (5) for other purposes approved by the Division. To the extent requested by the Division, the Recipient shall provide access to (i) documentation satisfactory to the Division showing the total amount of Recovered Funds deposited into a restricted reserve account prior to the start of construction of the Project and (ii) documentation thereafter of any Recovered Funds that Recipient receives and places into such an account.
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and shall provide to the Division copies of all notices, applications, and any other documents filed with the CPUC, and any documents issued by the CPUC, within 10 days of submittal or issuance as applicable, with respect to the receipt and use of Recovered Funds and with respect to any proposed transfer of any assets funded by Recovered Funds.
Executive Order N-6-22 — Russian Sanctions.
On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State Water Board determine Recipient is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this Agreement. The State Water Board shall provide Recipient advance written notice of such termination, allowing Recipient at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State Water Board.
The Recipient represents that the Recipient is not a target of economic sanctions imposed in response to Russia’s actions in Ukraine imposed by the United States government or the State of California. The Recipient is required to comply with the economic sanctions imposed in response to Russia’s actions in Ukraine, including with respect to, but not limited to, the federal executive orders identified in California Executive Order N-6-22, located at https://www.gov.ca.gov/wp-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 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 Russia’s 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. 184 of 263
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EXHIBIT E – PAYMENT SCHEDULE
See the attached preliminary Payment Schedule. The final Payment Schedule will be forwarded to the Recipient after all disbursements have been paid and construction of the Project has been completed. 185 of 263
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EXHIBIT F – TAX CERTIFICATE
F.1 Purpose.
The purpose of this Exhibit F is to establish the reasonable expectations of the Recipient regarding the Project and the Project Funds, and is intended to be and may be relied upon for purposes of Sections 103, 141 and 148 of the Code and as a certification described in Section 1.148-2(b)(2) of the Treasury Regulations. This Exhibit F sets forth certain facts, estimates and circumstances which form the basis for the Recipient’s expectation that neither the Project nor the Bond Funded Portion of the Project Funds is to be used in a manner that would cause the Obligation to be classified as “arbitrage bonds” under Section 148 of the Code or “private activity bonds” under Section 141 of the Code.
F.2 Tax Covenant.
The Recipient agrees that it will not take or authorize any action or permit any action within its reasonable control to be taken, or fail to take any action within its reasonable control, with respect to the Project which would result in the loss of the exclusion of interest on the Bonds from gross income for federal income tax purposes under Section 103 of the Code.
F.3 Governmental Unit.
The Recipient is a state or local governmental unit as defined in Section 1.103-1 of the Treasury Regulations or an instrumentality thereof (a "Governmental Unit") and is not the federal government or any agency or instrumentality thereof.
F.4 Financing of a Capital Project.
The Recipient will use the Project Funds to finance capital expenditures it has incurred or will incur for the construction, reconstruction, installation or acquisition of the Project in accordance with the terms of this Agreement. Such expenditures shall not have previously been financed with the proceeds of any other issue of indebtedness except for interim financing by the Recipient, the date of maturity, prepayment or redemption of which is within thirty (30) days of the date of disbursement of Project Funds under this Agreement. All Project Funds shall be allocated to expenditures by the Recipient within thirty (30) days of the date of disbursement, including (if at all) Project Funds allocated to repay interim financing of the Recipient. For purposes of this Section F.4, “interim financing” means notes, commercial paper, loans, lines of credit and other forms of short-term borrowing.
F.5 Ownership and Operation of Project.
The Recipient exclusively owns and, except as provided in Section F.12 hereof, operates the Project.
F.6 Temporary Period.
The Recipient reasonably expects that at least eighty-five percent (85%) of the Bond Funded Portion of the Project Funds will be allocated to expenditures for the Project within three (3) years of the earlier of the effective date of this Agreement or the date the Bonds are issued ("Applicable Date"). The Recipient has incurred, or reasonably expects that it will incur within six (6) months of the Applicable Date, a substantial binding obligation (i.e., not subject to contingencies within the control of the Recipient or a related party) to a third party to expend at least five percent (5%) of the Bond Funded Portion of the Project Funds on Project Costs. The completion of acquisition, construction, improvement and equipping 186 of 263
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of the Project and the allocation of the Bond Funded Portion of the Project Funds to Project Costs will proceed with due diligence.
F.7 Working Capital.
No operational expenditures of the Recipient or any related entity are being, have been or will be financed or refinanced with Project Funds.
F.8 Expenditure of Proceeds.
The Bond Funded Portion of the Project Funds shall be used exclusively for the following purposes: (i) Reimbursement Expenditures (as defined in Section F.20 below), (ii) Preliminary Expenditures (as defined in Section F.20 below) in an aggregate amount not exceeding twenty percent (20%) of the Bond Funded Portion of the Project Funds, (iii) capital expenditures relating to the Project originally paid by the Recipient on or after the date hereof, (iv) interest on the Obligation through the later of three (3) years after the Applicable Date or one (1) year after the Project is placed in service, and (v) initial operating expenses directly associated with the Project in the aggregate amount not more than five percent (5%) of the Bond Funded Portion of the Project Funds.
F.9 Private Use and Private Payments.
No portion of the Project Funds or the Project is being, has been or will be used in the aggregate for any activities that constitute a Private Use (as defined below). No portion of the principal of or interest with respect to the Payments will be secured by any interest in property (whether or not the Project) used for a Private Use or in payments in respect of property used for a Private Use, or will be derived from payments in respect of property used for a Private Use. "Private Use" means any activity that constitutes a trade or business that is carried on by persons or entities, other than a Governmental Unit. The leasing of the Project or the access by or the use of the Project by a person or entity other than a Governmental Unit on a basis other than as a member of the general public shall constitute a Private Use. Use by or on behalf of the State of California or any of its agencies, instrumentalities or subdivisions or by any local Governmental Unit and use as a member of the general public will be disregarded in determining whether a Private Use exists. Use under an arrangement that conveys priority rights or other preferential benefits is generally not use on the same basis as the general public. Arrangements providing for use that is available to the general public at no charge or on the basis of rates that are generally applicable and uniformly applied do not convey priority rights or other preferential benefits. For this purpose, rates may be treated as generally applicable and uniformly applied even if (i) different rates apply to different classes of users, such as volume purchasers, if the differences in rates are customary and reasonable; or (ii) a specially negotiated rate arrangement is entered into, but only if the user is prohibited by federal law from paying the generally applicable rates, and the rates established are as comparable as reasonably possible to the generally applicable rates. An arrangement that does not otherwise convey priority rights or other preferential benefits is not treated, nevertheless, as general public use if the term of the use under the arrangement, including all renewal options, is greater than 200 days. For this purpose, a right of first refusal to renew use under the arrangement is not treated as a renewal option if (i) the compensation for the use under the arrangement is redetermined at generally applicable, fair market value rates that are in effect at the time of renewal; and (ii) the use of the financed property under the same or similar arrangements is predominantly by natural persons who are not engaged in a trade or business.
F.10 No Sale, Lease or Private Operation of the Project.
The Project (or any portion thereof) will not be sold or otherwise disposed of, in whole or in part, to any person who is not a Governmental Unit prior to the final maturity date of the Obligation. The Project will not be leased to any person or entity that is not a Governmental Unit prior to the final maturity date of the Obligation. Except as permitted under Section F.12 hereof, the Recipient will not enter any contract or 187 of 263
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arrangement or cause or permit any contract or arrangement to be entered with persons or entities that are not Governmental Units if that contract or arrangement would confer on such persons or entities any right to use the Project on a basis different from the right of members of the general public. The contracts or arrangements contemplated by the preceding sentence include but are not limited to management contracts, take or pay contracts or put or pay contracts, and capacity guarantee contracts.
F.11 No Disproportionate or Unrelated Use.
No portion of the Project Funds or the Project is being, has been, or will be used for a Private Use that is unrelated or disproportionate to the governmental use of the Project Funds.
F.12 Management and Service Contracts.
The Recipient represents that, as of the date hereof, it is not a party to any contract, agreement or other arrangement with any persons or entities engaged in a trade or business (other than Governmental Units) that involve the management or operation of property or the provision of services at or with respect to the Project that does not comply with the standards of the Treasury Regulations, or Revenue Procedure 2017-13, as applicable. The Recipient represents that it will not be party to any such contract, agreement or arrangement with any person or entity that is not a Governmental Unit for the management of property or the provision of services at or with respect to the Project, while the Obligation (including any obligation or series thereof issued to refund the Obligation, as the case may be) is outstanding, except: (a) with respect to any contract, agreement or arrangement that does not constitute “private business use” of the Project under Code §141(b), or (b) with respect to any contract, agreement or arrangement that complies with (i) Revenue Procedure 97-13, 1997-1 C.B. 632, as amended by Revenue Procedure 2001-39, 2001- 2 C.B. 38, and as amplified by Notice 2014-67, with respect to contracts entered into before August 18, 2017 and not materially modified or extended after August 18, 2017, or (ii) Revenue Procedure 2017-13, with respect to contracts entered into or materially modified or extended on or after August 18, 2017, or (c) with respect to any contract, agreement or arrangement that does not give rise to use of the Bond Funded Portion of the Project Funds or the Project by a non-Governmental Unit of more than the amount of such non-qualified use permitted by the Code, or (d) in the event that the Recipient receives an opinion of counsel, satisfactory to the State Water Board and the Bank and expert in the issuance of state and local government bonds the interest on which is excluded from gross income under Section 103 of the Code (“Nationally-Recognized Bond Counsel”), that such contract, agreement or arrangement will not adversely affect the exclusion of the interest on the Obligation from gross income for federal income taxation purposes.
F.13 No Disposition of Financed Property.
As of the date hereof, the Recipient does not expect to sell or otherwise dispose of any portion of the Project, in whole or in part, prior to the final maturity date of the Obligation.
F.14 Useful Life of Project.
As of the date hereof, the Recipient reasonably expects that the economic useful life of the Project, commencing at Project Completion, will be at least equal to the term of this Agreement, as set forth in Exhibit A hereto.
F.15 Payments.
Payments generally are expected to be derived from assessments, taxes, fees, charges or other current Revenues of the Recipient in each year, and such current Revenues are expected to equal or exceed the Payments during each payment period. Any amounts accumulated in a sinking fund or bona fide debt service fund to pay Payments (whether or not deposited to a fund or account established by the Recipient) will be disbursed to pay Payments within thirteen months of the initial date of accumulation or 188 of 263
Agreement No.: XX-XXX-550
Project No.: X-XX-XXXX-XXX
deposit. Any such fund used for the payment of Payments will be depleted once a year except for a reasonable carryover amount not exceeding the greater of earnings on such fund or one-twelfth of the Payments in either case for the immediately preceding year.
F.16 No Other Replacement Proceeds.
The Recipient will not use any of the Bond Funded Portion of the Project Funds to replace or substitute other funds of the Recipient that were otherwise to be used to finance the Project or which are or will be used to acquire securities, obligations or other investment property reasonably expected to produce a yield that is materially higher than the yield on the Bonds.
F.17 No Sinking or Pledged Fund.
Except as set forth in Section F.18 below, the Recipient will not create or establish any sinking fund or pledged fund which will be used to pay Payments on the Obligation within the meaning of Section 1.148- 1(c) of the Treasury Regulations. If any sinking fund or pledged fund comes into being with respect to the Obligation before the Obligation has been fully retired which may be used to pay the Payments, the Recipient will invest such sinking fund and pledged fund moneys at a yield that does not exceed the yield on the Bonds.
F.18 Reserve Amount.
The State Water Board requires that the Recipient maintain and fund a separate account in an amount equal to one (1) year of debt service with respect to the Obligation (the “Reserve Amount”) as set forth in Exhibit B. The Recipient represents that the Reserve Amount is and will be available to pay debt service with respect to the Obligation, if and when needed. The Reserve Amount consists solely of revenues of the Recipient and does not include any proceeds of any obligations the interest on which is excluded from gross income for federal income tax purposes or investment earnings thereon. The aggregate of the Reserve Amount, up to an amount not exceeding the lesser of (i) ten percent of the aggregate principal amount of the Obligation, (ii) the maximum annual debt service with respect to the Obligation, or (iii) 125 percent of the average annual debt service with respect to the Obligation, will be treated as a reasonably required reserve fund.
F.19 Reimbursement Resolution.
The “reimbursement resolution” adopted by the Recipient is incorporated herein by reference.
F.20 Reimbursement Expenditures.
Reimbursements are disallowed, except as specifically authorized in Exhibit B or Exhibit D of this Agreement. To the extent so authorized, a portion of the Bond Funded Portion of the Project Funds may be applied to reimburse the Recipient for Project Costs paid before the date hereof, so long as the Project Cost was (i) not paid prior to sixty (60) days before the Recipient’s adoption of a declaration of official intent to finance the Project, (ii) not paid more than eighteen (18) months prior to the date hereof or the date the Project was placed-in-service, whichever is later, and (iii) not paid more than three (3) years prior to the date hereof (collectively, “Reimbursement Expenditures”), unless such cost is attributable to a “preliminary expenditure.” Preliminary expenditure for this purpose means architectural, engineering, surveying, soil testing and similar costs incurred prior to the commencement of construction or rehabilitation of the Project, but does not include land acquisition, site preparation and similar costs incident to the commencement of acquisition, construction or rehabilitation of the Project. Preliminary expenditures may not exceed 20% of the Bond Funded Portion of the Project Funds.
F.21 Change in Use of the Project.
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Agreement No.: XX-XXX-550
Project No.: X-XX-XXXX-XXX
The Recipient reasonably expects to use all of the Bond Funded Portion of the Project Funds and the Project for the entire stated term to maturity of the Obligation. Absent an opinion of Nationally- Recognized Bond Counsel to the effect that such use of the Bond Funded Portion of the Project Funds will not adversely affect the exclusion from federal gross income of interest on the Bonds pursuant to Section 103 of the Code, the Recipient will use the Bond Funded Portion of the Project Funds and the Project solely as set forth in this Agreement.
F.22 Rebate Obligations.
If the Recipient satisfies the requirements of one of the spending exceptions to rebate specified in Section
1.148-7 of the Treasury Regulations, amounts earned from investments, if any, acquired with the Bond Funded Portion of the Project Funds will not be subject to the rebate requirements imposed under Section 148(f) of the Code. If the Recipient fails to satisfy such requirements for any period, it will notify the State Water Board and the Bank immediately and will comply with the provisions of the Code and the Treasury Regulations at such time, including the payment of any rebate amount calculated by the State Water Board or the Bank.
F.23 No Federal Guarantee.
The Recipient will not directly or indirectly use any of the Bond Funded Portion of the Project Funds in any manner that would cause the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Code, taking into account various exceptions including any guarantee related to investments during an initial temporary period until needed for the governmental purpose of the Bonds, investments as part of a bona fide debt service fund, investments of a reasonably required reserve or replacement fund, investments in bonds issued by the United States Treasury, investments in refunding escrow funds or certain other investments permitted under the Treasury Regulations.
F.24 Amendments.
The provisions in this Exhibit may be amended, modified or supplemented at any time to reflect changes in the Code upon obtaining written approval of the State Water Board and the Bank and an opinion of Nationally-Recognized Bond Counsel to the effect that such amendment, modification or supplement will not adversely affect the exclusion from federal gross income of interest on the Bonds pursuant to Section 103 of the Code.
F.25 Reasonable Expectations.
The Recipient warrants that, to the best of its knowledge, information and belief, and based on the facts and estimates as set forth in the tax covenants in this Exhibit, the expectations of the Recipient as set forth in this Exhibit are reasonable. The Recipient is not aware of any facts or circumstances that would cause it to question the accuracy or reasonableness of any representation made in the provisions in this Exhibit.
F.26 Assignment.
The Recipient consents to any pledge, sale, or assignment to the Bank or a trustee for the benefit of the owners of the Bonds, if any, at any time of any portion of the State Water Board's estate, right, title, and interest and claim in, to and under this Agreement and the right to make all related waivers and agreements in the name and on behalf of the State Water Board, as agent and attorney-in-fact, and to perform all other related acts which are necessary and appropriate under this Agreement, if any, and the State Water Board's estate, right, title, and interest and claim in, to and under this Agreement to Payments (but excluding the State Water Board's rights to Additional Payments and to notices, opinions and indemnification under each Obligation).
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[DATE]
[FORM OF OPINION OF GENERAL COUNSEL – insert your letterhead]
St
ate Water Resources Control Board
Division of Financial Assistance
Attn: David Bruglia
1001 I Street
Sacramento, CA 95814
Re: Recipient Entity (“Recipient”) – Name of Project –Project No. [xxxxxxxxxxx] (“Project”) – Agreement No. [xxxxxxxxxxxxxxxxx] (“Agreement”)
Ladies
and Gentlemen:
I am/This firm acts as General Counsel to the Recipient in connection with the Project. This opinion is delivered to the State Water Resources Control Board (“State Water Board”) at the request of the Recipient. In connection therewith, I have examined the laws pertaining to the Recipient, originals of the Agreement between the Recipient and the State Water Board, the Recipient’s authorized representative resolution [number] adopted on [DATE], the Recipient’s rate- setting resolution [number] adopted on [DATE], (collectively, “the Resolutions”), and such other documents, legal opinions, instruments and records, and have made such investigation of law, as I have considered necessary or appropriate for the purpose of this opinion.
Bas
ed on the foregoing, it is my opinion that:
a. The Recipient, a general law city/charter city/county/special district of the State of California duly organized, validly existing under the laws of the State of California pursuant to [INSERT SPECIFIC CODE SECTIONS], has the requisite legal right, power, and authority to execute and deliver the Agreement and carry out and consummate all transactions contemplated therein.
b. The Res
olutions have been duly adopted at meetings of the Recipient which were called and held pursuant to law with all public notice required by law and at which a quorum was present and acting when the Resolutions were adopted. The Resolutions are in full force and effect and have not been amended, modified, supplemented, or rescinded, nor has the rate-setting resolution been challenged or the rates become subject of a referendum or initiative or other similar process.
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c.
To the best of my knowledge and based upon a reasonable investigation, all proceedings required by law or under the ordinances or bylaws of the Recipient to be taken by the Recipient in connection with the authorization of the Agreement and the transactions contemplated by and related thereto, and all such approvals, authorizations, consents or other orders of or filings or registrations with such public boards or bodies, if any, as may be legally required to be obtained by the Recipient prior to the date hereof with respect to all or any of such matters have been taken or obtained and are in full force and effect, except that no opinion is expressed as to any approvals, obligations or proceedings which may be required under any federal securities laws or state blue sky or securities laws.
d. To the best of my knowledge and based upon a reasonable investigation, the execution and delivery of the Agreement and the consummation of the transactions therein will not conflict with or constitute a breach of or default (with due notice or the passage of time or both) under (i) the statutes creating the Recipient or any amendments thereto, (ii) the ordinances or by laws of the Recipient, (iii) any bond, debenture, note or other evidence of indebtedness, or any material contract, agreement or lease to which the Recipient is a party or by which it or its properties are otherwise subject or bound or (iv) any applicable law or administrative regulation or any applicable court or administrative decree or order. All material contracts, agreements, or leases are listed in Exhibit D of the Agreement.
e. [ paragraph required for construction projects; delete if solely planning and no access to property will occur during planning]: To the best of my knowledge and based upon a reasonable investigation, the Recipient has sufficient property rights in the Project property for the purposes contemplated in the Agreement and has complied with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.) with respect to any property acquired for the purposes of the Project. These property rights extend for at least 50 years from today’s date, as follows: [in perpetuity][date certain].
f. To the bes
t of my knowledge and based upon a reasonable
investigation, there is no action, suit, proceeding, inquiry or investigation before any court, or by any federal, state, municipal or other governmental authority pending or threatened against or affecting the Project or the system of which the Project is a part (the System), or the assets, properties, or operations of the Recipient relating to the Project or System, which, if determined adversely to the Recipient or its interests would result in any material change in the assets or financial condition of the Recipient, the Project, or the 192 of 263
S
ystem; and the Recipient is not in default with respect to any order or decree of any court or any order, regulation, or demand of any federal, state, municipal, or other governmental agency which default might have consequences that would materially and adversely affect the financial condition of the Recipient, the Project, or the System.
g. No facts have come to my attention which lead me to believe that the Recipient’s authorized representative has made any untrue statement of a material fact or omitted or omits to state a material fact or has made misleading statements in the Agreement.
h. The Agreement has been duly authorized, executed, and delivered, and assuming due authorization, execution and delivery of the Agreement by the State Water Board, constitutes legal, valid, and binding obligation of the Recipient enforceable against the Recipient in accordance with its terms, subject to the laws relating to bankruptcy, insolvency, reorganization, or creditors’ rights generally and to the application of equitable principles, if equitable remedies are sought.
Sincerely,
General Counsel
[Recipient Name]
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STAFF REPORT
City of Wasco
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
DATE: January 21, 2025
SUBJECT: Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute Proposals/Purchase Orders with Crossroads Software, Inc. and Trimble Forensics for the Implementation of the eCitation System and Trimble Total Station by the State of California Office of Traffic Safety, Traffic Records Improvement Project (TRIP).
_____________________________________________________________________________________ Recommendation:
Staff recommends that the City Council:
1) Adopt a resolu tion authorizing the City Manager or designee to finalize and execute Proposals/Purchase Orders with Crossroads Software, Inc. and Trimble Forensics for the Implementation of the eCitation System and Trimble Total Station by the State of California Office of Traffic Safety, Traffic Records Improvement Project (TRIP); and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15378, no environmental review is required.
Environmental Review:
Staff has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA Guidelines because the proposed activity consists of a governmental fiscal/administrative activity that does not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Background:
The City of Wasco, which is home to approximately 27,430 residents, is committed to enhancing public safety and improving the efficiency of its Police Department. Since its establishment on April 18, 2024, the Wasco Police Department has managed over 8,500 incidents, with nearly half of these being initiated proactively by officers. To effectively manage this level of activity, the department requires tools that streamline operations and enhance efficiency.
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The eCitation System by Crossroads Software, Inc. will simplify the citation process, allowing officers to issue citations faster and with fewer errors. This means officers can spend less time on paperwork and more time focusing on community engagement and proactive policing. For residents, this system ensures that citations are processed quickly and accurately, reducing potential disputes and delays. By seamlessly integrating with court systems, the eCitation System also speeds up case handling, benefiting both the Police Department and the public.
The Trimble Forensics Total Station is state-of-the-art equipment used to document crime and accident scenes with precision, creating accurate maps and 3D reconstructions.
The Trimble SX10 3D Scanning Total Station, in particular, offers advanced capabilities for capturing evidence and spatial relationships. Such tools are invaluable for detailed forensic analysis and courtroom presentations.
These technologies represent a significant step forward in modernizing the Wasco Police Department, demonstrating a commitment to innovative solutions that enhance public safety and foster trust between officers and the community they serve.
The implementation of these technologies is expected to take approximately 60 days upon approval. As part of our due diligence in the procurement process, we sought quotes from three different vendors for these technologies. While some vendors provided responses, others did not. All relevant documents, including quotes and communication records, are attached to this staff report for reference.
Discussion:
The eCitation System will bring significant improvements to the Wasco Police Department's operations and directly benefit the community. By allowing officers to scan driver licenses and registration documents, the system reduces errors and speeds up the citation process. Configurable drop-down menus ensure consistency with court requirements, making the entire process more accurate and efficient.
The Trimble Forensics Total Station complements these efforts by providing cutting-edge technology to accurately document crime and accident scenes. By integrating this tool into the department, officers will have access to highly precise data for analysis and investigation, further strengthening the department’s commitment to modern, effective policing.
For Wasco residents, these improvements translate into more responsive and effective policing. Officers will spend less time on administrative tasks and more time addressing community concerns and engaging with residents. The system also helps the department use data more effectively by identifying patterns and problem areas, enabling officers to target resources where needed most. This combination of efficiency and data-driven enforcement strategies will enhance public safety and reinforce trust between the Police Department and the community.
Fis
cal Impact:
The total cost for implementing the eCitation System in the Wasco Police Department is approximately $103,000. This includes licensing for both mobile and desktop applications 195 of 263
and mobile printers for each officer. Annual support and maintenance costs are estimated at $5,000. These expenses will be covered using the OTS grant funding.
The Trimble SX10 3D Scanning Total Station costs approximately $53,000, with an annual software subscription fee of $475. Future purchases of this equipment will be subject to budget approval and available funding sources. Annual fees for both systems can be covered by the revenue generated from citations, which is anticipated to offset most, if not all, of these costs.
Both the eCitation System and the Trimble Forensics Suite include annual maintenance fees. However, these fees can be offset by revenue generated from citations, which is expected to cover most, if not all, of the ongoing costs.
Attachments:
1. Resolution
2. Proposal
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RESOLUTION NO. 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO AUTHORIZING
THE CITY MANAGER OR DESIGNEE TO FINALIZE AND EXECUTE PROPOSALS/ PURCHASE ORDERS WITH CROSSROADS SOFTWARE, INC. AND TRIMBLE FORENSICS FOR THE
IMPLEMENTATION OF THE ECITATION SYSTEM AND TRIMBLE TOTAL STATION FUNDED BY STATE
OF CALIFORNIA OFFICE OF TRAFFIC SAFETY, TRAFFIC RECORDS IMPROVEMENT PROJECT (TRIP)
WHEREAS, the City wishes to implement the Traffic Records Improvement Project (TRIP), which entails the p urchasing and implement ing an e- citation system from Crossroads Software, Inc. and a Trimble Total Station from Trimble Forensics, which are being funded by California Office of Traffic Safety (OTS) Traffic Records Improvement Program Grant Agreement Number #TR25034, the total grant amount is $157,000.00; and WHEREAS, the e-Citation System by Crossroads Software, Inc. will streamline the citation process with features such as barcode scanning, customizable violation lists, and seamless integration with court and records management systems, reducing administrative burdens and minimizing errors; and
WHEREAS, the Trimble Forensics Total Station provides state-of-the-art tools to accurately document crime and accident scenes, offering precision mapping and 3D reconstructions that support detailed investigations and courtroom presentations; and WHEREAS, implementing these technologies will enable officers to dedicate more time to community engagement and proactive policing while enhancing their ability to respond effectively to incidents; and
WHEREAS, these systems’ data analytics capabilities will help the Wasco Police Department identify problem areas and deploy targeted enforcement strategies, further improving public safety and operational efficiency; and WHEREAS, the products and services proposed by Crossroads Software, Inc. and Trimble Forensics have been reviewed by Staff and determined to meet the City’s needs, including their user-friendly design, integration capabilities, and long-term support; and WHEREAS, the Proposals, Quotes, and Purchase Orders shall not be valid unless and until so approved by Chief of Police and executed by the City Manager or designee.
NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or designee to finalize and execute proposals, quotes, and or purchase orders with Crossroads Software, Inc. and Trimble Forensics.
SECTION 2: The Traffic Records Improvement Project will be funded by the California Office of Traffic Safety (OTS) Traffic Records Improvement Program Grant Agreement Number #TR25034; the total grant amount is $157,000.00.
-o0o-
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I HEREBY CERTIFY that the foregoing Resolution No. 2025 - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on January 25, 2025, by the following vote:
COUNCIL MEMBERS: MEDINA, SALDAÑA, MARTINEZ, RAYA, REYNA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________________
VALENTIN MEDINA
MAYOR of the City of Wasco
Attest: ________________________
__________________________
MARIA O. MARTINEZ, CMC
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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.
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
Luis Villa, Public Works Director
DATE: January 21, 2025
SUBJECT: Adopt a Resolution Authorizing the City Manager or designee to Endorse and enter into an Agreement with Nagle Earthworks for the Scofield Avenue Improvement Project in the amount of $ 456,176.00 and allowing the City Manager to execute Contract Change Orders in an amount not to exceed an aggregate of $75,000.00.
Recommendation:
Staff recommends the City Council:
1) Adopt a Resolution a uthorizing The City Manager or designee to Endorse and enter into an Agreement with Nagle Earthworks for the Scofield Avenue Improvement Project in the amount of $ 456,176.00 and allowing the City Manager to execute Contract Change Orders in an amount not to exceed an aggregate of $75,000.00.
2) Find that this Project is classified as categorically exempt pursuant to CEQA Section 15332. No environmental review is required.
Environmental Review:
Staff has reviewed the proposed Project for compliance with the California Environmental Quality Act (CEQA) and has determined that the Project is categorically exempt pursuant to CEQA Section 15332 as it is characterized as in -fill development meeting the conditions described in this section. Thus, no environmental review is required.
Discussion:
Scofield Avenue has been deteriorating rapidly over the past five years or so. Within the past six months, the City has received various complaints regarding potholes and general conditions of the roadway. Over the past few months, Staff also noted the deteriorating condition, which prompted staff to obtain a cost proposal and subsequent soil investigation to aid in design. After reviewing the soil investigation, the engineering staff proceeded quickly with a survey and design to develop the plans and specifications for the project.
STAFF REPORT
City of Wasco
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The City advertised for bids on December 14, 2024, and opened bids on January 8, 2025, at 2:00 PM.
Staff received six (6) bids from Contractors as follows:
Contractor Cost
Nagle Earthworks $ 456,176.00
Burtch Construction $ 555,948.50
Griffith Company $ 477,343.00
Mac General Engineering $ 488,164.19
Westrock LLC $ 502,999.00
Bowman Asphalt $ 537,588.00
After reviewing the provided quotes and supplied bid documents, Staff has determined that Nagle Earthworks is the most cost -effective qualified contractor. As such, Staff recommends awarding the Project to Nagle Earthworks.
Fiscal Impact:
In the City Capital Improvement Project budget , the Council approved Project #20215 for the preservation of pavement citywide. The project has an approved CIP construction budget of $603,400 for the 24/25 FY. With the low bid coming in at $456,176.00, this leaves us with $ 147,224 remaining in the budget this FY for contingencies and/or other preservation projects.
Attachments:
1. Resolution
2. Agreement
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RESOLUTION NO. 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO AUTHORIZING THE CITY
MANAGER OR DESIGNEE TO AWARD, FINALIZE, AND ENTER INTO AN AGREEMENT WITH
NAGLE EARTHWORKS FOR THE SCOFIELD AVENUE IMPROVEMENT PROJECT IN THE AMOUNT OF $456,176.00 AND AUTHORIZE THE CITY MANAGER OR DESIGNEE TO EXECUTE CONTRACT CHANGE ORDERS IN AN AMOUNT NOT TO EXCEED AN AGGREGATE OF $75,000.00 WHEREAS, the City of Wasco wishes to contract with Nagle Earthworks for the Scofield Avenue Improvement Project; and
WHEREAS, the services provided are described in the Agreement found in Exhibit “A”; and
WHEREAS, said Agreement has been made in the form and manner prescribed by the City of Wasco Municipal Code and the California Public Contract Code; and
WHEREAS, Nagle Earthworks and the City acknowledge that each party and their respective legal counsel have reviewed the Agreement; and
WHEREAS, the Agreement shall be governed by and construed in accordance with the laws of the State of California; and
WHEREAS, Nagle Earthworks agrees to comply with the State prevailing wage determinations in effect ten days prior to the bid opening of January 8, 2025; and
WHEREAS, allowing the City Manager or designee to execute Contract Change Orders not to exceed $75,000.00.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or designee to finalize and execute an Agreement with Nagle Earthworks Scofield improvement Project in an amount not to exceed $456,176.00.
SECTION 2: Authorizes the City Manager or designee to execute Contract Change Orders in an amount not to exceed an aggregate of $75,000.00.
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-o0o-
I HEREBY CERTIFY that the foregoing Resolution No. 2025. - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on January 21, 2025, by the following vote:
COUNCIL MEMBERS: MEDINA, MARTINEZ, REYNA, SALDAÑA, RAYA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________
VALENTIN MEDINA,
MAYOR of the City of Wasco
Attest: _______________
__________________________________
MARIA O. MARTINEZ
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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CITY OF WASCO
AGREEMENT
This Agreement, made and entered into this 21st d ay of January, 2025, by and between the CITY OF WASCO, hereinafter called “City”, and Nagle Earthworks hereinafter called “Contractor”.
WI
TNESSETH: That the parties hereto do mutually agree as follows:
ARTICLE I. That for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by the said party of the first part, and under the conditions expressed in the 2 bonds, bearing even date with these presents, and hereunto annexed, the said party of the second part agrees with the said party of the first part, at his own proper cost and expense, to do all the work and furnish all the materials, except such as are mentioned in the specifications to be furnished by said party of the first part, necessary to construct and complete in a good, workmanlike and substantial manner and to the satisfaction of the CITY OF WASCO, the work described in the special provisions and the project plans described below, including any addenda thereto, and also in conformance with the California Department of Transportation Standard Specifications Dated 2023 and Standard Plans Dated 2023, and the Labor Surcharge and Equipment Rental Rates in effect on the date the work is accomplished, which said special provisions, project plans, Standard Plans, Standard Specifications, and Labor Surcharge and Equipment Rental Rates are hereby specially referred to and by such reference made a part hereof.
The
Special Provisions for the work to be done are entitled:
CITY OF WASCO
NOTICE TO CONTRACTORS & SPECIAL PROVISIONS
SCOFIELD AVENUE REHABILITATION PROJECT
Contractor shall, in accordance with the SPECIFICATIONS and drawings therefore , furnish at its own expense all labor, materials, equipment and services as required therefore , and to do everything required in this Agreement and the SPECIFICATIONS.
ARTICLE II. The City hereby employs said Contractor to perform the work according to the terms of this Agreement and the SPECIFICATIONS for price(s) named in Contractor’s bid proposal (hereinafter “Proposal”), and agrees to pay the same at the time, in the manner, and upon the conditions set forth in the SPECIFICATIONS; and the parties for themselves, their heirs, executors, administrators, successors, and assigns, do hereby agree to the full performance of the covenants herein contained.
ARTICLE III. I
t is expressly agreed by and between the parties hereto that should there by any conflict between the terms of this Agreement and the Proposal of said Contractor, then this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of said proposal conflicting herewith.
ARTICLE IV. Contractor acknowledges that State funds are being utilized to assist in the funding of the construction required in this Agreement and agrees that any required terms, conditions or covenants related to said federal funding not specifically made a part of this Agreement are hereby incorporated by this reference and shall be made a part of this Agreement.
ARTICLE V. P
rior to starting construction under the terms of this Agreement, Contractor shall provide to the City a Faithful Performance Bond and the Labor Materials Bond, as required in the SPECIFICATIONS.
ARTICLE VI. C
ontractor and any subcontractors shall maintain all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement or the work to be provided for her eunder. All parties shall make such materials available at their respective offices as required in the SPECIFICATIONS.
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ARTICLE VII. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.
ARTICLE VII
I. In addition to any other Indemnification requirements in the SPECIFICATIONS, the Contractor agrees to indemnify, defend and save harmless the City, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, materialmen, laborers and any other person, firm or corporation furnishing or supplying work services, materials or supplies in connection with the performance of this Agreement, and from any and all clai ms and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by the Contractor in the performance of this Agreement, except such loss which was caused by the sole negligence or willful misconduct of the City.
ARTICLE IX. I
n addition to any other insurance provisions required in the SPECIFICATIONS, Contractor shall provide insurance to the City as set forth in Exhibits [1, 1-A, 2, 3, 4, 6, 11].
ARTICLE X. The
Contractor, and the agents and employees of Contractor, in the performance of the Agreement, shall act in an independent capacity and not as officers or employees or agents of the City.
ARTICLE XI. T
he City may terminate this Agreement and be relieved of the payment of any consideration to Contractor should Contractor fail to perform the covenants herein contained or contained in the SPECIFICATIONS at the time and in the manner as required. In the event of such termination, the City may proceed with the work in any manner deemed proper by the City. The cost to the City shall be deducted from any sum due the Contractor under this Agreement, and the balance, if any, shall be paid to the Contractor upon demand.
ARTICLE XII. W
ithout the written consent of the City, this Agreement is not assignable by Contractor either in whole or in part.
ARTICLE XIII. T
ime is of the essence in this Agreement.
ARTICLE XIV. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto; and no oral understanding or Agreement not incorporated herein shall be binding on any of the parties hereto.
ARTICLE XV. The City, contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate.
ARTICLE XVI. By my signature hereunder, as Contractor, I certify that I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Agreement.
ARTICLE XVII.
And the said Contractor agrees to receive and accept the following prices as full compensation for furnishing all materials and for doing all the work contemplated and embraced in this agreement; also for all loss or damage, arising out of the nature of the work aforesaid, or from the action of the elements, or from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the work until its acceptance by the CITY OF WASCO, and for all risks of every description connected with the work; also for all expenses incurred by or in consequence of the suspension or discontinuance of work and for well and faithfully completing the work, and the whole thereof, in the manner and according to the plans and specifications, and the requirements of the Engineer under them, to wit:
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
ATTEST:
BY BY
Maria O. Martinez M. Scott Hurlbert
City Clerk, City of Wasco City Manager, CITY OF WASCO
“CONTRACTOR”
BY
(Title)
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.
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
Luis Villa, Public Works Director
DATE: January 21, 2025
SUBJECT: Update for the Council on the Sustainable Groundwater Management Act (SGMA): Authorization is requested for the City Manager or designee to incur travel expenses exceeding $500.00 and to make public statements, as well as to endorse letters of support for the Groundwater Sustainability Plan submitted by the Kern County Subbasin.
Recommendation:
1) Update for the Council regarding the Sustainable Groundwater Management Act (SGMA) and authorization for the City Manager or designee to incur travel expenses exceeding $500.00 and to make public statements and endorse letters of support for the Groundwater Sustainability Plan submitted by the Kern County Subbasin; and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3), no environmental review is required.
Environmental Review:
The staff has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA guidelines because the proposed activity consists of a governmental fiscal/administrative activity which does not result in a physical change in the environment; therefore, pursuant to Section 1506 0(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Background:
The Sustainable Groundwater Management Act (SGMA), enacted in 2014, established a framework for protecting California's groundwater resources, emphasizing local control and stakeholder engagement.
Under SGMA, local agencies must create Groundwater Sustainability Agencies (GSAs) to develop Groundwater Sustainability Plans (GSPs) that include:
- A Sustainability Goal
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- A description of the Plan Area
- Basin Setting details, including historical and current groundwater conditions - Locally defined Sustainable Management Criteria (SMCs) - Monitoring networks for sustainability indicators
- Projects and management actions to achieve sustainability
The Kern County Subbasin, part of the San Joaquin Valley Groundwater Basin and identified as critically over drafted, is required to develop a GSP by 2020 to ensure long- term sustainability by 2040. This area includes eight cities and several unincorporated communities within Kern County.
On June 20, 2018, the City of Wasco signed a Cooperative Agreement with the City of Shafter, North Kern Water Storage District, and Shafter-Wasco Irrigation District, forming its own GSA to coordinate SGMA compliance and implementation.
Discussion:
Following up on the discussion about the Sustainable Groundwater Management Act (SGMA) from the council meeting on November 5, 2024, the California State Water Resources Control Board (referred to as the State Water Board or the Board) will hold a public hearing on February 20, 2025. The purpose of this hearing is to determine whether to designate the Kern County Subbasin as a probationary basin under the SGMA.
The Groundwater Sustainability Agencies (GSAs) in the Kern County Subbasin have collaborated to revise their plan to meet state requirements. However, the water board staff has not yet approved the plan. The public hearing will take place in Sacramento, where public comments will be welcomed. Advocacy from disadvantaged communities is encouraged, as being placed on probation could lead to complete state intervention and implementation of the plan, which may have significant negative financial impacts on the community and the region.
Being placed on probation indicates a potential for state intervention, which may lead to water extraction fees and reduced water allocations for the surrounding areas if the plan fails to meet state requirements. The Groundwater Sustainability Agencies (G SAs) are actively seeking detailed feedback on any deficiencies in the plan so they can make the necessary corrections and develop a strategy that secures state approval. Since Wasco is classified as a disadvantaged community and has a drinking water system, staff have requested an exemption from extraction fees if the water board finds the plan inadequate. As the process continues, there will be a need and opportunity for City staff to represent Wasco’s position and interests via written and verbal testimony. Staff requests authorization to issue this testimony as appropriate.
Fiscal Impact:
Travel and lodging details are still pending, however t he Adopted FY 2024/2025 Operating Budget contains sufficient funds to cover this expense. No budget action is required with the approval of this item.
Attachments:
1. State Water Resources Control Board Public Hearing Agenda
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State Water Resources Control Board
February 20, 2025, Kern County Subbasin
Probationary Hearing Agenda
The California State Water Resources Control Board (State Water Board or Board) will hold a public hearing on February 20, 2025, to consider whether to designate the Kern County Subbasin as a probationary basin pursuant to the Sustainable Groundwater Management Act (SGMA). See the Kern County Subbasin Probationary Hearing Notice for information on parking and accessibility for the hearing.
This probationary hearing will be included as an item on the agenda of the February 20, 2025 Board meeting. The expected order of events for the hearing are described below.
The hearing may start as early as, but not before, 9:00 a.m. Time limits, breaks, panels, and the order of events may change at the discretion of the Board Chair. Board questions and discussions may occur throughout.
Hearing Agenda
1. Public Comments by elected officials or California Native American Tribes
2. Presentation of State Water Board Staff Recommendations
3. Panel Presentation by Kern County Subbasin Groundwater Sustainability Agencies (GSAs)
Break
4. Other Panels Specific to the Kern County Subbasin (see “How to Participate” below)
5. General Public Comment (may be interspersed with panels depending on number of panels)
6. Board Discussion and Potential Vote on Probationary Designation 214 of 263
How to Participate
The State Water Board will hold the public probationary hearing at the time and location noted below. There are also options to participate remotely. If you are participating remotely and would like to make a public comment or are part of a panel presentation, see the instructions below. If you do not wish to speak, the English, Spanish, and Punjabi webcasts of the public hearing with closed captioning can be accessed at video.calepa.ca.gov.
Public Board Hearing
Thursday, February 20, 2025, at 9:00 a.m.
In-Person Location
Coastal Hearing Room
Joe Serna Jr. CalEPA Headquarters Building
1001 I Street, Second Floor
Sacramento, CA 95814
Spanish and Punjabi interpretation will be provided. For language services other than Spanish or Punjabi, please contact 916.322-6508 or
[email protected].
Public Comments. Members of the public may submit written comments in advance of the public probationary hearing by contacting the Office of Sustainable Groundwater Management at [email protected] no later than 12:00 noon on Thursday, February 13, 2025. Please use the subject line: “Comments – Kern County Subbasin.”
Members of the public will also have an opportunity to make oral comments at the probationary hearing. T
o ensure a productive, efficient, and fair hearing in which all participants have an opportunity to be heard, oral comments will be limited to up to five minutes per speaker unless otherwise directed. If there are a large number of commenters, speakers may be asked to shorten their comments to accommodate all speakers.
To provide an oral comment remotely or in person: Before or on the day of the public Board hearing, fill out our online form at bit.ly/speaker-card-form. Please note that the form will not accept responses until February 12, 2025, at 8:00 a.m. The Board Clerk will provide you with Zoom login information in advance of the meeting. For more information about participating remotely, please visit bit.ly/providingcomments.
Panels. The State Water Board will consider requests by groups that wish to provide a panel presentation, rather than individual public comments. Panel presentations must be relevant to the potential probationary designation or to groundwater management in the Kern County Subbasin. Panel presentations will be limited to up to 20 minutes unless otherwise directed. The purpose of panels is to provide an option for groups or organizations to present information collectively and efficiently, including technical details and shared expertise. See below on how to request a panel at the hearing. 215 of 263
To request a panel: Please complete the Panel Request Form available here: Panel Request Form as soon as possible, but no later than January 23, 2025. Please submit the following information:
1. The topic of the proposed panel
2. The primary contact for the panel
3. The name of each presenter
4. The entity or entities being represented
5. Whether the panel intends to use one or more PowerPoint presentations
6. An email address and phone number for each presenter
7. Specification as to whether a presenter intends to participate on the panel virtually or in person
8. The time requested for the panel presentation (panels may request up to 20 minutes in total).
Only one form needs to be submitted for each proposed panel presentation.
Staff will contact the primary contact for the panel to confirm if the proposed panel is approved and the length of time allotted for the panel. Presentation length will be at the discretion of the State Water Board.
Panel slides: If a panel plans to use a PowerPoint presentation, that PowerPoint presentation must be submitted to [email protected] no later than January 29, 2025, at 12:00 noon. This will allow the State Water Board time to translate the presentation to Spanish and Punjabi in advance of the hearing. Presentations must be in PowerPoint format and should not include any animations, transitions, or external media sources. Slides should be fully editable to enable translation. If a panel does not submit its proposed PowerPoint presentation by this deadline, it may not be presented during the hearing.
Summary of Deadlines and Key Dates
Deadline / Activity Date
Deadline to request a panel January 23, 2025
Deadline to submit panel PowerPoint slides January 29, 2025, at 12:00 noon Sign up to provide a comment in person or
virtually using bit.ly/speaker-card-form
Form opens February 12, 2025; can
sign up prior to or during the hearing
Deadline to submit written comments February 13, 2025, at 12:00 noon 216 of 263
.
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
Luis Villa, Public Works Director
DATE: January 21, 2025
SUBJECT: Adopt a resolution to authorize the City Manager or Designee to Enter into and Endorse an Agreement with the Kern Water Collective to S upport Groundwater Protection and Mitigation Efforts.
Recommendation:
Staff recommends the City Council:
1) Adopt a resolution to authorize the City Manager or their designee to enter into and endorse an agreement with the Kern Water Collective to support groundwater protection and mitigation efforts; and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c) (3), no environmental review is required.
Environmental Review:
Staff has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA guidelines because the proposed activity consists of a governmental fiscal/administrative activity which does not result i n a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Background:
On May 31, 2018, the Central Valley Regional Water Quality Control Board adopted amendments to the Water Quality Control Plans for the Sacramento River, San Joaquin River, and Tulare Lake Basins. These amendments established a Salt and Nitrate Control Program, known as the Basin Plan Amendments.
The State Water Resources Control Board approved these amendments on October 16, 2019, and the Office of Administrative Law followed on January 15, 2020. Some sections took effect immediately, while others required approval from the U.S. Environmental Protection Agency. A key part of the amendments is the Nitrate Control Program,
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effective January 15, 2020, which regulates nitrate discharges into groundwater designated for municipal and domestic supply. The program targets entities under the Central Valley Water Board's oversight and is implemented according to priorities set in the Basin Plan Amendments.
Discussion:
On December 29, 2023, the Central Valley Water Board issued a Notice to Comply with the Nitrate Control Program to nitrate- permitted dischargers located within the eight identified Priority 2 basins. This includes the wastewater treatment facility for the city of Wasco. The Notice to Comply, outlined in the Basin Plan Amendments, requires permit holders from the Central Valley Water Board to follow one of two approaches to meet the new requirements: they can either pursue an individual permitting approach (Pathway A) or voluntarily collaborate with other permit holders to create a Management Zone (Pathway B).
After discussing all available options with our staff, we have determined that Pathway B is the only viable solution for the city to meet the necessary requirements. This pathway allows us to join a management zone with local permit holders who work together to reduce nitrate loading and address water quality issues while minimizing the costs associated with Pathway A. To ensure compliance, the city of Wasco will enter into a voluntary contribution agreement with the Kern Water Collaborative. This agreement and the associated contributions will support efforts related to well testing, replacement, and improvements to our groundwater.
Fiscal Impact:
The expected annual contribution is anticipated to be $7,000.00 or less for the fiscal year. If contributions exceed this amount for any reason, staff will seek council approval before making any contributions. Future annual contributions will be included in subsequent adopted operating budgets.
Attachments:
1. Resolution
2. Agreement
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RESOLUTION NO. 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO TO AUTHORIZE THE CITY
MANAGER OR DESIGNEE TO ENTER INTO AND ENDORSE AN AGREEMENT WITH THE KERN
WATER COLLECTIVE TO SUPPORT GROUNDWATER PROTECTION AND MITIGATION EFFORTS WHEREAS, the City of Wasco wishes to contract an agreement with the Kern Water Collective to support groundwater protection and mitigation efforts; and WHEREAS, the services provided are described in the Agreement; and WHEREAS, said Agreement has been made in the form and manner prescribed by the City of Wasco Municipal Code and the California Public Contract Code; and
WHEREAS, Kern Water Collective and the City each acknowledge that each party and their respective legal counsel have reviewed the Agreement; and
WHEREAS, the Agreement shall be governed by and construed in accordance with the laws of the State of California.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or designee to enter into and endorse an agreement with the Kern Water Collective to support groundwater protection and mitigation efforts.
SECTION 2: Authorizes the necessary budget appropriations required to complete this action.
-o0o-
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I HEREBY CERTIFY that the foregoing Resolution No. 2025 - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on January 21, 2025, by the following vote:
COUNCIL MEMBERS: MEDINA, SALDAÑA, MARTINEZ, RAYA, REYNA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________
VALENTIN MEDINA,
MAYOR of the City of Wasco
Attest: _______________
__________________________________
MARIA O. MARTINEZ, CMC
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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1 KERN WATER COLLABORATIVE VOLUNTARY CONTRIBUTION AGREEMENT TO SUPPORT
EFFORTS RELATED TO WELL TESTING, REPLACEMENT WATER AND GROUNDWATER IMPROVEMENTS IN KERN COUNTY’S WESTSIDE SOUTH, POSO AND KERN RIVER GROUNDWATER BASINS/SUBBASINS,
AND IN THE SMALL PORTION OF THE TULARE LAKE GROUNDWATER BASIN/SUBBASIN THAT IS
LOCATED WITHIN THE DUDLEY RIDGE WATER DISTRICT BOUNDARIES AND THAT ALSO EXISTS
WITHIN THE BOUNDARIES OF THE WESTSIDE WATER QUALITY COALITION This Voluntary Contribution Agreement (this “Agreement”) is entered into this day of , 20 (the “Effective Date”), by and between the KERN WATER COLLABORATIVE, a California nonprofit public benefit corporation (hereafter “KWC”) and the ___________________________________________________, (hereafter “Contributor”) (referred to individually as “Party” or collectively “Parties).
BACKGROUND
1. On May 31, 2018, the Central Valley Regional Water Quality Control Board (Central Valley Water Board) adopted amendments to the Water Quality Control Plans for the Sacramento River and San Joaquin River Basins and the Tulare Lake Basin to incorporate a Central Valley-Wide Salt and Nitrate Control Program (Basin Plan Amendments). The Basin Plan Amendments were approved by the State Water Resources Control Board (State Water Board) on October 16, 2019, and the Office of Administrative Law on January 15, 2020. Parts of the Basin Plan Amendments became effective upon Office of Administrative Law approval. Other parts became effective after receiving approval from the United States Environmental Protection Agency.
2. The Basin Plan Amendments include the Central Valley Water Board’s program to regulate nitrate discharges to groundwater (Nitrate Control Program). The Nitrate Control Program became effective on or about January 15, 2020.
3. The Nitrate Control Program applies to those that are regulated by the Central Valley Water Board for discharges or threatened discharges of nitrate to groundwater basins that are designated with the municipal and domestic supply (MUN) beneficial use. Application of the Nitrate Control Program to discharges that are subject to Central Valley Water Board authority is being implemented based on priorities set forth in the Basin Plan Amendments and as directed by the Central Valley Water Board.
4. The Nitrate Control Program, as adopted by the Central Valley Water Board, identifies the following six Priority 1 groundwater basins/subbasins, Kaweah, Turlock, Chowchilla, Tule, Modesto and, Kings; the following Priority 2 groundwater basins/subbasins, Yolo, Eastern San Joaquin, Delta-Mendota, Merced, Madera, Tulare Lake, Kern County (Westside South), and Kern County (Poso); and, designates the remaining areas as non-prioritized areas, which includes the Kern River groundwater basin/subbasin located in Kern County.1 Compliance with the Nitrate Control Program is triggered by the issuance of a Notice to Comply from the Central Valley Water Board to permittees that discharge or threaten to discharge nitrate to groundwater. Upon receipt of the Notice to Comply, permitted dischargers need to select one of two pathways for complying with the Nitrate Control Program.
5. The Notice to Comply, as set forth in the Basin Plan Amendments, requires those that are permitted by the Central Valley Water Board to either meet the new requirements through an individual 1 The groundwater basins/subbasins names and boundaries identified in this Agreement are from the Department of Water Resources Bulletin 118 as it existed in 2014 and as incorporated into the Basin Plan. 21st January
25 CITY OF WASCO
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2 permitting approach (Pathway A) or voluntarily work with other permittees as a Management Zone (Pathway B).
6. Voluntary participation in a Management Zone is considered by the Central Valley Water Board to be an alternative compliance pathway to traditional permitting approaches and includes incentives that allow those voluntarily selecting Pathway B significant additional time to comply with the Nitrate Control Program.
7. Irrigated agriculture is permitted to discharge nitrate through the issuance of General Waste Discharge Requirements that apply to Members of Third-Party Groups and recognized Third Party Groups (Ag Coalitions) receive the Notice to Comply for growers that are Members of that Third Party Group. As directed in the General Waste Discharge Requirements issued by the Central Valley Water Board, Ag Coalitions select the compliance approach (i.e., pathway) for its members to comply with the Central Valley Water Board’s Nitrate Control Program.
8. The Central Valley Dairy Representative Monitoring Program (CVDRMP) conducts monitoring on behalf of its dairy and bovine members and assists them with compliance with the Central Valley Water Board’s Nitrate Control Program. The CVDRMP selects the compliance approach (i.e., pathway) for its Members for complying with the Central Valley Water Board’s Nitrate Control Program.
9. On May 30, 2020, the Central Valley Water Board sent a Notice to Comply with the Nitrate Control Program to nitrate permitted dischargers and Ag Coalitions that have Members within the boundaries of the six identified Priority 1 basins.
10. On December 29, 2023, the Central Valley Water Board sent a Notice to Comply with the Nitrate Control Program to nitrate permitted dischargers and Ag Coalitions that have Members within the boundaries of the eight identified Priority 2 basins.
11. Permitted dischargers of nitrate need to inform the Central Valley Water Board of their decision to either elect Pathway A or Pathway B. For Members of Ag Coalitions, the Ag Coalition informs the Central Valley Water Board of its choice on behalf of its members. For Members of the CVDRMP, the CVDRMP informs the Central Valley Water Board of its Members located in relevant groundwater basins/subbasins and their selection of Pathway B by virtue of participation in the CVDRMP.
12. A Management Zone is defined to mean “[a] discrete and generally hydrologically contiguous area for which permitted discharger(s) participating in the Management Zone collectively work to meet the goals of the SNMP and for which regulatory compliance is evaluated based on the permittees collective impact, including any alternative compliance programs, on a defined portion of the aquifer.
Where Management Zones cross groundwater basin or sub-basin boundaries, regulatory compliance is assessed separately for each basin or sub-basin. Management Zones must be approved by the Central Valley Water Board.”
13. A Management Zone, at its discretion, may include basins and subbasins that are identified as being non-prioritized in the Water Quality Control Plan for the Tulare Lake Basin.
14. For those permitted dischargers that received the December 29, 2023, Notice to Comply and voluntarily decide to participate in a Management Zone, which includes Ag Coalition and CVDRMP representatives on behalf of their Members, a Preliminary Management Zone Proposal and Early Action Plan must be submitted to the Central Valley Water Board no later than December 28, 2024. 222 of 263
3 15. Permitted dischargers voluntarily working together as a Management Zone are responsible for developing and submitting a Final Management Zone Proposal within 180 days after Central Valley Water Board review of the preliminary proposal.
16. Six months after the Central Valley Water Board’s Executive Officer accepts the Final Management Zone Proposal, the permittees, working voluntarily and collaboratively as a Management Zone, are responsible for developing and submitting a Management Zone Implementation Plan to the Central Valley Water Board.
17. Central components of the Central Valley Water Board’s Pathway B alternative compliance approach include the need for permittees to be responsible for a program that tests domestic drinking water wells, provide access to safe drinking water when a drinking water well exceeds the nitrate drinking water standard of 10 mg/L and identify long-term drinking water solutions.
18. Some permitted dischargers located within the Westside South and Poso Priority 2 groundwater basins/subbasins , some permitted dischargers located within the unprioritized Kern River groundwater basin/subbasin, and permitted dischargers located in the small portion of the Tulare Lake groundwater basin/subbasin that is located within the boundaries of the Dudley Ridge Water District and that also exists within the boundaries of the Westside Water Quality Coalition, have decided to voluntarily work collaboratively as a Management Zone.
19. The Kern Water Collaborative (KWC) is a nonprofit public benefit corporation created to maintain and improve the quality of life within Kern County’s three groundwater basins/subbasins (Westside South, Poso and Kern River) and within a small portion of Kings County’s Tulare Lake groundwater basin/subbasin that is located within the Dudley Ridge Water District Boundaries and that also exists within the boundaries of the Westside Water Quality Coalition’s boundaries (hereafter referred to as the Region) by providing groundwater testing and free drinking water for residents in the Region who are impacted by nitrate contamination. The KWC also seeks to improve the quality of life in the Region by identifying long-term drinking water needs for those in the Region that are impacted by nitrate contamination.
20. The Central Valley Water Board, at its sole discretion, may determine that permittees voluntarily contributing to KWC’s efforts to improve quality of life in the Region otherwise satisfies a permittees responsibilities and obligations under Pathway B of the Nitrate Control Program.
TERMS OF VOLUNTARY CONTRIBUTION AGREEMENT
The Parties agree as follows:
1. Contributor has voluntarily determined, on its own accord, to voluntarily participate and contribute to KWC’s program to improve quality of life in the Region.
2. As part of its efforts to improve quality of life in the Region, KWC agrees to make publicly available final reports and plans and data relied on for final reports and plans, except as limited by paragraph 12 of this Agreement, so that Contributor may use such information to meet its responsibilities and obligations under the Nitrate Control Program and as directed by the Central Valley Water Board.
3. Contributor understands that Contributors contributions will be used to support KWC in fulfilling its mission to maintain and improve the quality of life in the Region and to support KWC’s efforts to 223 of 263
4 provide access to safe drinking water for residents, and by engaging in activities with the goal of investigating, protecting, or enhancing the quality of groundwater drinking water supplies for residents in the Region.
4. Contributor will be notified annually of its requested financial contribution to support KWC’s efforts to improve quality of life in the Region.
5. The Parties agree to cooperate in seeking alternative funding sources for development and implementation of the program and the implementation thereof.
6. Contributor understands that compliance with the Nitrate Control Program is determined by the Central Valley Water Board and that the Central Valley Water Board may assess compliance separately for each groundwater basin/subbasin that is in the Region.
7. As part of its program, KWC will make available to the public, including the Central Valley Water Board, its final plans, reports and any data relied on to develop final plans and reports, except as otherwise limited by paragraph 12 of this Agreement.
8. Contributor may terminate this Agreement at any time upon giving a minimum of thirty (30) days’ express written notification to the KWC. Any contributions made to KWC by a withdrawing Contributor prior to giving notice of withdrawal belongs to KWC as a nonprofit public benefit corporation and are not reimbursable by KWC to the withdrawing Contributor.
9. Contributor understands that, upon request by the Central Valley Water Board, KWC will convey to the Central Valley Water Board those contributors that support KWC’s program and the identification of any former contributors that no longer support KWC’s program.
10. The Parties shall indemnify, defend, and hold harmless the other Party, its officers, directors, members, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out of or resulting from any claim of a third party arising out of or occurring in connection with a Party’s negligence, willful misconduct, or breach of this Agreement.
11. The Parties acknowledge that by contributing to KWC and supporting KWC’s programs, the Parties make no representations or admissions whatsoever with respect to nitrate levels and possible contamination in groundwater that may exist within the Region.
12. The Parties, along with other KWC contributors, agree to work cooperatively to develop and implement KWC’s mission to improve quality of life in the Region and shall not use information obtained through the development and implementation of KWC’s mission to cause material harm to the other Party to this Agreement or other contributors to the KWC.
13. To the extent allowed by applicable law and State Water Board Order WQ 2018-0002, if KWC receives or obtains access to certain confidential information associated with Groundwater Protection Formula, Value and Targets and Irrigation and Nitrogen Summary Report Data from irrigated agricultural coalitions subject to Order R5-2013-0120-09, Waste Discharge Requirements General Order for Growers within the Tulare Lake Basin Area that are Members of a Third Party Group, to assist in 224 of 263
5 development of KWC’s program, KWC will take all reasonable steps to maintain confidentiality of such data and information.
14. The Agreement shall be interpreted and enforced pursuant to the laws of the State of California. It is agreed that in the event of any litigation arising hereunder, the Parties hereto shall submit to the jurisdiction of any court of competent jurisdiction within the State of California, County of Kern.
15. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16. If any provision of the Agreement is found invalid or unenforceable, the balance of the Agreement shall remain in full force and effect.
17. The Agreement may be executed in counterparts with the same force and effect as if executed in one complete document by all Parties. The Parties agree that a photo-static or electronic copy of any signature is valid as an original copy of that signature.
18. This Agreement contains the entire agreement between the Parties with respect to the matters set forth in it. Any modifications, revisions, or changes to this Agreement must be made in writing and signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective on the date set forth above.
Date:
Date:
KERN WATER COLLABORATIVE:
By:
Signature of KWC Board Chair
David Halopoff
Print name of KWC Board Chair
By:
M. Scott Hurlbert, City Manager
Print name of authorized signer
M. Scott Hurlbert
CITY OF WASCO
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.
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
DATE: January 21, 2025
SUBJECT: Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute a Rental Agreement with Pinnacle Precast, Inc. for the use of a portion of the industrial property south of 6th Street between H Street and J Street.
Recommendation:
Staff recommends the City Council:
1) Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute a Rental Agreement with Pinnacle Precast, Inc. for the use of a portion of the industrial property south of 6th Street between H Street and J Street: and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15378, no environmental review is required.
Environmental Review:
The staff has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA guidelines because the proposed activity consists of a governmental fiscal/administrative activity which does not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Background:
The City owns approximately 23 acres at the site of the former farm labor camp, bounded by 6th Street, 9th Street, H Street, and J Street. An approximate 1-acre site at the southeast corner of the land is designated for a future City water well site. An additional southerly 6 acres is reserved for use by Caltrans and California High -Speed Rail Authority subject to CHSRA Agreement No. HSR22 -74, executed June 1, 2023. The remaining northerly 15 acres is available for uses compatible with its I-H (Heavy Industrial) zoning.
STAFF REPORT
City of Wasco
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Discussion:
Pinnacle Prestress, Inc. (successor to former Bethlehem Construction, Inc.) is a precast concrete component manufacturer operating in the City of Wasco with offices located at 425 J Street. Pinnacle is rapidly expanding its operations and is in active discussion with the City for a long-term lease/purchase of the northerly 15 acres described above. In the interim, Pinnacle has a short -term need to store certain of its equipment and materials away from its current site while grading and other improvement activities are in progress.
The company has proposed a month-to-month rental arrangement.
A final draft of the proposed rental agreement is included with this report. The basic terms are as follows:
• Rental of the premises is “as-is” with no city-provided improvements. • Rental term is month -to-month for approximately one (1) year, terminating December 31, 2025. Extension of the agreement is optional with written approval by both parties.
• The rental fee is $4,000 per month with an initial, partial month payment of $3,000.
This month-to-month arrangement will in all likelihood be replaced by the anticipated long-term lease/purchase agreement before the one -year term is completed. The proposed rental agreement benefits both parties by providing revenue for the City and accommodating Pinnacle’s need for short-term, off-site storage.
The entire Council has previously provided direction and authority for the City Manager to pursue negotiation and development of the long -term lease/sale agreement with Pinnacle. The City Council’s Real Estate Committee was consulted regarding this short- term rental proposal and unanimously recommended that the City Manager proceed with negotiation and development of the agreement.
Staff recommends the City Council authorize the City Manager to finalize and execute the Rental Agreement with Pinnacle Prestress, Inc. The drafted agreement was reviewed by the City Attorney and by Pinnacle Prestress, Inc.
Fiscal Impact:
Based upon the terms of the Rental Agreement, revenues in FY2024-2025 will be approximately $23,000, and revenues in FY 2025-2026 will be approximately $24,000.
Attachments:
1. Resolution
2. Rental Agreement
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RESOLUTION NO. 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO AUTHORIZING THE CITY MANAGER OR DESIGNEE TO FINALIZE AND EXECUTE RENTAL AGREEMENT NO. 2025- WITH PINNACLE PRESTRESS, INC. FOR A PORTION OF THE INDUSTRIAL PROPERTY SOUTH OF 6TH STREET BETWEEN H STREET AND J STREET.
WHEREAS, the City owns vacant land at the former farm labor camp site bounded by 6th Street, 9th Street, H Street, and J Street; and
WHEREAS, Pinnacle Prestress, Inc. (successor to former Bethlehem Construction, Inc.) is a precast concrete component manufacturer operating in the City of Wasco, is rapidly expanding its operations and is in active discussion with the City for long -term lease/purchase of the northerly approximate 15 acres described herein; and
WHEREAS, Pinnacle has a short -term need to store certain of its equipment and materials away from its current site while grading and other improvement activities are in progress; and
WHEREAS, Pinnacle has proposed, and the City is amenable to, an interim month-to- month rental arrangement; and
WHEREAS, The proposed rental agreement benefits both parties by providing revenue for the City and accommodating Pinnacle’s need for short -term, off-site storage; and
WHEREAS, the City Attorney and Pinnacle Prestress, Inc. have reviewed and approved the terms and conditions of the rental agreement, attached as Exhibit “A”.
NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or designee to finalize and execute a month-to- month Rental Agreement with Pinnacle Prestress, Inc., including extensions thereto, to permit the use of approximately 15-acres of vacant, heavy industrial land located south of 6 th Street between H Street and J Street, in the City of Wasco.
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I HEREBY CERTIFY that the foregoing Resolution No. 2025 - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on January 21, 2025, by the following vote:
COUNCIL MEMBERS: MEDINA, SALDAÑA, MARTINEZ, RAYA, REYNA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________
VALENTIN MEDINA,
MAYOR of the City of Wasco
Attest: _______________
__________________________________
MARIA O. MARTINEZ, CMC
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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RENTAL AGREEMENT
This agreement (the “Agreement”) is made and entered into this 17 th day of January, 2025, between the City of Wasco, a municipal corporation, hereinafter called " Landlord," and P innacle Prestress, Inc. hereinafter called "Tenant."
WITNESSETH
WHEREAS, Landlord is the owner of the real property described in Exhibit “A” attached hereto and by this reference made a part hereof (the “Premises”); and
WHEREAS, Tenant wishes to rent the Premises for the purpose of storing equipment and other materials to be used in development of an adjoining property and Landlord is agreeable thereto pursuant to the terms and conditions hereinafter described.
NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, it is mutually agreed by and between the parties hereto as follows:
1. DESCRIPTION:
Landlord hereby rents to Tenant and Tenant hereby hires from Landlord, the Premises on the terms and conditions hereinafter set forth.
2. TERMS:
The term of the Agreement shall be month-to-month for a period of one (1) year (the "Term"), commencing on January 17, 2025, and terminating on December 31, 2025 , unless extended in writing by the parties, or earlier terminated as hereinafter described.
3. RENT:
Tenant shall pay an initial partial month rental in the amount of $3,000.00 to Landlord in cash within 1 5 days of execution of this Agreement by all parties thereto. Thereafter, Tenant shall pay rental (the “Rent”) to Landlord in cash in advance on the first day of each month commencing February 1, 2025 in the amount of $4,000.00.
4. PERMITTED USE:
Tenant may use the Premises solely for the storage of equipment and other materials more particularly described in Exhibit “B” attached hereto and by this reference made a part hereof (the “Permitted Use”).
The Premises may only be used for the Permitted Use and no other use may be made of the Premises.
5. INSURANCE:
Tenant, at Tenant's sole cost and expense, shall maintain throughout the term of this Agreement (i) all Worker's Compensation Insurance where and in the amounts required by law, (ii) a bond in an amount acceptable to City and (iii) a Comprehensive General Public Liability Insurance Policy from a company approved by City for protection against liability to the public arising as an incident of Tenant's performance 230 of 263
hereunder in amounts not less than $1 million per occurrence and said pol icy shall be primary insurance naming City, its officers, councilpersons, employees, contractors, and representatives as additional insureds and affording City at least ten (10) days’ notice prior to cancellation or reduction of coverage. In the event any such policy shall lapse or be canceled, City may, at City's sole discretion, terminate this Agreement without further notice to Tenant. The Tenant shall provide the City with a Certificate of Insurance verifying the Tenant's compliance with the foregoing. This Agreement shall not be effective until City has received and approved the same.
6. TAXES. A SSESSMENTS AND LIENS:
Tenant agrees to pay, when due, all taxes, and assessments which may be levied against Tenant's possessory interest in the Premises and upon any product or personal property which Tenant causes to be placed, or maintained upon the Premises, and agrees to keep the Premises free from all liens and encumbrances by reason of the use of occupancy of the Premises by Tenant.
6. NO IMPROVEMENTS:
Except as provided herein, Tenant shall not make any alterations, additions, or improvements upon the Premises without the express prior written consent of Landlord, which consent shall be given at the sole and absolute discretion of Landlord. All alterations, additions, and improvements shall be done in a good and workman- like manner and diligently prosecuted to completion, and shall be performed and maintained in strict accord with all laws and ordinances relating thereto. Unless otherwise expressly agreed to by Landlord, any and all alteration, additions, and improvements shall remain on and be surrendered with the Premises upon the expiration or termination of this Agreement.
7. HAZARDOUS MATERIALS INDEMNITY:
Tenant hereby agrees no use, generation, storage or disposal of Hazardous Materials shall occur on the Premises; provided, however, that if Tenant should be default in its obligation hereunder and use, generate, store, or dispose of Hazardous Materials on the Premises, Tenant, at its sole expense, shall clean up, remediate, remove and restore the Premises to its condition prior to Tenant’s possession of the Premises and to the reasonable satisfaction of Landlord. In the event of Tenant’s default hereunder Tenant hereby agrees to indemnify and hold harmless Landlord and it's officers, councilmembers, employees, servants and agents from and against any and all claims, actions, losses, liabilities, damages, costs, attorney's fees and other expenses (A) including, without limitation, all foreseeable and all unforeseeable consequential damages, directly or indirectly arising out of the use, generation, storage or disposal of Hazardous Materials on the Premises, or arising out of the Premises, and (B) including, without limitation, the cost of any required or necessary plans, to the full extent that such action is attributable, directly or indirectly, to the presence, or disposal of Hazardous Materials on the Premises. As used in this Section Hazardous Materials means any flammable explosives, radioactive materials, asbestos, P.C.B.'s, hazardous waste, toxic substances of related materials, including, without limitation, substances defined as "hazardous substance", "hazardous materials" or "toxic substances" in the Comprehensive Environmental response, Compensation and Liability action on 1980 as amended, 42 U.S.C., Section 9601, et seq.; the Hazardous Materials Transportation act, 49 U.S.C., Section 1801, et seq.; the resource Conservation and Recovery Act, 42 U.S.C., Section 6901, et seq.; the Toxic Substance Control Act 15 U.S.C., Section 2601, et seq.; any other Federal, State, County, or local law applicable to the Premises, and in the rules and regulations adopted or promulgated under or pursuant to any of said laws. The provisions of this Section shall survive the expiration or termination of this Agreement 231 of 263
an
d shall relate back to all periods of Tenant's previous ownership or possession of the Premises.
8. WATER:
Tenant shall not use or remove any water from the Premises to any other location without express prior, written permission of the Landlord which may be given or denied in Landlord’s sole discretion.
9. UTILITIES:
All charges and assessments for or in connection with Tenant's use of the Premises including, without limitation, all utilities which may be furnished to or used on the Premises by Tenant, shall be paid by Tenant at Tenant's sole cost and expense.
10. MAINTENANCE:
Throughout the term of this Agreement Tenant shall, at Tenant's sole cost and expense, repair, replace, keep, and maintain the Premises in good order, condition, and repair. Tenant shall at Tenant's own expense, take all actions and precautions necessary for the care of the Premises including, but not limited to, irrigation, insect control, disease control, weed control, weed abatement in accordance with the Kern County Fire Department's annual Weed Abatement Program, rodent control, soil erosion control and any other items necessary for the use of the Premises. Tenant shall, at its sole cost and expense, keep any fences, irrigation systems or other improvements on or placed on the Premises in good repair and condition. Tenant shall repair any damage caused by vandalism including the prompt removal of any graffiti. Except as otherwise described in this Agreement, Landlord shall not be obligated to repair, replace, or maintain the Premises in any manner throughout the term of this Agreement. Landlord shall have the right to inspect the Premises to confirm accuracy of each report. Neither shall Landlord be obligated to perform any precautionary nor preventive measures with respect to the Premises, including, but not limited to, drainage and flood control measures. Should Landlord perform any of the foregoing, such services shall be at the sole discretion of Landlord, and the performance of such services shall not be construed as an obligation or warranty by Landlord of future ongoing performance of such services.
11. ASSIGNMENTS AND SUBLETTING:
Tenant shall not assign the Agreement, nor any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person (the agents and servants of Tenant excepted) to occupy or use the Premises, or any portion thereof, without the prior written consent of Landlord which may be given or denied at the sole discretion of Landlord. Consent to one assignment, subletting, occupation or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation, or use by another person. This Agreement shall not, nor shall any interest herein, be assignable, as to the interest of Tenant by operation of law, without the written consent of Landlord. Any assignment or subletting without such consent shall be void and shall, at the option of Landlord, terminate this Agreement.
12. INSOLVENCY OR BANKRUPTCY:
If Tenant shall be adjudged, bankrupt or insolvent this Agreement shall thereupon immediately terminate 232 of 263
a
nd the same shall not be treated as an asset of the Tenant under such adjudication, nor shall it pass under the control of any trustee or assignee by virtue of any process in bankruptcy or insolvency, or by execution or assignment for the benefit of creditors. If any such event occurs, this Agreement shall immediately become null and void and of no effect, and the Landlord may immediately retake possession of the Premises and all crops growing thereon.
13. INDEMNIFICATION AND HOLD HARMLESS:
Tenant hereby agrees to defend, indemnify and hold harmless the Landlord and its City Council Members, officers, employees, servants, and agents from and against all claims, actions, liabilities, losses, damages, costs, attorney's fees and other expenses arising out of any loss or damage to property or injury to or death of persons, resulting in any manner whatsoever, directly or indirectly, by any act or omission or use or occupancy of the Premises, by Tenant or any person claiming under or through Tenant. The provision of this section shall survive the expiration or termination of this Agreement.
14. PARTIES BOUND AND BENEFITTED:
The covenants and conditions herein contained shall apply to and bind all successors and assigns of the parties hereto.
15. NOTICES AND PAYMENTS:
Any notice to be given hereunder or at law to either party shall be deemed delivered when personally served on the party to be noticed or on the next business day following deposit of the notice with an overnight delivery service provided the overnight carrier's records confirm delivery, or when delivered by the United States mail, postage prepaid, registered or certified mail, return receipt requested with the date of signing (or refusal to sign) the return receipt deemed the date of service, or forty-eight (48) hours following deposit in the United States mail, postage prepaid, or when sent by confirmed facsimile transmission or when sent by electronic mail ("email"). The following shall be used in providing the foregoing notices:
LANDLORD: THE CITY OF WASCO
Attention: City Manager
764 E Street
Wasco, CA 93280
Fax: (661) 758-5411
Email: [email protected]
TENANT: Pinnacle Prestress, Inc.
425 J Street
Wasco, California 93280
Email: [email protected]
Either party may change its address by providing written notice to the other in the manner described herein.
16. PARTIAL INVALIDITY:
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If a
ny term, covenant, condition, or provision of this Agreement is found by a Court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect to the full extent allowed by law.
17. RIGHT TO TERMINATE AGREEMENT IN WHOLE OR IN PART:
Landlord may terminate this Agreement and retake possession of the entire Premises or any portion thereof, at any time by providing Tenant with written notice of such termination at least forty-five (45) days prior to the date of any such termination or, in the event Tenant is in default of any of its obligations hereunder, within twenty-four (24) hours prior written notice. Tenant hereby agrees to quit and surrender possession of the Premises at the termination of this Agreement and remove all equipment and materials placed on the Premises and return the Premises to its condition prior to the date of this Agreement at Tenant’s sole cost and expense and to the reasonable satisfaction of City.
18. MISCELLANEOUS :
(a). Each individual executing this Agreement represents and warrants that he or she is duly authorized to execute and deliver the Agreement on behalf of the Tenant, and this Agreement shall be binding upon Tenant in accordance with its terms.
(b). Landlord makes no warranties or representations as to the condition of the Premises or its suitability for the purposes for which the Tenant will use it. Tenant accepts the Premises "AS IS, WHERE IS, AND WITH ALL FAULTS" and hereby assumes the risk of use of the Premises and releases Landlord, its officers, councilmembers, employees, agents, and representatives from any and all claims relating to the condition of the Premises. Tenant represents and warrants that it has read and fully understands the provisions of Section 1542 of the Civil Code of California and waives and releases any right or benefit which Tenant has thereunder which Section reads as follows:
"A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party."
(c). T
his Agreement contains the entire agreement between the parties with regard to the subject matter herein and supersedes all prior oral and written agreements and understandings between the parties with respect thereto.
(d). If any action is commenced arising out of or relating to this Agreement, the prevailing party shall be entitled to its reasonable attorney's fees and actual costs.
(e). This Agreement may only be amended by a writing executed by all parties.
(f). This Agreement shall be governed by and construed in accordance with the laws of the State of California.
(g). Waiver by a party of any provision of this Agreement shall not be considered a continuing waiver or a waiver of any other provision, including the time for performance of any such provision.
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(h
). Landlord's remedies for a tenant default described herein are not exclusive but are cumulative and in addition to all available remedies under the law or in equity.
(i). Paragraph headings in this Agreement are used solely for convenience and shall be disregarded in the construction of this Agreement.
(j). On the last day of the Term, Tenant shall peaceably and quietly leave, surrender, and yield up to Landlord the Premises in as good condition and repair as existed at the commencement of Tenant's occupancy, reasonable use, and wear thereof excepted.
(k). Each party and their respective legal counsel have reviewed this Agreement and agree that this Agreement is the product of negotiations between the parties . This Agreement shall be interpreted without reference to the rule of interpretation of documents that uncertainties or ambiguities therein shall be determined against the party, so drafting the Agreement.
(l).
This Agreement may be executed in counterparts. The parties agree that an electronic or facsimile copy of this fully executed Agreement shall be as effective as the original for all purposes.
IN WITNESS WHEREOF, the parties have caused this Agreement , to be executed by their duly authorized representatives to be effective on the date first written above.
For: Pinnacle Prestress, Inc., Tenant
By: _______________________________
Brian Gardner, Area Manager
For: CITY OF WASCO, Landlord
_____________________________________
By: M. Scott Hurlbert, City Manager
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Exhibit “A”
“Premises”
The Rented Premises consists of the northerly approximate 920’ of combined APNs: 030-030-01, 030- 020-13, 030-020-14, and 030-020-15 in the City of Wasco. The Premises is bounded by G Street, 6th Street, and J Street on the west, north, and east, respectively and contains approximately 15 net acres.
The Premises excludes any road right-of-way contained within the parcels listed herein. The diagram below further depicts the Premises:
“Premises”
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Exhibit “B”
“Permitted Use”
Tenant may use the Premises solely for the storage of equipment and other materials directly related to the business operations conducted at their existing facility located at, or contiguous, to 425 J Street, Wasco, CA 93280. Equipment and materials may include:
Steel forms, finished concrete products, manufacturing related equipment, mobile equipment for loading and unloading and related material and products.
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STAFF REPORT
City of Wasco
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
DATE: January 21, 2025
SUBJECT: Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute a Professional Services Agreement with DiamondIT for Co - Managed and Infrastructure Managed IT Support Services , Subject to the City Manager and City Attorney Review.
_____________________________________________________________________________________ Recommendation:
Staff recommend the City Council:
1) Adopt a Resolution Authorizing the City Manager or Designee to Finalize and Execute a Professional Services Agreement with DiamondIT for Co-Managed and Infrastructure Managed IT Support Services, Subject to City Manager and the City Attorney Review, and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15378, no environmental review is required.
Environmental Review:
The staff has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA guidelines because the proposed activity consists of a governmental fiscal/administrative activity which does not result in a physical change in the environment; therefore, pursuant to Sec tion 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Background:
DiamondIT, based in Bakersfield, CA, has been working with the City of Wasco for the past seven years. Over this time, they have helped keep the City’s technology systems running and have provided support for various IT needs.
In March 2024, the City hired its first IT Manager and officially established an IT Department. This has allowed the City to handle routine IT tasks and respond to staff requests more efficiently. However, in April 2024, the City launched its own Police Department, which added new demands on the City’s IT infrastructure. With only two 238 of 263
people in the IT Department, managing the network and servers along with handling day-to-day operations has become increasingly challenging.
To help meet these growing needs, the City is looking to enter into a Co-Management agreement with DiamondIT. This agreement will give the IT Department the tools and resources they need to better manage and troubleshoot the City’s network and server systems. It will also provide additional support for larger projects and ensure the City’s infrastructure remains reliable and secure.
Discussion:
The proposed Co -Management and Infrastructure Managed IT Support Services Agreement aims to boost the City’s IT capabilities. With this agreement, the City’s IT staff will have access to advanced tools for managing and troubleshooting the network and server infrastructure. This will help them address technical issues more effectively while still having backup support from DiamondIT when needed.
Having this agreement in place will also relieve some of the pressure on the small IT team, allowing them to focus on day -to-day operations, support City staff, and spend additional time on strategic projects. This is especially important now, given the increased demands on the IT Department after launching the new Police Department. The agreement will ensure that the City’s infrastructure is managed properly, even with the additional workload.
Another major benefit of the agreement is cost savings. Currently , the City is paying separately for its Off -Site Backup solution and Security Monitoring system. Both of these services will now be included in the Co-Management agreement, saving the City about $30,000 this fiscal year. This makes the agreement not only a practical choice but also a financially smart one.
This partnership will help the City maintain a strong and secure IT environment while making sure resources are used efficiently.
Fiscal Impact:
The to tal cost for implementing the DiamondIT Co -Managed and Infrastructure Managed IT Support Services Agreement is $7,300.00 per month, totaling $87,600.00 for a 1-year term. This investment will be funded through the City’s IT budget allocation for fiscal year 2025. No budget action is required with approval of this item.
Attachments:
1. Resolution
2. Proposal
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RESOLUTION NO. 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO AUTHORIZING THE CITY
MANAGER OR DESIGNEE TO FINALIZE AND EXECUTE A PROFESSIONAL SERVICES AGREEMENT
WITH DIAMONDIT FOR CO-MANAGED AND INFRASTRUCTURE MANAGED IT SUPPORT
SERVICES, SUBJECT TO THE CITY MANAGER AND CITY ATTORNEY REVIEW WHEREAS, the City wishes to enter into a Professional Services Agreement with DiamondIT for Co-Managed and Infrastructure Managed IT Support Services; and WHEREAS, the City of Wasco has established its own IT Department as of March 2024 and has taken significant steps to handle daily IT support tasks and staff requests; and WHEREAS, the City launched its own Police Department in April 2024, creating increased demands on the City’s IT infrastructure; and
WHEREAS, the IT Department, currently staffed with two personnel, is unable to fully manage the growing needs of the City’s network and server infrastructure alongside day - to-day operations; and
WHEREAS, the Co-Management Agreement with DiamondIT will provide additional tools and resources to better configure and troubleshoot the City’s IT systems while maintaining critical support for larger projects; and
WHEREAS, this agreement includes Off -Site Backup and Security Monitoring services, which will streamline costs and save the Ci ty approximately $30,000 for the fiscal year compared to the current separate billing for these services; and WHEREAS, the proposed agreement has been reviewed by staff and is determined to meet the City’s IT needs while providing financial efficiencies and operational support; and WHEREAS, the Agreement shall be subject to review and approval as to legal form by the City Attorney; and
WHEREAS, the Agreement shall not be valid unless and until so approved by the City Attorney and executed by the City Manager or designee.
NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or designee to finalize and execute a Professional Services Agreement with DiamondIT for Co -Managed and Infrastructure Managed IT Support Services.
SECTION 2: The Agreement, as attached hereto as Exhibit “A,” shall not be valid unless and until so approved by the City Attorney and executed by the City Manager or designee.
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I HEREBY CERTIFY that the foregoing Resolution No. 2025 - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on January 25, 2025, by the following vote:
COUNCIL MEMBERS: MEDINA, SALDAÑA, MARTINEZ, RAYA, REYNA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________________
VALENTIN MEDINA
MAYOR of the City of Wasco
Attest: ________________________
__________________________
MARIA O. MARTINEZ, CMC
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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We have prepared a quote for you
DiamondIT Support Agreement -CoManaged /
Infrastrucutre Managed IT Support Services 1 Year
Quote # 007231
Version 3
Prepared for:
City of Wasco
Scott Hurlbert
[email protected]
EXHIBIT "A"
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
Wednesday, January 15, 2025
City of Wasco
Scott Hurlbert
746 8th St.
Wasco, CA 93280
[email protected]
Dear Scott,
I have prepared a proposal to upgrade the current SecureCentric support agreement for the City of Wasco to DiamondIT's Co-Manage and Infrastructure Managed Services. As discussed, this initial 1-year agreement includes the discounts typically offered for a 3-year commitment.
Upon renewal, the City has the option to either renew for 3 years to maintain these discounts or choose a 1-year renewal at a different pricing structure with fewer discounts.
Services will include following:
This Co Managed and Infrastructure Managed Support service is priced based on the number of; Workstations, Servers, and Networking devices (Switches, Routers, Access Points…etc.) in your environment. Our records show you have:
Page: 2 of 10Quote #007231 v3
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
Users - 95
Workstations - up to 69
Servers - up to 16
Network Elements - up to 26
All monthly pricing in this agreement is based on the minimum number of devices mentioned for one year. However, workstations, servers, and networking devices can be added to the total count at a time. For more information, refer to the Additional Service Rates in the Service Attachment.
Please note that the managed support services included in this agreement apply only to devices included in this agreement. Any item not listed will be supported on a best-effort basis at prevailing out-of-scope rates.
There may be some discoveries during on-boarding that will need to be addressed as projects outside this agreement's scope. These projects will be identified and discussed to determine how you want to move forward. We will provide you with detailed recommendations for remediation and upgrades after completing the on-boarding process.
Upon receipt of this signed agreement by an authorized agent of your organization accepting the proposed services, terms, and conditions of this agreement, an invoice will be sent for on-boarding fees and the first month's services. Our on-boarding team will contact you with details and schedule kickoff meetings to discuss the process.
Please feel free to ask me any questions about the information we have provided. We appreciate the opportunity to serve you and look forward to working with you.
Michael Leftwich
VP/GM
DiamondIT
Page: 3 of 10Quote #007231 v3
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
Services Include
DiamondIT's Co-Managed/Infrastructure Managed Support program is a proactive IT Support system designed to provide IT management and security tools while also proactively managing your computer server and networking infrastructure. In most cases, your computer server and network needs are resolved before you and your end users know there is an issue. Your support team will monitor and maintain your IT environment 24/7 and, if necessary, will notify you of IT-related matters that require your attention. This support system allows you to focus on your business while your IT team focuses on the IT needs of your business.
Your team:
You will be assigned a Virtual Chief Information Officer (vCIO), Technical Alignment Specialist (TAS), Customer Success Manager (CSM), and your IT Support team.
vCIO
The vCIO serves as your Chief Technology Officer. Your assigned vCIO is an IT Engineer with years of experience in the IT field. The vCIO will meet with you regularly to discuss your IT environment; more importantly, your vCIO will ensure your IT environment meets your business needs. The CIO's focus is to understand the needs and goals of your business and strategically implement the IT services and resources designed to meet those needs and goals.
TAS
Your TAS will maintain the standards and compliance requirements of your IT environment. This person will also perform regular audits of your IT network. The TAS will work closely with your vCIO to implement necessary changes to the network and communicate the network's needs that require your direction.
CSM
The CSM is responsible for Customer Satisfaction. Your CSM will contact you regularly to monitor your satisfaction with the services provided by your DiamondIT team and ensure any questions or concerns you may have regarding the IT support services provided to you are addressed and resolved.
Your IT Support Team
DiamondIT's support team is comprised of; DiamondIT's Dispatchers, Help Desk technicians, System Engineers, and Network Support Engineers. Your team will monitor your computer environment and proactively address issues as they arise. Requests for support from your organization will be ticketed and dispatched to the appropriate support team member, who will respond to and resolve your request.
Diamond IT On boarding Program for Managed Services:
Scope of Work
The following lists includes the tasks associated with the upgrade to your Fully Managed IT Support agreement:
Documentation of existing environment and validation of existing documentation Transfer of process knowledge and documentation thereof Completion of a responsibilities RASCI matrix for clear lines of communication and expectations Completion of tools rollout for supportability
Setup internal systems for ongoing strategic support
Document and validate items that were previously outside of Diamond IT support matrix Page: 4 of 10Quote #007231 v3
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
Managed Agreement Monthly Service - 1 Year Agreement
Description Recurring Price Qty Ext. Recurring Ext. Price DiamondIT Co Manage / Infrastructure Support
Agreement
1 Co-Managed and Infrastructure Managed IT
Services
1 Monthly Subtotal: $7,300.00
Subtotal: $7,300.00
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
DiamondIT Support Agreement -CoManaged / Infrastrucutre Managed IT Support Services 1 Year
Prepared by: Prepared for: Quote Information:
DiamondIT City of Wasco Quote #: 007231
Michael Leftwich
(661) 473-7667
Fax (661) 833-5608
[email protected]
746 8th St.
Wasco, CA 93280
Scott Hurlbert
(661) 758-7214
[email protected]
Version: 3
Delivery Date: 01/15/2025
Expiration Date: 02/15/2025
Quote Summary
Description Amount
Managed Agreement Monthly Service - 1 Year Agreement $7,300.00 Total: $7,300.00
Recurring Monthly Expenses Summary
Description Amount
Managed Agreement Monthly Service - 1 Year Agreement $7,300.00 Monthly Total: $7,300.00
Contract Summary
SERVICE ATTACHMENT
This Service Attachment (“SA”) is entered by and between the Parties pursuant to the Master Services Agreement signed by the Parties (the “Agreement”). By the Parties signature hereto, this SA becomes a part of and subject to the terms of the Agreement. Defined terms in this SA shall have the meanings set forth in the Agreement unless otherwise defined herein. This SA shall become effective as of March 1, 2025 (“SA Effective Date”) and all services will go active once on-boarding is completed.
1. INFRASTRUCTURE MANAGED SERVICES: During the SA Term and pursuant to the Agreement, Diamond IT shall provide the following technical and support services (“Managed Services”):
a. Technology support services from 8:00am to 5:00pm for Customer’s network devices and server equipment, excluding weekends and holidays. Technical support shall be provided remotely unless on-site support becomes necessary as determined by Diamond IT
b. Devices included:
i. Network Devices (Firewall, Router, Switch, Wireless Controller) – up to 13 ii. Servers – up to 16
iii. Wireless Access Points – up to 13
iv. Multi factor Authentication Platform License for Secure Remote Access – (Not included) c. Twenty-four (24) hour remote network monitoring of Customer network and server infrastructure d. Advanced Server Backup with offsite retention up to 1TB per server for 16 Servers Page: 6 of 10Quote #007231 v3
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(661) 833-5600
Contract Summary
e. Status reports of systems and support issues upon request f. Guidance on all hardware/software acquisitions
g. Review and planning meetings with Customer management or Designated Authority h. Inform Customer of any activity of Diamond IT that may impact the Covered Equipment, network or server infrastructure. i. Strategic IT Planning and vCIO Services
j. Quarterly Customer Business and Technology Reviews
k. Network Asset and Life cycle management and planning
2. CO-MANAGED SERVICES: During the SA Term and pursuant to the Agreement, Diamond IT shall provide the following technical and support services (“Managed Services”)
a. Shared tooling for client environment as agreed upon. Diamond IT will deploy tools for use by client staff. Diamond IT will be responsible for tool uptime and back end management as well as initial configuration. b. Tools support services from 8:00am to 5:00pm for deployed tools (section i), excluding weekends and holidays. Technical support shall be provided remotely unless on-site support becomes necessary as determined by Diamond IT c. Diamond IT will manage the Security Training and Phishing Testing d. User is defined in this agreement and for billing purposes as a licensed Office 365 user. e. Diamond will configure alerts to go directly to client systems/technical staff for alerts associated to deployed services in Section 2(i).
f. Diamond IT is not supporting the end user devices as part of this agreement. g. Device / User Counts for initial deployments in this SA:
i. Workstations - 65
ii. Users – 95
h. Increase to User or Workstation counts will increment up by increase amount counts listed in section(i) below for billing purposes.
i. Diamond IT will be providing the following tools to client:
i. Remote Monitoring and Management – up to 69 devices
ii. Endpoint Detection and Remediation Software – up to 69 devices iii. Microsoft Office 365 Backup – up to 95 users
iv. Multi Factor Authentication Platform – up to 95 users v. Security Training and Monthly/Quarterly Phishing Testing – up to 95 users vi. Dark web monitoring for domains/users – up to 3 domains vii. Email Security / Spam Filtering – up to 95 users
viii. DMARC Email Security Monitoring and Reporting – up to 3 Email Domains
3. CUSTOMER LOCATION(S):
a. City Hall - 746, 8th Street, Wasco CA 93280
b. Finance - 764 E Street, Wasco CA 93280
c. Court House / Training rm - 810 8th Street, Wasco CA 93280 d. Public Works Mechanic site - 845 E Street, Wasco CA 93280 e. Public Works - 801 8th St, Wasco CA 93280
f. Pump Station Central -
g. Pump Station Poplar - 1718-1998 Poplar Ave, Wasco 93280 h. Pump Station - Valley Rose - Hwy 46 / Valley Rose
i. Wasco Animal Control - 5409 7th Street, Wasco CA 93280 j. Waste Water 5410 - 7th Street, Wasco 93280
4. CUSTOMER RESPONSIBILITIES Customer acknowledges and agrees to perform and/or provide the following to Diamond IT (“Customer Responsibilities”):
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
Contract Summary
a. A primary point of contact for all issues with escalation (and after hours) phone numbers b. High-speed broadband Internet access to all supported sites c. Prior written approval of Diamond IT before any technical changes are implemented or network administrator access is allowed by Customer or any other third party
d. To purchase – from Diamond IT or other organization:
i. Current virus and malware protection licenses and maintenance ii. Server hardware warranty maintenance agreements with server manufacturer iii. Network infrastructure hardware and support maintenance agreements with manufacturer(s) iv. Desktop, Laptop, and Workstation hardware and warranty protections with manufacturer(s) v. Support agreements for all non-standard software applications (as defined below in Section 6) vi. Legal licenses for all software
e. Payment for all Services, including Additional Services and/or any services rendered by Diamond IT for Customer in response to the non-performance of any Customer Responsibilities f. Notification to Diamond IT of any pending company changes that affect Customer technology; g. Notification to Diamond IT of any troubleshooting performed by Customer prior to the provision of any Services
5. ADDITIONAL SERVICES AND RATES Diamond IT may provide at the written request of the Customer the following additional services (the “Additional Services”), which shall be billed to the Customer at the rates set forth in Section 7(C) below. a. Services rendered at sites other than those specified in Section 2 unless otherwise agreed to by Diamond IT b. Projects, including but not limited to: new equipment installations, new office startup or relocation, regulatory changes, network reconfiguration, evaluations and implementation of new applications/ installations, strategic planning projects, and significant moves of existing technology
c. Non-business products, services or activities, including, but not limited to: non-business web surfing, music libraries, radio streams, weather apps, home/personal email
d. Desk Phones, Handsets, Soft Phone and/or tablet support outside iPhone or Android OS phones/tablets e. Printer hardware maintenance or repair
f. Data recovery or operating system rebuild, either of which is due to a successful “willful act” attack or cyber security event on Customer of any kind, whether internal or external. This includes, but is not limited to, break-ins, hacking, network breach, ransomware, phishing, social engineering, viruses and malware, deletion or encryption of files, hardware damage and business damage due to a willful attack. Data recovery, operating system rebuilds or network forensics and engineering shall be billable at rates established in Additional Services Rates (Section 8) below g. Service failures that result from the actions or inactions of Customer contrary to Diamond IT recommendations h. Emergency responses or services provided outside the times designated in Section 1(a) i. Customer software that is not identified in Section 6 below j. Access Control Systems/Hardware
k. Camera Systems and associated hardware
l. Emergency Service can be defined as client requested services outside of basic support such as, but not limited to, requesting onsite resources with less than 48 hours notice and determined not necessary by Diamond IT, after hours calls for basic support at client request.
m. After Hours service can be defined as any service performed by client request or determined need outside of business hours (section 1(a)). Work that Diamond IT decides to perform outside of business hours for reasons that Diamond IT deems necessary will not be billed at these rates.
6. NON-STANDARD SOFTWARE/HARDWARE: A software update and/or a technical support maintenance agreement with the manufacturer or their authorized representative shall be required for the products listed below. If an ongoing or annual support agreement is not in place, Customer agrees to pay manufacturer or their authorized representative for support on Diamond IT Service’s behalf should it become necessary for the following products:
a.
7. SA TERM:
a. Initial Term: The initial term (“Initial Term”) of this SA shall commence on the SA Effective Date and continue for a period of Page: 8 of 10Quote #007231 v3
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Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
Contract Summary
thirty-six (36) months thereafter.
b. Renewal Term: Unless Customer provides Diamond IT sixty (60) days written notice prior to the end of the Initial Term (or any Renewal Term) that the Customer intends not to renew this SA, this SA shall be deemed renewed for the number of months stated in Section 7(a) above, subject, however, to Diamond IT IT Service’s right not to agree to such Renewal Term which is communicated to the Customer in writing prior to or no later than thirty (30) days after the date which such Renewal Term commences (the Initial Term and each subsequent Renewal Term, collectively the “SA Term”).
8. PAYMENT AND MODIFICATION
a. Monthly Rate: Customer shall initially pay to Diamond IT monthly payment installments in the amount of $7,300.00 the “Monthly Rate”), with the first payment being due on the SA Effective Date. Annual increases of the Monthly Rate or any rate in Section 8(c) below shall not exceed 10% (“Annual Increase”). The minimum Customer rate for this Service Attachment will be the stated "Monthly Rate" for the course of this agreement. Annual increase will be applied every January 1. b. Additional Fees:
i. All late payments may be subject to a penalty fee of 5% per month ii. Should third-party vendor support charges be required in order to resolve any issues, these will be billed to the Customer after first receiving the Customer’s authorization to incur them. iii. Any credit card payments shall be subject to a 5% processing fee. c. Additional Service Rates: Additional employees or equipment may be added for an additional monthly fee of:
i. Additional Employee/User over Section 2(g)(ii) $35/month ii. Additional Workstation over Section 2(g)(i) $25/month iii. Additional Servers over Section 1(b)(ii) $200 per month iv. Additional Network Device over Section 1(b)(i) $75 per month v. Additional Access Point over Section 1(b)(iii) $25 per month vi. Additional Physical location over Section (3) $1000 (one time setup /onboarding fee) vii. Additional RMM over Section 2(i)(i) $4 per month viii. Additional Endpoint Protection license over Section (d)(i) $4.50/month ix. Additional Microsoft 365 Backup over Section 2(i)(iii) $5/month x. Additional Multifactor Management over Section 2(i)(iv) $5/month xi. Additional Security Training / Phishing over Section 2(i)(v) $4.50/month xii. Additional Dark Web Monitoring domain over Section 2(i)(vi) $55/month xiii. Additional Email Security/Spam filter over Section 2(i)(vii) $4.50/month xiv. Additional DMARC Email Domain over Section 2(i)(vii) $30/month xv. Desktop, Server, and Network Support outside this SA $185/hour xvi. Data Recovery or Security Incident Response $250/hour xvii. Emergency or After-Hours Service $277.50/hour
9. ADDITIONAL PROVISIONS
a. By signing this agreement, I have read, understand and have accepted the following:
i. DiamondIT Master Service Agreement Terms and Conditions (MSA): https://diamondit.pro/MasterServiceAgreement ii. DiamondIT Privacy Policy: https://diamondit.pro/PrivacyPolicy iii. DiamondIT Microsoft Cloud Services Terms and Conditions: https://diamondit.pro/CloudTerms iv. DiamondIT Microsoft Online Services Terms and Conditions: https://diamondit.pro/MicrosoftTerms The Parties agree this Service Attachment to be executed and effective as of the SA Effective Date
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8701 Swigert Court
Bakersfield, CA 93311
www.diamondit.pro
(661) 833-5600
DiamondIT City of Wasco
Signature:
Name: Michael Leftwich
Title: VP/GM
Date: 01/15/2025
Signature:
Name: Scott Hurlbert
Date:
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.
TO: Honorable Mayor and Council Members
FROM: M. Scott Hurlbert, City Manager
DATE: January 21, 2025
SUBJECT: Adopt a Resolution Authorizing the City Manager or Designee to complete the purchase of Assessor's Parcel Nos. 030 -081-01 & 02 from Denmar, LLC, including execution of required escrow documents and make all budget appropriations and payments necessary to satisfy escrow fees and the purchase cost.
Recommendation:
Staff recommends the City Council:
1) Adopt a Resolution Authorizing the City Manager or Designee to complete the purchase of Assessor's Parcel Nos. 030 -081-01 & 02 from Denmar, LLC, including execution of required escrow documents and make all budget appropriations and payments necessary to satisfy escrow fees and the purchase cost: and
2) Find that this action is not a project as defined under the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15378, no environmental review is required.
Environmental Review:
The staff has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) and has determined that the activity is not a “Project” as defined under Section 15378 of the State CEQA guidelines because the proposed activity consists of a governmental fiscal/administrative activity which does not result in a physical change in the environment; theref ore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
Discussion:
The City Council has identified investment in the maintenance, improvement, and replacement of City Facilities as a key strategic priority. The buildings which house City Staff in the City Hall, Finance, Community Development, and Police Department are well over 50 years old, on average. These facilities have become a maintenance burden and are very inefficient compared to more modern facilities. In addition, the space provided has become insufficient as staff numbers grow, particularly in the newly formed Police Department.
STAFF REPORT
City of Wasco
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As a result, Council has directed staff to locate potential sites for replacement facilities, beginning with the Police Department. The parcels directly south of the existing City Hall bounded by 8 th Street, G Street, 9 th Street, and F Street/Hwy 43, were identified as a potential site for a Municipal Campus. Staff engaged with the current owner of the parcels, Denmar LLC, and over the course of the last year, the parties have negotiated and executed a purchase and sale agreement.
The City Council previously authorized the City Manager to proceed with purchase of the properties, pursuant to the terms of the attached Purchase and Sale Agreement (Exhibit “A”) for a sale price of $1,100,000.00.
Staff recommends the City Council authorize the City Manager or designee to execute any necessary Escrow documents, appropriations, and p ayments to complete the purchase and close escrow.
Fiscal Impact:
Funding for the purchase of the property is supported by approximately $480,000 in remaining ARPA funds, a $25,000 deposit from the General Fund, and the balance from the $5M State of Ca lifornia earmark designated for Wasco Police Department development. The Adopted CIP – Project #24-036 outlines the funding structure for this project. Sufficient funds are available to complete this transaction.
Attachments:
1. Resolution
2. Exhibit “A” - Executed Purchase and Sale Agreement
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RESOLUTION NO. 2025 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WASCO AUTHORIZING THE CITY MANAGER OR DESIGNEE TO COMPLETE THE PURCHASE OF ASSESSOR'S PARCEL NOS. 030- 081-01 & 02 FROM DENMAR, LLC, FOR A PURCHASE PRICE OF $1,100,000.00.
WHEREAS, the Wasco City Council has established a strategic priority to maintain, improve, and replace City facilities to enable and enhance delivery of services provided to its citizens; and
WHEREAS, the City has identified a pressing need to replace the facility currently occupied by the newly formed Wasco Police Department , adopted CIP Project # 24-036, and identified land suitable for that purpose; and
WHEREAS, the City Council has previously authorized the City Manager to negotiate terms of and execute a Purchase and Sale agreement with the current owner, Denmar LLC, and to open an Escrow Account to facilitate the purchase; and WHEREAS, the City Council now wishes to finalize the purchase of the parcels by authorizing the City Manager to execute any required Escrow documents and appropriate and deposit into the Escrow account any funds necessary to complete the transaction and close Escrow; and
WHEREAS, all Escrow documents and transactions shall be subject to review and approval as to legal form by the City Attorney.
NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Wasco as follows:
SECTION 1: Authorizes the City Manager or Designee to complete the purchase of Assessor's Parcel Nos. 030-081-01 & 02 from Denmar, LLC, including execution of all required Escrow documents and to make all budget appropriations and payments necessary to satisfy escrow fees and the purchase cost.
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I HEREBY CERTIFY that the foregoing Resolution No. 2025 - was passed and adopted by the Council of the City of Wasco at a regular meeting thereof held on January 25, 2025, by the following vote:
COUNCIL MEMBERS: MEDINA, SALDAÑA, MARTINEZ, RAYA, REYNA AYES:
NOES:
ABSTAIN:
ABSENT:
__________________________________
VALENTIN MEDINA
MAYOR of the City of Wasco
Attest: ________________________
__________________________
MARIA O. MARTINEZ, CMC
CITY CLERK and Ex Officio Clerk of
the Council of the City of Wasco
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