Exhibit CC 02-15-2011 Item No. 21 ABAG AgreementASSOCIATION O BAY AREA GOVERNMENT
Agreement for Focal Agency Participation in Grant - Funded
Bay Area -wide Trash Capture Demonstration Projec
This agreement is made and entered into effective P�(, 2 0 10, by and between the A soclation of Bay
Area Govemments ABA x , a public entity formed under the California Joint Exercise of Pourers Act,
Government Cade Sections 6500, e t ,s. and the City of Cupertino (Cupertino, a City.
Recitals
A . A AG an '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-0 10, the Bay Area. - wide Trash Capture Demonstration Project
(Project). Funding is provided by the federal American Recovery and Reinvestment Act of 2009 ARA.
The PFA and amendments are located at http ww. ayareatrashtracl i -.org/ oritelit /cont.ract- resources
B. The Project is comprised of the following elements: acquisition of trash capture devices TD, 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 Pro 4 ect 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. ABA G issued Requests for Proposals for small capacity trash capture devices (small TD and for high flow
capacity trash capture devices (large T (collectively, "T 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 fumi h, and if requested, install small TCDs selected
by Participating Entities as defined in section 2(a)]; and to provide large TC.Ds; and for ABAG to pay the
cost thereof.
F . ABAG"r 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
Flit A -1 _
AB A G'r and Cupertino mutually agree as follows:
I . initial All ocation 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 T from the panel of vendors listed in Exhibit A -2 (see
section . 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 and amounts paid
for accepted TCDs. This information will be posted at http://www.bayareatrashtracker.org/content/conti'act-
resow and will be adjusted on an as- needed basis.
2 . Reallocations.
a Cupertino acknowledges th t the success of the Project depends n maxim urn use 'of the PFA Funds and
that greater-ue 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's by January 1, 2011 (Participating Entities). All reallocations will be reflected in the
current balance (see section 1.
All of the init allocations for any Potential Participants that have not execute an `Agreement for focal
Agency Participation Grant F nded SF Bay Area Trash Capture Demonstration Project's by January 1, 2011
will be reallocated among Participating Entities by A 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 A AG to each Participating Entity that is given access to the additional PF.A Funds, Cupertino
agrees that any written notice it receives p ursuant to this sect will automatically amend the allocation in
section 1 in accordance with it terms.
c B AG may reallocate access to any unused PFA Funds during the period from January 1, 2011 to March
1, 2011 as follo ws ABAG will provide written notice of the proposed reallocation to the affected
Participating Entities no less than 3 0 (thirty) calendar days prior to the date that AD AG 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
ABA G. If the affected Participating Entities and ABAG cannot agree on 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 up rtino's allocation in accordance with
this subsection c.
3 . Ordering "CDs; AB AG has published a document that lists and describes all available TC s, which is
labeled Exhibit A-2 and is online for downloading at ttp :/ / �vw. btiyar atra htra.cl er.org/ lit nt trash -
aptur -d vi s , and may be amended from time to time by ABA r. To order a. TCD, Cupertino must submit
to ABA.G 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 responsi f or negotiating a 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 vend 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 TDs in a manner that
entitles it, alone or in conjunction with others, to discounted prices for TDs. The Purchase Order is not
effective until approved by ABA G. 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 T acquired under this agreement at locations (Project Sites) that
meet the requirements set forth in Exhibits D-1 through D - 4, inclusive (Certifications).
5 . Accepting T l si Upon upertino's acceptance of a TCD, ABAG will Pay the vendor of the TCD. Cupertino
may accept a TCD only by su 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 a s Exhibit A-4. The Notice of Acceptance Form is available online for downloading at
.Iittp:/ www.ba areat.ra htra l r.or :o fent/contract-resourc and may be amended from time to time by
A G.
i
6 . Deadline for TD Installation. AB,..7r will not approve any Notices of Accepta.ce submitted for any TD
installed after November 1, 2012. Cupertino acknowledges and accepts the rids described in section 9 that
may result from upertino'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 A BAGs contract with the vendor of the T. The current version of A contract with
each vendor is online at ht tP:HiAriAf w.ba ,r tr tAtra.c er.or& e tent /trash -capt ire -d ices
8 . Transfer of Rights to T Ds. Immediately upon AB G'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
Notice of Acceptance, or A.AG 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 A.A., 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 TC
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 hannl ess, defend and indemnify ABA G, 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 A. A. 's acts or omissio s.
13. Entire Agreement. This agreement and its attachment are entire as to the activities covered by it. This
agreement sup rsedes any and all other agreements either oral or in writing between .A AG and Cu ertin
with respect to'' the subject matter hereof. AB AG and- Cupertino acknowledge that no representations,
inducements, promises or agreements, orally or otherwise, have been made to any party, or anyone acting on
behalf of anyy arty, 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:
AA
San Francisco Estuary Partnership
1515 Clay Street, Suite 1400
Oakland, CA. 94612
Attn.. Janet Cox, Contract Manager
Phone: (51 0) 622-2334
Email.- ,iwcox a waterboards. a:x
City /County
City of Cupertino
10300 Torre Ave
Cupertino, CA 95014
Attention: Cheri Donnelly
Phone: 408.777-3242
Email: cherid@ cupertino.org
1 . Binding on Heirs. This agreement shall be binding upon the heirs, successors, assigns, or transferees, of
ABAG or Cupertino, as the ease 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
A,A. 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: .. ,
Bar. '�
(Print name and title
(Tax l i
Dated
ASSOCIATION OF BAY ARE GOVERNM
E zra Rapport
Executive Director
Approved as to legal form and content:
Kenneth K. Moy, Legal Counsel
Association of Bair Area Governments
roved as to legal form and content:
r
Print Name & 'Tine
. City of Cupertino
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The Bay Area -wide Trash Capture Demonstration Project is funded by the State water Res urces Control Board
Clean water State Revolving Fund CwS F 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
(AB AG) 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.
s.
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
infornnation 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 seiner system (Phase II).
SFEPABAx has developed an initial distribution of project resources, posted at
lift : w ww.bat areatr l fra.cl er.o.r /coti :ent /contr .ct- reso ree , which allocates a proportion of mailable finds to
all project area municipalities (Exhibit ,- I
J 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.
SPEP ABA.G has solicited proposals from, and is contracting with vendors to provide trash capture devices for
installation in r unicipal storm drain systems throughout the project area, in a grange 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 terra) 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 Govemments to participate in the Bay Area -wide Trash
Capture Demonstration Project. This contract includes provisions required by both ARRA and the
CwSF 4
2. Review the list of vendors and trash capture devices included in the project (Exhibit -; 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 Proj ect'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- for each vendor of selected devices, specifying
devices and locations; sign the form along with the vendor's representative; and submit to the SUP
project manager. Submit multiple purchase orders if necessary.
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
ABAr legal staff) to place the device in accordance with specifications.
-5- When the' device is properly installed and functioning, complete a Notice of Acceptance { Exhibit A.--4
and submit the AEA. -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 ABA, 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 store at all tunes. The municipality will maintain the device in good
wort g order for the useful life of the T D 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 SFEP
to record the following
a. fnstallatlonlloeation
1. Device inventory number, name, and t pe
li. Size /capacity of device
iii. Installation location
iv. Catchbasin dimensions, if-applicable
. Outflow pipe diameter
Sri. Best estimate of catchment area (required for high fl apaeity devices, optional for
small devices
vii. Major land uses in catchment, estimated percentages (high flow capacity devices); or
dominant land use adjacent to eatehba in (small "CDs)
b. Maintenance reporting for each maintenance event during the project teen:
i. Date of maintenance
li. Staffing, thee, and equipment required to perform maintenance
iii. Estimated percentage full at time of maintenance
i. Optional: :
1. Condition of eatehbain and device
2. Characteristics of trash removed from device (visual estimate)
0
7
E XHIBIT A -1
LIST OF POTENTIAL PARTICIPANTS
Alameda County
Marro County
Santa Clara County
Alameda
Bclvcderc
Campbell
.Albany
Corte Madera
Cupertino
Berkele
Fairfax
Los Altos
Dublin.
Larkspur
Los Altos Hills
Emeryville
Hill Valley
Los Gatos
Fremont
Novato
Milpitas
Hayward ard
Ross
Monte Sereno
Liv n ore
San Anselmo
Mountain View
Newark
San. Rafael
Palo Alto
Oakland
Sausalito
San. Jose
Piedmont
Tiburon
'Santa Clara
Pleasanton
County of Marin
Saratoga
San Leandro
SunnyVal
Union City :.
Naha County
County of Santa Clara
County of Alameda
American Canyon
Calftoga.
Solano County
Contra Costa•- County. .
Napa
Benicia
Antiof,h
St Helena
Fairfield
Brentwood
Yountvillc
Suisun City
Clayton
County of Napa.
Val Iej*o
Concord
County of Sol.no
Danville
San Mateo County
El Cerrito
Atherton
Sonoma County
Hercules
Belmont
Petaluma
Lafayette
Brisbane
Sonoma
Martinez
Burlingamc
County of Sonoma
Moraga
Col la
Oakley
Daly City
rinda '
Bast Palo Alto
Pinole
Foster City
P ittsburg
-Half Mo Bay
Pleasant Hill
Hillsborough
Richmond
Menlo Park
San Pablo
Millbrae
San Ramon
Pacifica
Walnut Creek
Portola Valley
County of Co tra 'C ta
Redwood City
San Brun
Sari Carlos' -
San Mateo
South San Francisco
Woodside
County of San Mateo
7
CIF ± N
SAN FRANCiSCO
Bay Area -wide Trash Capture
Demonstration Project
i Vendors and devices approved March 18,,2010
ESTUARY
PARTNERSHIP
Small devices with Son Francisco Barr Water Board certification for fuff trash capture
Device ID
'Vendor
Device Name
AS -1
Advanced Solutions
Storrtek ST
AS-2
Advanced Solutions
Stcrmte ST -G
BM P-1
gent Management Prod ats, Inc.
SNOUT Oil - Debris Separator (w ith Trash
Screen
BC-1
Bio Clean Environmental Services,
Grate Inlet Skimmer Boy (sq design)
Inc,
BC-2
Bio Clean Environmental Services,
High Capacity bound gyrate Inlet Skimmer Bob
Inc.
BC-3
Bits Clean Environmental Servic6s,
Modular Connector Plpe Screen
Ina.
BC -4
Bio Clean Environmental Services,
Trash guard
Inc.
ECI- -1
Ecology control Industries
[debris Dar
( American Storrnat er
2--1
G2 Construction, Inc.
Collector Pipe Screen
2 -1 R
G2 Construction, Inc.
Collector Pipe Screen Removable
GFI -1
Gentile Family Industries
WAVY GRATE Trash Catcher
(Waterway Solutions)
IBS -1
riStar Enterprises, Inc.
p
Flo Gard Plus Catch Basin Filter In' serf,
combination inlet style — c3 (stainless steel)
KS-2
Flo Gard Plus Catch Basin Filter Inserts, flat
l riStar Enterprises, Inc.
grated inlet style, rectangular or round — C
(stainless steel)
KS-3
KriStar Enterprises, Inc.
FloGard Catch Basin Cutlet Screen Insert
REM-1
Level Environmental Manufacturing,
Triton Bieflex trop Inlet Trash Guard
Inc.
SWA
United Stormw ter, Inc.
Connector Pipe Screen
CS -1
Hest Coast Storm, Inc.
Connector Pipe Screen
XP -1
Xeri a e, LLP
(pending)
E
Devices lees riot c ertified by the Water Board, but eligible for ordering by municipalities arllttes T here
they will be used in combination with full capture devices
Device ID
Vendor
Device lame
ECI-2
Ecology Industries
( American Stormwater
Surf g ate
G2-2
G2 Construction, Inc..
CamLock Debris Gate
G2--3
G2 Construction, Inc.
FS 10
GFI-2
Gentile Family Industries
( Waterway Solutions)
AIDS — automatic retractable screen
KS-4
Kr Staler Enterprises, Inc.
Trash and Debris Guard
U SW-2
United Stormwater, I nc.
Clean Screen l j I
XP -2
Xeripve LLC
Inflll existing grate
XP -3 `..
Xeripave LLC
Storrs Grate and Lintel
WCS-2
hest Coast Storm, Inc.
AIDS --- automatic retractable screen
High Flow Capacity Devices with Water Board certification
Device ID
Vendor
Device Na e
E -5HF
Bio Clean Environmental Services,
Inc.
I Iutrlen# separating B ft�e Bo
CCP-1 HF ,
Contech construction Products
Continuous Deflective Separator CDS
FCT -'I HF
Fresh Creek Technologies, Inc.
lnline letting Trash Trap
KS --5HF
KriSt r E I nc.
Clean All
KS --6HF
KriSt r Enter Inc.
Downstream Defender
KS-7 HF
K Enterprises, Inc.
FloG Dual-Vo Hydrodynamic Separator
K S-8 HF
K Enterprises Inc.
Fl rd Perk F
KS IMF
KriStar E nter p rises, Inc.
FloGarrd Swirl Flo Screen Se p arator
IBS -1 HF
l' riSt r E nter p rises, Inc.
l ettech G ross pollutant Trap In Line
MC -1 HF
Roscoe Moss Compan
Storm Flo Screen
Devices es ith Water Board certification t ' ' a lareved on ar case basis; pendi
the doter Board's determination that installation qualifies for CEQA Categorical Exemption
1 , "Replacement or reconstruction of existing utility systems and or facilities..."
Device ID
Vendor
Device Name
e
FCT -2HF
Fresh Creek Technologies, Inc.
End of pipe letting Trash Trap
KS-1 1 HF
Kri t r Enterprises, Inc.
I ett ob Gross Pollutant Trap- End of Line
9
EXHIBIT -
SAMPLE PURCHASE ORDER FORM
jDo NOT use this paper form. Use the electronic version d wntoadabl from
http://www.bayareatrashtracker.org/content/contract-resources]
SS ON FORM P V ATTACH ADDITIONAL SH SHOWING A INSTALLATION
TI
L OCATIONS, AS NECESSARY.
THIS PURCHASE RD F IS NOT FINAL UNTIL APPROVED BY A A
P.O. No. it /county name + -digit number)
Date
Municipality Information
Vendor information
City / o - unty:
Company name:
Attention:
Vendor Tax III:
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 i
Device
number
Description Model
Location*
Delivery
hate
Install
on t ll
Price
Tax
Shipping/delivery, if applicable
TOTAL
Location must be specific w corner "' t. & slain 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)
Marne (print) Phone
Approved by Date:
ABA
VP 102147
1
EXHIBIT -4
AMPLE NOTICE ICE ACCEPTANCE
[Do NOT use this form. Use the electronic verstion downloadable from
http://www.bayareatrashtracker.org/content/contract-resources]
USE ONE FORM PER VENDOR. ATTACK ADDITIONAL SHEETS, SNOWING ALL INSTALLATION
LOCATIONS, S NECESSARY.
_ Date:
This form verifies installation of trrash control device(s), as required by the State Waiter Resources Control Board Clear
Water State Revolving Fund Project Finance Agreement with ABAG for the Bay Area-Wide Trash Capture Demonstration
Project, AgreementNo. - 823 -550.
To: Sark Francisco Estuary Partnership
A.ttn.. Janet Cox
1515 Clay S tree t, Suite 14
Oakland, CA 94612
1 '622 -2334
Please be advised that [PARTICIPATING ENTITY DAME] has received the following goods TCD, pursuant to
Purchase Order # dated
Date
Installed
Line #
fro
P.O.)
Project device
number
Description 1 Model
Location
Price
'fait
Shipping /delivery if appficable)
TOTAL
Authorized representatives of [PARTICIP TfN 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
Lhe order.
We accept the TCD s noted above and authorize ABAG to pay the vendor the total amougt listed above, $XXX.
Approved by Date;
(Signature of authorized Representative, Participating Entity
Marne (print) Phone
Approved by . Date
(Signature of device vendor representative)
Tar print Phone
Approval to pay by; Date:
( Project Manager, SEP
Comments/Instructions:
Payment will be based an this N A. If Vendor is using its own invoicing system, the invoice mast be attached to this
ND.A for payment.
WP # 10 147
11
E X H IBIT
STANDARD CONTRACT ' PRO'V'ISIONS
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' ire 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.
ABA .,pr'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 contractor, 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 fall force and effect; provided that, the remaind 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 http://www.,saiiioseca.g ov/b Contractor shall provide
ABAG a letter from the Risk Manager verifying its self - insurance status within. thin days of executing
this Agreement,
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EXHIBIT C
AMERICAN RECOVERY & REINVESTMENT A. T (ARRA) d
CLEAN WATER STATE REVOLVING FUND CW R
CONTRACT PROVISION
ARTICLE- I : DE FI NI TI N
"Contractor" as used in Exhibits C, C - 1, C C and C is the City of Cupierti� ':
C'Pro j ect" as used in Exhibits Q, C- I , C-2 C-- , and C--4 refers to the fabrication and instal ation of trash' capture
devices under a Purchase Order.
"S tem" as used in Exhibits C , C - C -2, C -3, an C - means all n.onpoiut source control or estuary enhancement
facilities (TCDs ), together with all additions, betterments, extensions or improvements to such facilities,
properties, stracture , or'w rl s or any part thereof hereafter acquired an constructed.
ARTICLE 11: REPRESENTATIONS AND WARRANTIES
S
2 .1 General Contractor Commitments.
The Contractor a cepts and agrees to comply with all terns, provisions, conditions, and commitments of this
Agreement
3 including all incorporated documents, and to fulfill all assurances, declarations, representations, and
commitments made b th e 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 comp l to construction of the Project in substantial
accordance with Exhibit A .
Project Certification..
ABAG shall pre 'pare 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
prof ect.
Failure to submit a Project C ertification, an affirmative certification, or a corrective action report that meets the
above requirements and is satisfactory to the Division within 1 (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 airy 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 AB AG Contract Manager in writing of:
(a ) Li i ati n, circulation of a petition to challenge rates, consideration of bankruptcy, dissolution, or-
disi corporation, or any other Ming that could negatively affect or j eopardize the Contractor's revenues used for
operations,- maintenance, and repairs of the Project during its useful life.
( b) Any substantia c in scope o the Project. The Contractor agrees that no substantial change in th e scope
of the Project will .be undertaken until written notice of the proposed change has been provided to ABA.G and
ABAG has given written approval for such change;
( ) [not applicable]
(d ) [not applica R
(e ) Discovery of any potential archeological or historical resource. Should a potential archeological or historical
1
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 Mate Water Resources Control Board, Division of Financial Assistance
(Division has determined what actions should b e 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`r 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 Mate 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 1 working
days nonce; 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 Mate, the United Mates
Environmental Protection Agency USEP , the Office of Inspector General, any member of Congress, the
President of the United Mates, 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. A AG will not unreasonably
deny such a timely request, but the Division will deny requests received after this tire.
2.8 Continuous Use of Project; Lease or Disposal of Proj ect.
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 AB AG it and the Division. Such approval may be conditioned as determined
to be appropriate by the Division, including a condition requiring repayment of all Project ponds together with
accrued interest and any penalty assessments which may be cline.
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. [not applicable]
2.11 [not applicable]
1
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 web site notices, the
Recipient (A BAG) 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 `gash Capture
Demonstration Project, Agreement loo. 09-823-550.
ARTICLE III: [not applicable]
ARTICLE : NUSCELLA.N o S PROVISIONS.
4.1 Timeliness.
TIME IS OF THE ESSENCE IN TIHS AGREEMENT.
T.
4.2 Amendment.
No amendment . r variation of the terms of this Agreem nt shall be valid Unless made in writing, signed by the
parties and a proved as :re 'uiced.' Igo 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 130c associated with the Bay Area. -wide Trash Capture Demonstration Project, for
the terrn of this Agreement;
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
Comply with and require its contractors and subcontractors to comply with the list of federal laws
certifed by the Contractor.
4.6 Conflict of Interest.
The Contractor certifies that it is in' comp i a ce with applicable stake a d br fe car x on ct of t re t laws.
.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 Mn 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 inunediately pay the State water Board or ABAG, as the case may be, in an amount equal to any damages
paid by or less incurred by the stag due to such breach..
15
b In the event that any breach of any of the pro - vision' 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 ABA to reimburse the federal government, the Contractor
shall i pay the State water Board or ABA G, as the case may be, in an amount equal to any damages
paid by or loss incurred due to such breach.
4.8 Disputes.
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 o calendar days after nailing 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 ful .11 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 Mate 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 fiord or AA.
4.12 Mon- Discrimination Clause.
a During the performance of this Agreement, Contractor and its contractors and' subcontraefofs 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 Dousing Act (Gov. Code, § I2990 a -f et seq.) and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285 et se q.). The applicable regulations of the Fair
Employment and Mousing Commission implementing Government Code Section 12990 a--f , set forth in Chapter
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 fortb 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
1
subcontracts to perf'onn work under the Agreement.
4.13 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.
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 colxipletion 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 necess ary - and incidental to the due and Iawfal
prosecutionof 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 wcre specifically identified and agreed
to during negotiations for this Agre ment, or as are specifically authorized by the State water Board's Project
Representative through A AG. Any substitutions in, or additions to, such subcontractors, associates, or
consultants, shall' be subject to the prior written approval of the Division.
t
The Contractor shall not ubcontract with any party who is debarred or sus.pended r other e clud ro'm or
ineligible for participation in federal assistance programs under Executive Order 12549, "Debarrr ent and
Suspension." 'The Contractor shall not subcontract with any individual or organization on US EPA's List of
Violating Facilities. FR, Pant 31.3 5, Gov. Code, . 4
The Contr'a'ctor certifies to the best of its knowledge and belief, that it and its principals.
a Are not presently debarred, $uspended, proposed for debarment, declared ineligible, or voluntarily excluded by
any Federal department or agency,
b Have not within a three 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 . stateents, or receiving stolen property;
c Are not re e tly indicted for or otherwise criminally or civilly charged by a govemmental entity {federal,
state or local} 'with corm fission Of any of the offenses enumerated in paragraph b of this certification; and
d Have not within a three year period preceding this application /proposal had one or more public
transactions (federal, state 6 local) terminated for cause or default,
4.1 [not applicable
4.17 Contractor's Responsibility for W ork.
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.
1
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 prograrns, operating
manuals, notes, and other written or graphic work produced in the performance of this Agre went are subject to
the rights of the State as sot forth in this section. The State and ABAG shall have the right to reproduce, publish,
and use all such wort, 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. o CFR § § 3 1.3 4, 31.3 6)
4.20 State and ABA r Reviews and Indemmification.
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 felieve 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 A.BA x or the State Water Board from and against any and all losses, claims, darnages, liabilities or
expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any wa.
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 th reof; the carrying out of any of the transactions contemplated by this
Agreement or any related document; 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 suceessors to said laws), rule or regulation or the release of any
toxic substance on or near the System; or 'any untrue statement or alleged untrue statement of any material fact
or omission or alleged omission to state a material Fact necessary to make th.e statements required to be stated
therein, in light of the circumstances under which they were rude, not misleading with respect to any information
provided by the Contractor for'use in any disclosure d ocument utilized in connection with any of the transactions
contemplated by thi 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 ABA..7r 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 AB A. or the State Water Board 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 AIBAG 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 A greement, it is agreed that each party shall bear its own
ling costs and attorney fees.
4.22 Termination; Imm ediate Repayment; Interest.
a This ,Agreement will automatically terrnate without written notice if the Contractor fails t meet the
thnelines in Exhibit A to the PFA. and the ARRA special conditions of Exhibit C -2. Under such circumstance, the
1
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.
h 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 ABA G, 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 o , ntractor to bring itself into compliance with the provisions of this Agreement within a
reasonable time as established by the Division through ABA G. In the event of such termination, the Contractor
agrees, upon demand, to immediately pay to the State 'Water Board through ABAx 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 sef forth in Exhibit A. hereto, whichever period is longer.
4.25 Venue.
The Mate Water B Gard 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, Califomia, or in the United States
District Court in and for the Eastern District of alif'ornia.
4.26 Waiver and Rights of the Mate 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 an
other rights and remedies providcd by law.
1
1 M I 1 :
SPECIAL ENVIRONMENTAL, FINANCIAL AND OTHER PROGRAM CONDI'T'IONS
•
- fhe Contractor shall comply with the Special Environmental, Financial, and Other Program Con diti ns 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 'CDs installed at locations whore the Contractor has
s a statement that explains certifications of access to land, operation and maintenance, and no
litigation to State Water Board staff, See Exhibit D-4.
EXHIBIT C-
FEDERA ARRA SPECIAL CONDITIONS
The Contractor' shall. comply with the Federal ARRA. Conditions in the C SRF Project Finance Agreement with
ABAG for the Bay .Area -wide Tr Captare Demonstration Project, Exhibit E posted at
bjqL. / w . bay are teas tr l er.org/content/contrac t-r ur of with the exception of section 1 (f). Section 1
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
F. TIT T -
ARRA SEC'T'ION 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 Finan e
Agreement is posted at http://www.bayareatrashtracker.org/content/contract-resources.
22
XIT C"
DAVIS -BACON ACT COMPLIANC
C
The Contractor shall 'Comply with the Davis-Bacon co Act requirements listed in Exhibit H (available for viewin
from SFEP by request) of the Wes' Project Finance Agreement with A13AG for the Bay ,area - wide Trash
Capture De monstration Project.
The Contractor shall comply with and use the Davis - Bacon wage determinations while working under this
contract. The wage determinations can be found t: lift ,� yw.wdol.�4 ov /d b .as # .
23
E XHI B IT IW1
OP AND MAIN C
The undersigned certifies by his or her signature the following:
Cupertino agrees to continue to provide for operations and maintenance M throughout the usefal life of the
ProJeet. Cupertino provides for operations and maintenance of the Project through its:
❑ General Fund, of which the estimated costs of &M will b _ per cent O/o ;
o r
Other T
(Name of fund), ofwhieh the estimated costs of O&M will be percent
This fiend is an ors -going operation of the City of Cupertino.
Signature
Print Name of Signer
Date
Position Title
24
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 th foregoing, will have suitable access to all Project sites
at all reasonable tines 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- ]ate
Print Name of Signer
Position/Title
25
OBIT I-
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,
la. ns, or assessments with regard to any of the Project Site(s) or the fund identified in Exhibit C-2.
Signature
]date
Print Marne of Signer Position/Title
26
EXHIBIT D-4
TITLE CERTIFICATION
The undersigned certifies by his or her signature the following:
All of the Project it 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 Proj ect
(not to exceed 2 years).
All permits necessary for Project have been obtained or will be obtained at the appropriate time.
City of Cupertino
Attorney or Legal - Counsel
Date
Print lame of Signer
27