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103-Agreement.pdfASSOCIATION OF BAY AREA GOVERNMENTS Agreement for Local Agency Participation in Grant -Funded Bay Area -wide Trash Capture Demonstration Project This agreement is made and entered into effective , 2010, by and between the Association of Bay Area Governments (ABAG), a public entity formed under the California Joint Exercise of Powers Act, Government Code Sections 6500, et seq. and the City of Cupertino (Cupertino), a City. Recitals A. ABAG and the California State Water Resources Control Board (State Water Board) have entered into Project Finance Agreement No. 09-823-550 (PFA) in the amount of $5,000,000 (five million dollars) for Clean Water State Revolving Fund Project No. C-06-6441-110, the Bay Area -wide Trash Capture Demonstration Project (Project). Funding is provided by the federal American Recovery and Reinvestment Act of 2009 (ARRA). The PFA and amendments are located at http://www.bayareatrashtracker.org/content/contract-resources B. The Project is comprised of the following elements: acquisition of trash capture devices (TCDs), provision and/or installation of TCDs in existing storm drainage infrastructure, maintenance of installed TCDs and monitoring of installed TCDs. C. Cupertino is one of many local government entities that are eligible to participate in the Project (collectively, "Potential Participants") by facilitating installation of the TCDs in its existing storm drainage infrastructure and by maintaining and monitoring installed TCDs, as set forth in the attached Exhibit A, Scope of Work, which is incorporated herein by this reference. D. ABAG issued Requests for Proposals for small capacity trash capture devices (small TCDs) and for high flow capacity trash capture devices (large TCDs) (collectively, "TCDs") and assembled a panel of vendors for devices in both categories that can meet minimum trash capture permit requirements when properly installed and maintained. E. ABAG has contracted with each vendor on the panel to furnish, and if requested, install small TCDs selected by Participating Entities [as defined in section 2(a)]; and to provide large TCDs; and for ABAG to pay the cost thereof. F. ABAG has made an initial determination that each Potential Participant will have access to a portion of the funds available under the PFA (PFA Funds) for the acquisition and installation of TCDs, all as shown in Exhibit A- 1. ABAG and Cupertino mutually agree as follows: Initial Allocation and Current Balances. Cupertino has access to $43,123 (forty-three thousand, one hundred and twenty-three dollars) in PFA Funds to acquire and install TCDs. PFA Funds may only be used to fund or defray the costs of acquiring and/or installing TCDs from the panel of vendors listed in Exhibit A-2 (see section 3). ABAG will calculate the amount of PFA Funds to which Cupertino has access on any given day by reducing the initial allocation by the amount encumbered by TCDs on order (see section 3) and amounts paid for accepted TCDs. This information will be posted at http://www.bayareatrashtracker.org/content/contract- resources and will be adjusted on an as -needed basis. 2. Reallocations. (a) Cupertino acknowledges that the success of the Project depends on maximum use of the PFA Funds and that greater use may be achieved by reallocating access to PFA Funds among the Potential Participants that have executed an "Agreement for Local Agency Participation Grant Funded SF Bay Area Trash Capture Demonstration Project" by January 1, 2011 (Participating Entities). All reallocations will be reflected in the current balance (see section 1). (b) All of the initial allocations for any Potential Participants that have not executed an "Agreement for Local Agency Participation Grant Funded SF Bay Area Trash Capture Demonstration Project" by January 1, 2011 will be reallocated among Participating Entities by ABAG at its sole discretion after soliciting input from the Project's Technical Advisory Group. Reallocations under this provision will be implemented by written notice from ABAG to each Participating Entity that is given access to the additional PFA Funds. Cupertino agrees that any written notice(s) it receives pursuant to this section will automatically amend the allocation in section 1 in accordance with its terms. (c) ABAG may reallocate access to any unused PFA Funds during the period from January 1, 2011 to March 1, 2011 as follows: ABAG will provide written notice of the proposed reallocation to the affected Participating Entities no less than 30 (thirty) calendar days prior to the date that ABAG intends to implement the reallocation. The affected Participating Entities and ABAG may negotiate a different reallocation and implement it by a writing executed by the authorized representatives of the affected Participating Entities and ABAG. If the affected Participating Entities and ABAG cannot agree on a different reallocation, ABAG may (i) unilaterally implement the reallocation described in the notice on the date set forth therein or (ii) rescind the notice. Cupertino agrees that ABAG may unilaterally amend Cupertino's allocation in accordance with this subsection (c). Ordering TCDs. ABAG has published a document that lists and describes all available TCDs, which is labeled Exhibit A-2 and is online for downloading at http://www.bayareatrashtracker.org/content/trash- capture-devices, and may be amended from time to time by ABAG. To order a TCD, Cupertino must submit to ABAG a completed Purchase Order signed by representatives of Cupertino and the vendor of the TCD in the form attached to this Agreement as Exhibit A-3. Cupertino is responsible for negotiating and reaching agreement with the vendor on the additional information required by the Purchase Order, and such other additional terms and conditions as Cupertino and the vendor deem necessary, including without limitation, location of installation, date of delivery or installation, per unit cost, design, engineering and other technical collaboration or assistance. Cupertino is responsible for coordinating its ordering of TCDs in a manner that entitles it, alone or in conjunction with others, to discounted prices for TCDs. The Purchase Order is not effective until approved by ABAG. ABAG may unilaterally amend Exhibit A-2 from time to time to reflect changes in TCD availability or specifications or vendor information. 4. Project Sites. Cupertino must locate all TCDs acquired under this agreement at locations (Project Sites) that meet the requirements set forth in Exhibits D-1 through D=4, inclusive (Certifications). Accepting TCDs. Upon Cupertino's acceptance of a TCD, ABAG will pay the vendor of the TCD. Cupertino may accept a TCD only by submitting to ABAG a completed Notice of Acceptance executed by Cupertino and the vendor. Payment will be made after ABAG approves the Notice of Acceptance, attached to this Agreement as Exhibit A-4. The Notice of Acceptance Form is available online for downloading at hLp://www.bayareatrashtracker.org/content/contract-resources and may be amended from time to time by ABAG. 6. Deadline for TCD Installation. ABAG will not approve any Notices of Acceptance submitted for any TCD installed after November 1, 2012. Cupertino acknowledges and accepts the risks described in section 9 that may result from Cupertino's failure to comply with the installation deadline. 7. Vendor Contracts. Cupertino's right to order and acquire a TCD is based on its status as a third party beneficiary of ABAG's contract with the vendor of the TCD. The current version of ABAG's contract with each vendor is online at http://www.bayareatrashtracker.org/content/trash-capture-devices 8. Transfer of Rights to TCDs. Immediately upon ABAG's approval of the Notice of Acceptance and payment to the vendor for a TCD, all rights to said TCD, including but not limited to title, warranties, and protection from patent infringement claims, are transferred to Cupertino. 2 9. Fabrication and Installation Risk. If for any reason, Cupertino and the vendor of the TCD do not submit a Notice of Acceptance, or ABAG disapproves the Notice of Acceptance for a TCD, agrees that if there is any liability to the vendor for amounts owed for the TCD or for any damages, Cupertino, and not ABAG, will be solely liable to the vendor for any amounts owed or damages caused thereby. 10. Operation and Maintenance of TCD. Cupertino agrees to provide for operation and maintenance of each TCD acquired under this agreement throughout the useful life of the TCD (not to exceed 25 years). 11. Monitoring. See Exhibit A, Scope of Work, for monitoring requirements. 12. Hold Harmless. Contractor shall hold harmless, defend and indemnify ABAG, its directors, officers, agents and employees from and against any and all liability, claims, losses, or damages arising from all acts or omissions to act of Contractor or its officers, agents, employees or subcontractors in rendering services under this agreement, excepting liability, claims, losses or damages based solely on ABAG's acts or omissions. 13. Entire Agreement. This agreement and its attachment are entire as to the activities covered by it. This agreement supersedes any and all other agreements either oral or in writing between ABAG and Cupertino with respect to the subject matter hereof. ABAG and Cupertino acknowledge that no representations, inducements, promises or agreements, orally or otherwise, have been made to any parry, or anyone acting on behalf of any parry, which are not embodied herein, and that no other contracts, statement, or promise not contained in this agreement shall be valid or binding. 14. Conflict of Interest. Cupertino covenants that presently there is no interest, and none shall be acquired, direct or indirect, which conflicts in any manner or degree with its performance as required under this agreement. Cupertino further covenants that in the performance of this agreement, no person having any interest shall be employed by it. 15. Notices. Any notices, demands, or elections required or permitted to be given or made hereunder shall be in writing, shall be personally delivered or mailed by certified or registered mail, return receipt requested, addressed to the Authorized Representatives of the respective parties as follows: ABAG San Francisco Estuary Partnership 1515 Clay Street, Suite 1400 Oakland, CA 94612 Attn.: Janet Cox, Contract Manager Phone: (510) 622-2334 Email: jwcox(cr�,waterboards.ca. oovv City/County City of Cupertino 10300 Torre Ave Cupertino, CA 95014 Attention: Cheri Donnelly Phone: 408.777.3242 Email: cherid(a(cupertino.org 3 16. Binding on Heirs. This agreement shall be binding upon the heirs, successors, assigns, or transferees, of ABAG or Cupertino, as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this agreement other than as provided above. 17. Other Contract Provisions. This Contract shall be subject to the Standard Contract Provisions and Federal ARRA and State Water Resources Control Board Contract Provisions as set forth in Exhibits B and C respectively, which are incorporated herein by this reference. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below. Dated: City: By: (Print name and title) (Tax ID #) Dated: ASSOCIATION OF BAY AREA GOVERNMENTS: Ezra Rapport Executive Director Approved as to legal form and content: Kenneth K. Moy, Legal Counsel Association of Bay Area Governments Approved as to legal form and content: Print Name & Title City of Cupertino 4 EXHIBIT A SCOPE OF WORK The Bay Area -Wide Trash Capture Demonstration Project is funded by the State Water Resources Control Board Clean Water State Revolving Fund (CWSRF) with funds from the American Reinvestment and Recovery Act (ARRA). The San Francisco Estuary Partnership (SFEP), a project of the Association of Bay Area Governments (ABAG) will administer the project, which will retrofit and/or improve storm drainage infrastructure in order to address trash pollution in San Francisco Bay and local creeks. The project will demonstrate to municipalities and the public that trash can be managed, and that reductions in the volume of trash enhance the Estuary and its water quality. Municipal staff will gain experience with, and share information about, different types of trash capture devices. The project will facilitate early compliance with the San Francisco Bay Regional Water Quality Control Board's Municipal Regional Stormwater National Pollutant Discharge Elimination System Permit affecting Phase I communities, and anticipated requirements for operators of small municipal separate storm sewer systems (Phase II). SFEP/ABAG has developed an initial distribution of project resources, posted at http://www.bayareatrashtracker.org/content/contract-resources, which allocates a proportion of available funds to all project area municipalities (Exhibit A-1) based on population and regulatory requirement to capture trash. This allocation will be revised to reflect the municipalities that choose to contract with ABAG and join the project. SFEP/ABAG has solicited proposals from, and is contracting with vendors to provide trash capture devices for installation in municipal storm drain systems throughout the project area, in a range of scales and designs appropriate to different locations and conditions. All construction must be complete, and all devices installed, by November 1, 2012. The project completion date (end of project term) is December 1, 2013. Participating entities that opt to join the project will undertake the following tasks: 1. Contract with the Association of Bay Area Governments to participate in the Bay Area -wide Trash Capture Demonstration Project. This contract includes provisions required by both ARRA and the CWSRF. 2. Review the list of vendors and trash capture devices included in the project (Exhibit A-2); identify high trash -generating locations for installation of devices; and work with vendors' representatives to select and size devices appropriate to those sites. Each individual installation must either be covered by the Project's categorical exemption from requirements of the California Environmental Quality Act (CEQA Guidelines Section 15302(c), Replacement or Reconstruction), or the municipality must submit to ABAG complete CEQA documentation that was been duly filed with the Governor's Office of Planning and Research before September 15, 2009. 3. Complete a purchase order form (example in Exhibit A-3) for each vendor of selected devices, specifying devices and locations; sign the form along with the vendor's representative; and submit to the SFEP project manager. Submit multiple purchase orders if necessary. 4. Either supervise installation of each device by the vendor; install the device with municipal staff labor; or contract separately with an appropriate installer (using municipal funds unless otherwise arranged with ABAG legal staff) to place the device in accordance with specifications. When the device is properly installed and functioning, complete a Notice of Acceptance (Exhibit A-4) and submit the ABAG.-When a representative of the city or county signs the Notice of Acceptance, ownership and responsibility for upkeep and maintenance of the device pass from ABAG to the municipality. 6. Display a project placard, to be provided by ABAG, in city/county offices or other appropriate public space 7. Maintenance: Municipal staff will perform or supervise appropriate regular maintenance of each device according to manufacturer's instructions or best practices. Each device will be maintained so as to maximize effectiveness and minimize both flooding and flow of trash through the storm drainage system; 5 and to filter the one-hour/one-year storm at all times. The municipality will maintain the device in good working order for the useful life of the TCD (not to exceed 25 years), unless otherwise authorized by ABAG and the State Water Resources Control Board Division of Financial Assistance. 8. Monitoring and reporting: Municipal staff will use the online reporting website operated by ABAG/SFEP to record the following: a. Installation/location I. Device inventory number, name, and type ii. Size/capacity of device iii. Installation location iv. Catchbasin dimensions, if applicable v. Outflow pipe diameter vi. Best estimate of catchment area (required for high flow capacity devices, optional for small devices) vii. Major land uses in catchment, estimated percentages (high flow capacity devices); or dominant land use adjacent to catchbasin (small TCDs) b. Maintenance reporting for each maintenance event during the project term: I. Date of maintenance ii. Staffing, time, and equipment required to perform maintenance iii. Estimated percentage full at time of maintenance iv. Optional: 1. Condition of catchbasin and device 2. Characteristics of trash removed from device (visual estimate) Al Alameda County Alameda Albany Berkeley Dublin Emeryville Fremont Hayward Livermore Newark Oakland Piedmont Pleasanton San Leandro Union City County of Alameda Contra Costa County Antioch Brentwood Clayton Concord Danville El Cerrito Hercules Lafayette Martinez Moraga Oakley Orinda Pinole Pittsburg Pleasant Hill Richmond San Pablo San Ramon Walnut Creek County of Contra Costa EXHIBIT A-1 LIST OF POTENTIAL PARTICIPANTS Marin County Belvedere Corte Madera Fairfax Larkspur Mill Valley Novato Ross San Anselmo San Rafael Sausalito Tiburon County of Marin Napa County American Canyon Calistoga Napa St Helena Yountville County of Napa San Mateo County Atherton Belmont Brisbane Burlingame Colma Daly City East Palo Alto Foster City Half Moon Bay Hillsborough Menlo Park Millbrae Pacifica Portola Valley Redwood City San Bruno San Carlos San Mateo South San Francisco Woodside County of San Mateo Santa Clara County Campbell Cupertino Los Altos Los Altos Hills Los Gatos Milpitas Monte Sereno Mountain View Palo Alto San Jose Santa Clara Saratoga Sunnyvale County of Santa Clara Solano County Benicia Fairfield Suisun City Vallejo County of Solano Sonoma County Petaluma Sonoma County of Sonoma 7 EXHIBIT A-2 SAN FRANCISCO Bay Area -wide Trash Capture Demonstration Project �iVendors and devices approved March 18, 2010 ESTUARY PARTNERSHIP Small devices with San Francisco Bay Water Board certification for full trash capture Device ID Vendor Device Name AS-1 Advanced Solutions Stormtek ST3 AS-2 Advanced Solutions Stormtek ST3-G BMP-1 Best Management Products, Inc. SNOUT Oil -Debris Separator (with Trash Screen) BC-1 Bio Clean Environmental Services, Grate Inlet Skimmer Box (square design) Inc. BC-2 Bio Clean Environmental Services, High Capacity Round Grate Inlet Skimmer Box Inc. BC-3 Bio Clean Environmental Services, Modular Connector Pipe Screen Inc. BC-4 Bio Clean Environmental Services, Trash Guard Inc. ECI-1 Ecology Control Industries Debris Dam (American Stormwater) G2-1 G2 Construction, Inc. Collector Pipe Screen G2-1 R G2 Construction, Inc. Collector Pipe Screen Removable GFI-1 Gentile Family Industries WAVY GRATE Trash Catcher (Waterway Solutions) KS-1 KriStar Enterprises, Inc. Flo Gard Plus Catch Basin Filter Insert, combination inlet style — C3 (stainless steel) KS-2 Flo Gard Plus Catch Basin Filter Inserts, flat KriStar Enterprises, Inc. grated inlet style, rectangular or round — C3 (stainless steel) KS-3 KriStar Enterprises, Inc. FloGard Catch Basin Outlet Screen Insert REM-1 Revel Environmental Manufacturing, Triton Bioflex Drop Inlet Trash Guard Inc. USW-1 United Stormwater, Inc. Connector Pipe Screen WCS-1 West Coast Storm, Inc. Connector Pipe Screen XP-1 Xeripave, LLP (pending) 9 Devices not certified by the Water Board, but eligible for ordering by municipalities where they will be used in combination with full capture devices Device ID Vendor Device Name ECI-2 Ecology Control Industries (American Stormwater) Surfgate G2-2 G2 Construction, Inc. CamLock Debris Gate G2-3 G2 Construction, Inc. FS 10 GFI-2 Gentile Family Industries (Waterway Solutions) AIRS —automatic retractable screen KS-4 KriStar Enterprises, Inc. Trash and Debris Guard USW-2 United Stormwater, Inc. Clean Screen III XP-2 Xeripave LLC Infill existing grate XP-3 Xeripave LLC Storm Grate and Lintel WCS-2 West Coast Storm, Inc. AIRS — automatic retractable screen High Flow Capacity Devices with Water Board certification Device ID Vendor Device Name BC-5HF Bio Clean Environmental Services, Inc. Nutrient Separating Baffle Box CCP-1 HF Contech Construction Products Continuous Deflective Separator (CDS) FCT-1 HF Fresh Creek Technologies, Inc. Inline Netting Trash Trap KS-5HF KriStar Enterprises, Inc. CleansAll KS-6HF KriStar Enterprises, Inc. Downstream Defender KS-7HF KriStar Enterprises, Inc. FloGard Dual -Vortex Hydrodynamic Separator KS-8HF KriStar Enterprises, Inc. FloGard Perk Filter KS-9HF KriStar Enterprises, Inc. FloGard Swirl -Flo Screen Separator KS-10HF KriStar Enterprises, Inc. Nettech Gross Pollutant Trap - In Line RMC-1 HF I Roscoe Moss Company Storm Flo Screen Devices with Water Board certification to be approved on a case -by -case basis, pending the Water Board's determination that installation qualifies for CEQA Categorical Exemption 15302(c), "Replacement or reconstruction of existing utility systems and/or facilities..." Device ID Vendor Device Name FCT-2HF Fresh Creek Technologies, Inc. End of Pipe Netting Trash Trap KS-11 HF KriStar Enterprises, Inc. Nettech Gross Pollutant Trap- End of Line 9 EXHIBIT A-3 SAMPLE PURCHASE ORDER FORM [Do NOT use this paper form. Use the electronic version downloadable from http://www.bayareatrashtracker.org/content/contract-resources] USE ONE FORM PER VENDOR. ATTACH ADDITIONAL SHEETS, SHOWING ALL INSTALLATION LOCATIONS, AS NECESSARY. THIS PURCHASE ORDER IS NOT FINAL UNTIL APPROVED BY ABAG P.O. No. (city/county name + 4-digit number) Date Municipality Information Vendor information City/County: Company name: Attention: Vendor Tax ID: Address Attention: Address City Zip City State Zip Phone Fax Phone Fax Email Email Order Details (Use one row for each installation. Add rows as necessary) Line # Device number Description / Model Location* Delivery Date Install / Noninstall Price 1 2 Tax Shipping/delivery, if applicable TOTAL * Location must be specific (SW corner 6th St. & Main or GPS coordinates). See online form for specification instructions. Special Conditions": "Attach additional sheets, showing all special conditions, as necessary. Approved by Date: (Signature of authorized Representative, Participating Entity) Name (print) Phone Approved by Date: (Signature of device vendor representative) Name (print) Phone Approved by Date: (ABAG) OWP # 102147 10 EXHIBIT A-4 SAMPLE NOTICE OF ACCEPTANCE [Do NOT use this form. Use the electronic version downloadable from http://www.bayareatrashtracker.org/content/contract-resources] USE ONE FORM PER VENDOR. ATTACH ADDITIONAL SHEETS, SHOWING ALL INSTALLATION LOCATIONS, AS NECESSARY. Date: This form verifies installation of trash control device(s), as required by the State Water Resources Control Board Clean Water State Revolving Fund Project Finance Agreement with ABAG for the Bay Area -Wide Trash Capture Demonstration Project, Agreement No. 09-823-550. To: San Francisco Estuary Partnership Attn.: Janet Cox 1515 Clay Street, Suite 1400 Oakland, CA 94612 (510) 622-2334 Please be advised that [PARTICIPATING ENTITY NAME] has received the following goods (TCD), pursuant to Purchase Order # , dated Date Installed Line # (from P.O.) project device number Description / Model Location Price Tax Shipping/delivery (if applicable) TOTAL Authorized representatives of [PARTICIPATING ENTITY NAME] and [VENDOR NAME] have inspected the trash capture devices (TCD) which have been received and installed in good condition, with no defects and in conformity with the order. We accept the TCD(s) noted above and authorize ABAG to pay the vendor the total amount listed above, $XXX. Approved by Date: (Signature of authorized Representative, Participating Entity) Name (print) Phone Approved by Date: . (Signature of device vendor representative) Name (print) Phone Approval to pay by: Date: (Project Manager, SFEP) Comments/Instructions: • Payment will be based on this NOA. If Vendor is using its own invoicing system, the invoice must be attached to this NOA for payment. OWP # 102147 11 EXHIBIT B STANDARD CONTRACT PROVISIONS 1. Definitions: "Contractor" as used in Exhibit B is the City of Cupertino 2. Conflict of Interest. No employee, officer, or agent of ABAG shall participate in selection, or in the award or administration of a contract if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: a) The employee, officer or agent; b) Any member of his or her immediate family; c) His or her partner; or d) An organization which employs, or is about to employ, any of the above has a financial or other interest in the firm selected for award. ABAG's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subcontracts. 3. Extensions of Time. The granting of or acceptance of extensions of time to complete performance by Contractor will not operate as a release to Contractor or otherwise modify the terms and conditions of this Contract. 4. Headings. The descriptive headings used in this Contract are for convenience only and shall not control or affect the meaning or construction of any of its provisions. 5. Prohibited Interest. Contractor's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subcontracts. 6. Remedies Cumulative. The remedies conferred by this Contract upon ABAG are not intended to be exclusive, but are cumulative and in addition to all other remedies provided by law. 7. Severability. Should any part of this Contract be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Contract, which shall continue in full force and effect; provided that, the remainder of this Contract can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties. 8. Insurance Requirements. Contractor does not maintain insurance covering third party claims arising out of its general operations, and is not required to do so by law. Contractor does appropriate funds specifically for the purpose of satisfying valid third party claims and workers' compensation claims, which may potentially be brought against Contractor. Information concerning these appropriations is a matter of public record and can be obtained from visiting the following website hLtp://www.sanjoseca.govibudge . Contractor shall provide ABAG a letter from the Risk Manager verifying its self-insurance status within thirty (30) days of executing this Agreement. 12 EXHIBIT C AMERICAN RECOVERY & REINVESTMENT ACT (ARRA) and CLEAN WATER STATE REVOLVING FUND (CWSRF) CONTRACT PROVISIONS ARTICLE I: DEFINITIONS "Contractor" as used in Exhibits C, C-1, C-2, C-3, and C-4 is the City of Cupertino. "Project" as used in Exhibits C, C-1, C-2, C-3, and C-4 refers to the fabrication and installation of trash capture devices under a Purchase Order. "System" as used in Exhibits C, C-1, C-2, C-3, and C-4 means all nonpoint source control or estuary enhancement facilities (TCDs), together with all additions, betterments, extensions or improvements to such facilities, properties, structures, or works or any part thereof hereafter acquired and constructed. ARTICLE II: REPRESENTATIONS AND WARRANTIES 2.1 General Contractor Commitments. The Contractor accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and commitments made by the Contractor in its application, accompanying documents, and communications filed in support of its request for financial assistance. 2.2 Completion of Project. The Contractor agrees to expeditiously proceed with and complete construction of the Project in substantial accordance with Exhibit A. 2.3 Project Certification. ABAG shall prepare a Project Certification that includes information collected by the Contractor in accordance with the Bay Area -wide Trash Capture Demonstration Project monitoring and reporting plan, a determination of the effectiveness of the Project in preventing or reducing pollution, and the results of the monitoring program. The Project Certification shall follow the general format provided by the Bay Area -wide Trash Capture Demonstration Project. Failure to submit a Project Certification, an affirmative certification, or a corrective action report that meets the above requirements and is satisfactory to the Division within 15 (fifteen) months of the Project Completion date will cause the State Water Board to stop processing any pending or future applications for new financial assistance, withhold payments on any existing financial assistance, and begin administrative proceedings pursuant to sections 13267 and 13268 of the Water Code. 2.4 [not applicable] 2.5 Notice. The Contractor agrees to promptly notify the ABAG Contract Manager in writing of: (a) Litigation, circulation of a petition to challenge rates, consideration of bankruptcy, dissolution, or disincorporation, or any other thing that could negatively affect or jeopardize the Contractor's revenues used for operations, maintenance, and repairs of the Project during its useful life. (b) Any substantial change in scope of the Project. The Contractor agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to ABAG and ABAG has given written approval for such change; (c) [not applicable] (d) [not applicable] (e) Discovery of any potential archeological or historical resource. Should a potential archeological or historical 13 resource be discovered during construction of the Project, the Contractor agrees that all work in the area of the find will cease until a qualified archeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the State Water Resources Control Board, Division of Financial Assistance (Division) has determined what actions should be taken to protect and preserve the resource. The Contractor agrees to implement appropriate actions as directed by the Division; (f) 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 Contractor agrees to promptly notify the ABAG Contract Manager. This notification is in addition to the Contractor's obligations under the federal Endangered Species Act; (g) Any monitoring, demonstration, or other implementation activities such that the State Water Resources Control Board (State Water Board) and/or Regional Water Quality Control Board (Regional Water Board) staff may observe and document such activities; (h) 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; and, (i) Completion of Construction of the Project, and actual Project Completion. 2.6 Project Access. The Contractor agrees to insure that ABAG, the State Water Board, the Governor of the State, the United States Environmental Protection Agency (USEPA), the Office of Inspector General, any member of Congress, the President of the United States, or any authorized representative of the foregoing, will have suitable access to the Project site at all reasonable times during Project construction and thereafter for the life of the Project. The Contractor acknowledges that the Project records and locations are public records. 2.7 Project Completion; Initiation of Operations. Upon Completion of Construction of the Project, the Contractor agrees to expeditiously initiate Project operations. The Contractor agrees to make all reasonable efforts to meet the Project Completion date established in Exhibit A. Such date shall be binding upon the Contractor unless modified in writing by ABAG upon a showing of good cause by the Contractor. The Contractor shall deliver any request for extension of the Project Completion date no less than ninety (90) days prior to the Project Completion date. ABAG will not unreasonably deny such a timely request, but the Division will deny requests received after this time. 2.8 Continuous Use of Project; Lease or Disposal of Project. The Contractor agrees that, except as provided in the Agreement, it will not abandon, substantially discontinue use of, lease, or dispose of the Project or any significant part or portion thereof during the useful life of the Project without prior written approval of the ABAG and the Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all Project Funds together with accrued interest and any penalty assessments which may be due. 2.9 Reports. (a) [not applicable] (b) As Needed Reports. The Contractor agrees to expeditiously provide, during the term of this Agreement, such reports, data, and information as may be reasonably required by ABAG or the Division, including but not limited to material necessary or appropriate for evaluation of the CWSRF Program or to fulfill any reporting requirements of the federal government. 2.10 [not applicable] 2.11 [not applicable] 14 2.12 [not applicable] 2.13 Signage. The Contractor shall post project posters inside its city hall and by posting notice on its website until the Completion of Construction date specified in Exhibit A. For both posters and website notices, the Recipient (ABAG) shall ensure the inclusion of the relevant logos and statements required by Section 2.13 of the CWSRF Project Finance Agreement with ABAG for the Bay Area -Wide Trash Capture Demonstration Project, Agreement No. 09-823-550. ARTICLE III: [not applicable] ARTICLE IV: MISCELLANEOUS PROVISIONS 4.1 Timeliness. TIME IS OF THE ESSENCE IN THIS AGREEMENT 4.2 Amendment. No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in this Agreement is binding on any of the parties. 4.3 Assignability. This Agreement is not assignable by the Contractor, either in whole or in part, without the consent of the State Water Board in the form of a formal written amendment. 4.4 [not applicable] 4.5 Compliance with Law, Regulations, etc. (a) The Contractor agrees that it will, 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, the Contractor agrees that, to the extent applicable, the Contractor will: (1) Comply with the provisions of the Categorical Exemption from California Environmental Quality Act requirements (15302(c)) associated with the Bay Area -wide Trash Capture Demonstration Project, for the term of this Agreement; (2) Comply with the State Water Board's "Policy for Implementing the State Revolving Fund for Construction of Wastewater Treatment Facilities," as amended from time to time; and (3) Comply with and require its contractors and subcontractors to comply with the list of federal laws certified to by the Contractor. 4.6 Conflict of Interest. The Contractor certifies that it is in compliance with applicable state and/or federal conflict of interest laws. 4.7 Damages for Breach Affecting ARRA Compliance. (a) In the event that any breach of any of the provisions of this Agreement by the Contractor shall result in the loss of tax exempt status for any state bonds, or if such breach shall result in an obligation on the part of the State Water Board or ABAG to reimburse the federal government by reason of any arbitrage profits, the Contractor shall immediately pay the State Water Board or ABAG, as the case may be, in an amount equal to any damages paid by or loss incurred by the state due to such breach. 15 (b) In the event that any breach of any of the provisions of this Agreement by the Contractor shall result in the failure of Project Funds to be used pursuant to the provisions of ARRA, or if such breach shall result in an obligation on the part of the State Water Board or ABAG to reimburse the federal government, the Contractor shall immediately pay the State Water Board or ABAG, as the case may be, in an amount equal to any damages paid by or loss incurred due to such breach. 4.8 Disputes. (a) Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Division Deputy Director, or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Contractor and to the State Water Board's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Contractor, the Contractor mails or otherwise furnishes a written appeal of the decision to the State Water Board's Executive Director. The decision of the State Water Board's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. (b) This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the State Water Board, or any official or representative thereof, on any question of law. (c) The Contractor shall continue with the responsibilities under this Agreement during any dispute. 4.9 Governing Law. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. 4.10 [not applicable] 4.11 Independent Actor. The Contractor, 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 or ABAG. 4.12 Non -Discrimination Clause. (a) During the performance of this Agreement, Contractor and its contractors and subcontractors shall 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, and denial of family care leave. (b) The Contractor, its contractors, and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. (c) The Contractor, its contractors, and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. (d) The Contractor, its contractors, and subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. (e) The Contractor shall include the nondiscrimination and compliance provisions of this clause in all 16 subcontracts to perform work under the Agreement. 4.13 No Third Parry Rights. The parties to this Agreement do not create rights in, or grant remedies to, any third parry as a beneficiary of this Agreement, or of any duty, covenant, obligation or undertaking established herein. 4.14 Operation and Maintenance;. The Contractor agrees to properly staff, operate and maintain all portions of the Project for at least 20 years from the project completion date (see Exhibit A) years in accordance with all applicable state and federal laws, rules and regulations. The Contractor certifies that it has in place and will maintain a reserve fund for this purpose. See Exhibit D-1. 4.15 Permits, Subcontracting, Remedies and Debarment. The Contractor shall procure all permits and licenses 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 shall be submitted to the Division before construction begins. Any subcontractors, outside associates, or consultants required by the Contractor in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during negotiations for this Agreement, or as are specifically authorized by the State Water Board's Project Representative through ABAG. Any substitutions in, or additions to, such subcontractors, associates, or consultants, shall be subject to the prior written approval of the Division. The Contractor shall not subcontract with any parry who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension." The Contractor shall not subcontract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code, § 4477) The Contractor certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or agency; (b) Have not within a three (3) year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and (d) Have not within a three (3) year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default. 4.16 [not applicable] 4.17 Contractor's Responsibility for Work. The Contractor 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. 17 The Contractor shall be responsible for any and all disputes arising out of its contracts for work on the Project. Neither the State Water Board nor ABAG will mediate disputes between the Contractor and any other entity concerning responsibility for performance of work. 4.18 [not applicable] 4.19 Rights in Data. The Contractor 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 and ABAG 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 Contractor may copyright the same, except that, as to any work which is copyrighted by the Contractor, the State and ABAG reserve 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 Contractor upon request. (40 CFR §§ 31.34, 31.36) 4.20 State and ABAG Reviews and Indemnification. The parties agree that review or approval of Project plans and specifications by ABAG or the State Water Board is for administrative purposes only and does not relieve the Contractor of its responsibility to properly operate and maintain the Project. To the extent permitted by law, the Contractor agrees to indemnify, defend and hold harmless ABAG and the State Water Board against any loss or liability arising out of any claim or action brought against ABAG or the State Water Board 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 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 (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 Contractor for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Contractor agrees to pay and discharge any judgment or award entered or made against ABAG or the State Water Board with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement. 4.21 State Water Board and ABAG Action; Costs and Attorney Fees. The Contractor agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to ABAG or the State Water Board as a result of breach of this Agreement by the Contractor, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by ABAG or the State Water Board shall not preclude ABAG or 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 parry shall bear its own filing costs and attorney fees. 4.22 Termination; Immediate Repayment; Interest. (a) This Agreement will automatically terminate without written notice if the Contractor fails to meet the timelines in Exhibit A to the PFA and the ARRA special conditions of Exhibit C-2. Under such circumstance, the 18 Contractor shall immediately pay all Project Funds received under this Agreement for purchase of the trash capture device, at the highest legal rate of interest. (b) Additionally, this Agreement may be terminated by written notice at any time prior to project completion by the Contractor, at the option of the State Water Board through ABAG, upon violation by the Contractor of any material provision of this Agreement after such violation has been called to the attention of the Contractor and after failure of the Contractor to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the Division through ABAG. In the event of such termination, the Contractor agrees, upon demand, to immediately pay to the State Water Board through ABAG an amount equal to the purchase price of the trash capture device. 4.23 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. 4.24 Useful Life of the Project. The useful life of the Project, commencing at Project Completion, is at least 20 years or the term of this Agreement, as set forth in Exhibit A hereto, whichever period is longer. 4.25 Venue. The State Water Board and the Contractor hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. 4.26 Waiver and Rights of the State Water Board. Any waiver of rights by ABAG or the State Water Board with respect to a default or other matter arising under the 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 ABAG or the State Water Board provided for in this Agreement are in addition to any other rights and remedies provided by law. 19 EXHIBIT C-1 SPECIAL ENVIRONMENTAL, FINANCIAL AND OTHER PROGRAM CONDITIONS • The Contractor shall comply with the Special Environmental, Financial, and Other Program Conditions listed in Exhibit D of the CWSRF Project Finance Agreement with ABAG for the Bay Area -wide Trash Capture Demonstration Project. See Exhibits D-2 and D-3 of this contract. • Reimbursement of Project expenses will be restricted to TCDs installed at locations where the Contractor has submitted a statement that explains certifications of access to land, operation and maintenance, and no litigation to State Water Board staff. See Exhibit D-4. 20 EXHIBIT C-2 FEDERAL ARRA SPECIAL CONDITIONS The Contractor shall comply with the Federal ARRA Conditions in the CWSRF Project Finance Agreement with ABAG for the Bay Area -wide Trash Capture Demonstration Project, Exhibit E posted at http://www.bayareatrashtracker.org/content/contract-resources) of with the exception of section I(f). Section I(f) shall read: (f) Reports. In addition to the reports specified in this Agreement, the Contractor may be asked for quarterly reports related to the goals of ARRA, including jobs created or saved. The Contractor agrees to provide such reports, if requested, in an expeditious fashion. 21 EXHIBIT C-3 ARRA SECTION 1511 CERTIFICATION The Contractor shall comply with the Section 1511 Certification in the CWSRF Project Finance Agreement with ABAG for the Bay Area -wide Trash Capture Demonstration Project, Exhibit G. The CWSRF Project Finance Agreement is posted at http://www.bayareatrashtracker.org/content/contract-resources. 22 EXHIBIT C-4 DAVIS-BACON ACT COMPLIANCE The Contractor shall comply with the Davis -Bacon Act requirements listed in Exhibit H (available for viewing from SFEP by request) of the CWSRF Project Finance Agreement with ABAG for the Bay Area -wide Trash Capture Demonstration Project. The Contractor shall comply with and use the Davis -Bacon wage determinations while working under this contract. The wage determinations can be found at: http://www.wdol.gov/dba.aspx#3. 23 EXHIBIT D-1 OPERATION AND MAINTENANCE CERTIFICATION The undersigned certifies by his or her signature the following: Cupertino agrees to continue to provide for operations and maintenance (O&M) throughout the useful life of the Project. Cupertino provides for operations and maintenance of the Project through its: ❑ General Fund, of which the estimated costs of O&M will be per cent (_%); or ❑ Other — (Name of fund), of which the estimated costs of O&M will be percent This fund is an on -going operation of the City of Cupertino. Signature Date Print Name of Signer Position/Title 24 EXHIBIT D-2 PROJECT SITE(S) ACCESS CERTIFICATION The undersigned certifies by his or her signature the following: The City of Cupertino (Contractor) certifies that the State Water Board, the Governor of the State, the United States Environmental Protection Agency, the Office of Inspector General, any member of Congress, the President of the United States, or any authorized representative of the foregoing, will have suitable access to all Project sites at all reasonable times during Project construction and thereafter for the life of the Project (not to exceed 25 years). The Contractor acknowledges that the Project records and locations are public records. Signature Print Name of Signer Date Position/Title 25 EXHIBIT D-3 NO LITIGATION CERTIFICATION The undersigned certifies by his or her signature the following: The City of Cupertino (Contractor) is not currently engaged in any pending, threatened, or actual litigation, claims, or assessments with regard to any of the Project Site(s) or the fund identified in Exhibit C-2. Signature Print Name of Signer Date Position/Title 26 EXHIBIT D-4 TITLE CERTIFICATION The undersigned certifies by his or her signature the following: All of the Project Site(s) is/are located on land owned by the City of Cupertino, or land over which the City of Cupertino has an easement for access, operation or maintenance, or is in the public right-of-way. For any Project Site where the City of Cupertino has an easement, said easement is valid for the life of the Project (not to exceed 25 years). All permits necessary for Project have been obtained or will be obtained at the appropriate time. City of Cupertino Attorney or Legal Counsel Print Name of Signer Date 27