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HomeMy WebLinkAboutCA State Water Resources Control Board - Wter Recycling Funding Program - D2101056_Amd1_ ExecAmd WATER RECYCLING FUNDING PROGRAM CONSTRUCTION GRANT AGREEMENT No. D2101056 by and between CITY OF UKIAH (“Recipient”) AND CALIFORNIA STATE WATER RESOURCES CONTROL BOARD (“State Water Board”) for the purpose of the WATER RECYCLING PROJECT – PHASE 4 REFINEMENTS C-06-8487-110 (“Project”) AMENDMENT 1  Senate Bill 129 (Stats. 2021, Ch. 69), Item 3940-106-0001 of Section 2.00 of the Budget Act of 2021, Provision 2, and Resolution No. 2021-0044.  Section 80147 of the Public Resources Code and Resolution No. 2019-0058.  PROJECT FUNDING AMOUNT: $53,770,000.00 GRANT COMPONENT: $53,770,000.00 ESTIMATED REASONABLE PROJECT COST: $53,770,000.00 ELIGIBLE WORK START DATE: JANUARY 1, 2018 ELIGIBLE CONSTRUCTION START DATE: SEPTEMBER 23, 2022 COMPLETION OF CONSTRUCTION DATE: SEPTEMBER 30, 2024 DECEMBER 31, 2025 FINAL REIMBURSEMENT REQUEST DATE: MARCH 30, 2025 MARCH 31, 2026 RECORDS RETENTION END DATE: SEPTEMBER 30, 2060 DECEMBER 31, 2061 This Agreement executed by the State Water Board on January 9, 2023, is hereby amended and restated, to revise the cover page, the Agreement and Exhibits A and B (deletions shown as stricken and revisions bold and underlined). Except as noted herein all other terms and conditions shall remain the same. Please note, page numbers may have changed. * -*/$")-)./$*)0( -ѷ  ,+3' с (&пт #3у шп,+ City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 2 of 24 1. The State Water Board and the Recipient mutually promise, covenant, and agree to the terms, provisions, and conditions of this Agreement, including the following Exhibits, which are attached hereto or are incorporated by reference:  EXHIBIT A – SCOPE OF WORK AND SCHEDULE  EXHIBIT B – SPECIFIC FUNDING PROVISIONS  EXHIBIT C – GENERAL TERMS AND CONDITIONS 2019-NOV  EXHIBIT D – SPECIAL CONDITIONS 2. The following documents are also incorporated by reference:  the Final Plans & Specifications, which are the basis for the construction contract to be awarded by the Recipient;  the Waste Discharge Requirement Order No. R1-2018-0035 and National Pollutant Discharge Elimination System Permit No. CA0022888, and any amendments thereto; 3. Party Contacts during the term of this Agreement are: State Water Board City of Ukiah Section: Division of Financial Assistance Name: Jody Hack, Steve Cheung, Project Manager Name: Sage Sangiacomo, City Manager Address: 1001 I Street, 16th Floor Address: 300 Seminary Ave City, State, Zip: Sacramento, CA 95814 City, State, Zip: Ukiah, CA 95482 Phone: (916) 341 5811 (916) 449-5612 Phone: (707) 463 - 6221 Fax: Fax: Email: Jody.hack@waterboards.ca.gov steve.cheung@waterboards.ca.gov Email: ssangiacomo@cityofukiah.com Each party may change its contact upon written notice to the other party. While Party Contacts are contacts for day-to-day communications regarding Project work, the Recipient must provide official communications and notices to the Division’s Deputy Director. 4. Conditions precedent to this Agreement are set forth as follows: (a) The Recipient must deliver to the Division a resolution authorizing this Agreement and identifying its authorized representative by title. (b) The Recipient must deliver an opinion of general counsel satisfactory to the State Water Board’s counsel dated on or after the date that the Recipient signs this Agreement. 5. The Recipient represents, warrants, and commits to the following as of the Eligible Work Start Date and continuing thereafter for the term of this Agreement, which shall be at least until the Records Retention End Date: (a) The Recipient agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents. (b) The execution and delivery of this Agreement, including all incorporated documents, has been duly authorized by the Recipient. Upon execution by both parties, this Agreement constitutes a valid and binding obligation of the Recipient, enforceable in accordance with its terms, except as such enforcement may be limited by law. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 3 of 24 (c) None of the transactions contemplated by this Agreement will be or have been made with an actual intent to hinder, delay, or defraud any present or future creditors of Recipient. The Recipient is solvent and will not be rendered insolvent by the transactions contemplated by this Agreement. The Recipient is able to pay its debts as they become due. The Recipient maintains sufficient insurance coverage considering the scope of this Agreement, including, for example but not necessarily limited to, general liability, automobile liability, workers compensation and employer liability, professional liability. (d) The Recipient is in compliance with all State Water Board funding agreements to which it is a party. 6. This Agreement, and any amendments hereto, may be executed and delivered in any number of counterparts, each of which when delivered shall be deemed to be an original, but such counterparts shall together constitute one document. The parties may sign this Agreement, and any amendments hereto, either by an electronic signature using a method approved by the State Water Board or by a physical, handwritten signature. The parties mutually agree that an electronic signature using a method approved by the State Water Board is the same as a physical, handwritten signature for the purposes of validity, enforceability, and admissibility. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 4 of 24 IN WITNESS WHEREOF, this Agreement Amendment has been executed by the parties hereto. CITY OF UKIAH: By: ____________________________________ Name: Sage Sangiacomo Title: City Manager Date: _________________________________ STATE WATER RESOURCES CONTROL BOARD: By: ____________________________________ Name: Joe Karkoski Title: Deputy Director Division of Financial Assistance Date: __________________________________ Oct 3, 2024 Oct 22, 2024 * -*/$")-)./$*)0( -ѷ  ,+3' с (&пт #3у шп,+ City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 5 of 24 Exhibit A EXHIBIT A – SCOPE OF WORK AND SCHEDULE A.1 PROJECT PURPOSE AND DESCRIPTION. The Project is for the benefit of the Recipient and has a Useful Life of at least 50 years. The funding under this Agreement shall be used to offset urban irrigation potable water demands, ease storage limitations at the Ukiah Wastewater Treatment Plant, and reduce treated wastewater discharges to the Russian River. A.2 SCOPE OF WORK. The Recipient agrees to do the following: The Recipient will upgrade the City of Ukiah Water Treatment Plant (UWTP), upgrade the City of Ukiah Wastewater Treatment Plant (UWWTP), and construct a new recycled water pipeline as follows:  UWWTP & Advanced Wastewater Treatment (AWT) System Improvements including: o Upgrade existing package clarifier/filter AWT units; o Replacement of adsorption clarifier media of the package clarifier/filter AWT units; o Replacement of existing and installation of new backwash air blowers; o Replacement of AWT unit valves; o Replacement of AWT pneumatic valve operators with electric operators; o Replacement of existing AWT programmable logic controller (PLC); o Replacement of primary coagulant feed pump; o Installation of rapid mix pump and flash mix assembly; o Replacement of existing chlorine residual analyzer; o Replacement of valves on final effluent / recycled water diversion lines and installation of valve actuators; and o Installation of variable frequency drives (VFDs) at the Carousel Pump Station.  Construct new 5 million gallon (MG) Treated Effluent Storage Pond at the UWWTP including installation of a new pump at the Carousel Pump Station, Storage Pond Pump Station, and associated infrastructure to transport treated effluent between the pump stations and pond.  Construct new 2 MG Recycled Water Storage Tank and Pump Station at the UWTP including a new pump station, electrical building, and associated piping infrastructure.  Construct new Phase 4 Recycled Water Distribution System including installation of approximately 3 miles of 6-inch to 18-inch diameter pipeline, replacement pedestrian bridge, customer meters and connections Upon Completion of Construction, the Recipient must expeditiously initiate Project operations. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 6 of 24 Exhibit A A.3 SIGNAGE The Recipient must place a professionally prepared sign at least four feet tall by eight feet wide made of ¾ inch thick exterior grade plywood or other approved material in a prominent location on the Project site and must maintain the sign in good condition for the duration of Project implementation. The sign may include another agency’s required information and must include, prominently displayed, the following disclosure statement and color logos (available from the Division): “Funding for this project has been provided in full or in part under the Proposition 68 through an agreement with the State Water Resources Control Board.” A.4 SCHEDULE. Failure to provide items by the due dates indicated in the table below may constitute a material violation of this Agreement. The Project Manager may adjust the dates in the “Estimated Due Date” column of this table, but Critical Due Date adjustments will require an amendment to this Agreement. The Recipient must complete and submit all work in time to be approved by the Division prior to the Project Completion. As applicable for specific submittals, the Recipient must plan adequate time to solicit, receive, and address comments prior to submitting the final submittal. The Recipient must submit the final Reimbursement Request prior to the Final Reimbursement Request Date set forth on the Cover Page. ITEM DESCRIPTION OF SUBMITTAL CRITICAL DUE DATE ESTIMATED DUE DATE EXHIBIT A – SCOPE OF WORK Final Plans and Specifications N/A N/A Complete Completion of Construction September 30, 2024 December 31, 2025 N/A EXHIBIT B – REIMBURSEMENTS, BUDGET DETAIL, AND REPORTING PROVISIONS REIMBURSEMENTS Final Reimbursement Request March 30, 2025 March 31, 2026 N/A REPORTS Progress Reports Quarterly Final inspection and Certification TBD Project Completion Report TBD As Needed Reports. As requested by Division Final Budget Approval Package April 30, 2023 Complete The Recipient must award the prime construction contract and begin construction timely. The Recipient must deliver any request for extension of the Completion of Construction Date no less than 90 days prior to the Completion of Construction Date. The Division may require corrective work to be performed prior to Project Completion. The State Water Board is not obligated to reimburse corrective work under this Agreement. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 7 of 24 Exhibit A A.5 PROGRESS REPORTS. The Recipient must provide a progress report to the Division each quarter, beginning no later than 90 days after execution of this Agreement. The Recipient must provide a progress report with each Reimbursement Request. Failure to provide a complete and accurate progress report may result in the withholding of Project Funds, as set forth in Exhibit B. A progress report must contain the following information: 1) A summary of progress to date including a description of progress since the last report, percent construction complete, percent contractor invoiced, and percent schedule elapsed; 2) A description of compliance with environmental requirements; 3) A listing of change orders including amount, description of work, and change in contract amount and schedule; and 4) Any problems encountered, proposed resolution, schedule for resolution, and status of previous problem resolutions. A.6 RECYCLED WATER REPORTS. (a) Commencing with the date of Project Completion, the Recipient must submit annual reports for five (5) consecutive calendar years or until the Project’s actual total annual recycled water deliveries equal the Project’s planned total recycled water deliveries. (b) The Recipient must submit annual reports in hard copy and/or electronically. (c) The first annual report is due on February 28th following the first full calendar year of operation and must cover the period from the Project Completion through the end of the first full calendar year thereafter. Subsequent annual reports are due by February 28th following the calendar year covered. The annual reports must be prepared in accordance with the “Water Recycling Funding Program Guidelines.” (d) The annual reports must include the following: i. The planned total recycled water deliveries from the Recipient’s funding application/user- connection schedule; ii. A breakdown of the actual total annual recycled water deliveries by month and type of use, presented in a table showing month vs. type of use. If the Recipient supplements recycled water deliveries with potable or fresh water, the annual report must include the monthly and total amounts; iii. The Project’s operation and maintenance costs for the year; iv. The costs to Recipient’s end users of recycled water vs. potable/fresh water during the year; and v. If the Project’s actual total recycled water deliveries are less than the planned total recycled water deliveries, the Recipient must provide a brief discussion on its progress toward achieving the remaining system capacity. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 8 of 24 Exhibit A A.7 PROJECT COMPLETION REPORT. (a) The Recipient must submit a Project Completion Report to the Division with a copy to the appropriate Regional Water Board / District Office on or before the due date established by the Division and the Recipient at the time of final project inspection. The Project Completion Report must include the following: i. Description of the Project, ii. Description of the water quality problem the Project sought to address, iii. Discussion of the Project’s likelihood of successfully addressing that water quality problem in the future, and iv. Summary of compliance with applicable environmental conditions. (b) If the Recipient fails to submit a timely Project Completion Report, the State Water Board may stop processing pending or future applications for new financial assistance, withhold reimbursements under this Agreement or other agreements, and begin administrative proceedings. A.8 FINAL PROJECT INSPECTION AND CERTIFICATION. Upon completion of the Project, the Recipient shall provide for a final inspection and shall certify that the Project has been completed in accordance with this Agreement, any final plans and specifications submitted to the State Water Board, and any amendments or modifications thereto. If the Project involved the planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, or other professionals, the final inspection and certification shall be conducted by a California Registered Civil Engineer or other appropriate California registered professional. The results of the final inspection and certification shall be submitted to the Project Manager City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 9 of 24 Exhibit B EXHIBIT B – FUNDING AMOUNTS B.1 ESTIMATED REASONABLE COST AND PROJECT FUNDS. The estimated reasonable cost of the total Project is set forth on the Cover Page of this Agreement, and is greater than or equal to the funding anticipated to be provided by the State Water Board under this Agreement. Subject to the terms of this Agreement, the State Water Board agrees to provide Project Funds not to exceed the amount of the Project Funding Amount set forth on the Cover Page of this Agreement. B.2 RECIPIENT CONTRIBUTIONS. The Recipient must pay any and all costs connected with the Project including, without limitation, any and all Project Costs. If the Project Funds are not sufficient to pay the Project Costs in full, the Recipient must nonetheless complete the Project and pay that portion of the Project Costs in excess of available Project Funds, and shall not be entitled to any reimbursement therefor from the State Water Board. B.3 VERIFIABLE DATA. Upon request by the Division, the Recipient must submit verifiable data to support deliverables specified in the Scope of Work. The Recipient’s failure to comply with this requirement may be construed as a material breach of this Agreement. B.4 BUDGET COSTS (a) Estimated budget costs are contained in the Summary Project Cost Table below: LINE ITEM TOTAL ESTIMATED COST PROJECT FUNDING AMOUNT Construction $38,780,000 $38,780,000 Pre-Purchased Material/Equipment $4,680,000 $4,680,000 Purchase of Land/Easements $1,000,000 $1,000,000 Change Order Contingency $2,340,000 $2,340,000 Force Account $0.00 $0.00 Allowances (Soft Costs) $6,970,000 $6,970,000 TOTAL $53,770,000 $53,770,000 The Division’s Final Budget Approval and related Form 259 and Form 260 will documents the a more detailed budget of eligible Project Costs and Project funding amounts. Project Costs incurred prior to June 5, 2018, are not eligible for the Proposition 68 grant funding under this Agreement. Project Costs incurred prior to July 12, 2021, are not eligible for the Budget Act of 2021 grant funding under this Agreement. Indirect Costs are ineligible for funding under this Agreement. The Recipient is prohibited from requesting disbursement amounts that represent Recipient’s mark-ups to costs invoiced or otherwise requested by consultants or contractors. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 10 of 24 Exhibit B FINAL BUDGET APPROVAL Whereas the Division has approved the final budget form submitted by the Recipient and issued a Final Budget Approval letter for the Project on November 27, 2023 the Final Budget Approval is incorporated as set forth herein: Table 1: Approved Construction Bid Amount CONTRACTOR AMOUNT BID APPROVED COSTS Ghilotti Construction Co. $45,942,805 $45,942,805 Table 2: Approved Final Budget PROJECT COST TABLE TYPE OF WORK APPROVED BUDGET1 A. Construction Ghilotti Construction Co. $ 45,942,805 B. Pre-Purchased Material/Equipment $ 0 C. Real Property/Easement Acquisition $ 0 D. Change Order Contingency2 $ 707,195 E. Force Account $ 0 F. Allowances $ 7,120,000 TOTAL (Subtotal A+B+C+D+E+F) $53,770,000 1Cost adjustments between lines of the final approved budget may only be requested as part of the final reimbursement request. 2 The Contingency line item may not be increased above the approved Contingency during construction. At DFA’s discretion, any unclaimed costs may also be used towards change orders as part of the final reimbursement request. The change order approval may not: (1) increase the maximum amount of the financing agreement, (2) increase the term of the financing agreement, or (3) result in a substantial change in the Project scope. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 11 of 24 Exhibit B 2 – PROJECT ELIGIBILITY DETERMINATION The eligibility determinations and conditions of approval identified below are based on the review of:  Stamped and Signed Final Plan and Specifications (P&S) received August 16, 2023 dated April 10, 2023  Addenda Nos. 1,2,3,4,5 issued May 11, 2023, June 2, 2023, June 6, 2023, June 13, 2023, June 16, 2023. The eligibility determination for the bid items shown in the schedule of values provided by the Recipient are as follows: Table 3: Eligibility Determination Agreement Bid Item Description Percent Eligibility 1 Mobilization 100% 2 Traffic Control 100% 3 Temporary Facilities and Controls (per Section 01500) 100% 4 Temporary Excavation Support - WWTP 100% 5 Dewatering - WWTP 100% 6 Dechlorination Structure (Area 60) 100% 7 Buried Sludge Piping 100% 8 Packaged Water Treatment System Rehabilitation 100% 9 Backwash Pump Station (Area87) 100% 10 Carousel Pump Station (Area89) 100% 11 PAU 100% 12 Yard Piping - WWTP 100% 13 Electrical Work - WWTP 100% 14 Instrumentation and Controls - WWTP 100% 15 Start Up and Commissioning - WWTP 100% 16 All Other Work - WWTP 100% 17 Temporary Excavation Support - WTP 100% 18 Dewatering - WTP 100% 19 Recycled Water Storage Tank 100% 20 Recycled Water Pump Station 100% 21 Excavations and Embankments WTP 100% 22 Yard Piping - WTP 100% 23 21" Sewer Replacement 100% 24 Concrete Manholes 100% 25 Electrical Work - WTP 100% 26 Instrumentation and Controls - WTP 100% 27 Start Up and Commissioning - WTP 100% 28 All Other Work - WTP 100% 29 Temporary Excavation Support - Distribution System 100% 30 Dewatering - Distribution System 100% City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 12 of 24 Exhibit B Bid Item Description Percent Eligibility 31 4" - 18" Diameter PVE Pipeline in Trench 100% 32 12" Diameter Ductile Iron Pipeline 100% 33 Micro tunnel Crossing 100% 34 Railroad Crossing 100% 35 Pipeline Valves, Meters, Service Lines, and Blow-off Assembles 100% 36 Pedestrian Bridge 100% 37 Startup and Commissiong - Distribution System 100% 38 All Other Work - Distribution System 100% 39 Demobilization 100% Eligibility Determination Conditions of Approval are as follows: 1. Necessary insurance directly related to the construction contract and extending throughout the period of the construction contract will be eligible for financing. This includes builder risk insurance, public liability insurance, fire, and Project specific insurance. 2. Earthquake insurance and “Act of God” insurance are ineligible for funding. 3. Asphalt pavement, corresponding improvements, and excavation and refill materials due to trenching are limited to replacement of the trench width plus one foot on each side of the trench disturbed due to the construction work of the subject contract only. Full lane width paving or slurry seal is eligible only if required by ordinance or code. 4. The cost of local permits and licenses other than those issued by the Recipient are eligible for financing. 5. Review of the P&S by the Division is conducted to determine eligibility and administrative compliance with the Policy. Issuance of the FBA does not relieve the Recipient and the design engineer of their legal liability for the adequacy of the design. B.5 LINE ITEM ADJUSTMENTS Upon written request by the Recipient, the Division may adjust the line items of the Summary Project Cost Table budget at the time of Division’s Final Budget Approval. Upon written request by the Recipient, the Division may also adjust the line items of the Summary Project Cost Table as well as the detailed budget at the time of Recipient’s submittal of its final claim. Any line item adjustments to the Summary Project Cost Table budget that are due to a change in scope of work will require an Agreement amendment. The sum of adjusted line items in both the Summary Project Cost Table and the detailed budget must not exceed the Project Funding Amount. The Division may also propose budget adjustments. Under no circumstances may the sum of line items in the Final Budget Approval exceed the Project Funding Amount. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 13 of 24 Exhibit B B.6 REIMBURSEMENT PROCEDURE Except as may be otherwise provided in this Agreement, reimbursements will be made as follows: 1. Upon execution and delivery of this Agreement by both parties, the Recipient may request immediate reimbursement of any eligible incurred planning and design allowance costs through submission to the State Water Board of the Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed. 2. The Recipient must submit a Reimbursement Request for costs incurred prior to the date this Agreement is executed by the State Water Board no later than ninety (90) days after this Agreement is executed by the State Water Board. Late Reimbursement Requests may not be honored. 3. Additional Project Funds will be promptly disbursed to the Recipient upon receipt of Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed by the Recipient for incurred costs consistent with this Agreement, along with receipt of progress reports due under this Agreement. 4. The Recipient must not request reimbursement for any Project Cost until such cost has been incurred and is currently due and payable by the Recipient, although the actual payment of such cost by the Recipient is not required as a condition of Reimbursement Request. Supporting documentation (e.g., receipts) must be submitted with each Reimbursement Request. The amount requested for Recipient’s administration costs must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Reimbursement of Project Funds will be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed Reimbursement Request. Upon request by the Division, supporting documents for professional and administrative services must include the employees’ names, classifications, labor rates, hours worked, and descriptions of the tasks performed. Reimbursement Requests submitted without supporting documents may be wholly or partially withheld at the discretion of the Division. 5. The Recipient must spend Project Funds within 30 days of receipt. If the Recipient earns interest earned on Project Funds, it must report that interest immediately to the State Water Board. The State Water Board may deduct earned interest from future reimbursements. 6. The Recipient must not request a reimbursement unless that Project Cost is allowable, reasonable, and allocable. 7. Notwithstanding any other provision of this Agreement, no reimbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, policies, or regulations. Notwithstanding any other provision of this Agreement, the Recipient agrees that the State Water Board may retain an amount equal to ten percent (10%) of the Project Funding Amount until Project Completion. Any retained amounts due to the Recipient will be promptly disbursed to the Recipient, without interest, upon Project Completion. Except as follows, construction costs and disbursements are not available until after the Division has approved the final budget form submitted by the Recipient. The Deputy Director of the Division may authorize the disbursement of up to ten percent (10%) of Project Funds for the reimbursement of eligible construction costs and pre-purchased materials prior to Division approval of the final budget form submitted by the Recipient. All other construction costs are not eligible for reimbursement until after the Division has approved the final budget form submitted by the Recipient. Construction costs incurred prior to the Eligible Construction Start Date are not eligible for reimbursement. B.7 REVERTING FUNDS AND DISENCUMBRANCE In the event the Recipient does not submit Reimbursement Requests for all funds encumbered under this Agreement timely, any remaining funds revert to the State. The State Water Board may notify the Recipient that the project file is closed, and any remaining balance will be disencumbered and unavailable for further use under the Agreement. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 14 of 24 Exhibit C EXHIBIT C – GENERAL TERMS AND CONDITIONS 2019-NOV GENERAL TERMS AND CONDITIONS 2019-NOV is incorporated by reference and is posted at https://www.waterboards.ca.gov/water_issues/programs/grants_loans/general_terms.html City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 15 of 24 Exhibit D EXHIBIT D – SPECIAL CONDITIONS D.1 DEFINITIONS (a) Notwithstanding Exhibit C, the following terms have no meaning for the purposes of this Agreement:  Work Completion  Work Completion Date Each capitalized term used in this Agreement has the following meaning:  “Allowance” means an amount based on a percentage of the accepted bid for an eligible project to help defray the planning, design, and construction engineering and administration costs of the Project.  “Authorized Representative” means the duly appointed representative of the Recipient as set forth in the certified original of the Recipient’s authorizing resolution that designates the authorized representative by title.  “Completion of Construction” means the date, as determined by the Division after consultation with the Recipient, that the work of building and erection of the Project is substantially complete, and is established on the Cover Page of this Agreement.  “Eligible Construction Start Date” means the date set forth on the Cover Page of this Agreement, establishing the date on or after which construction costs may be incurred and eligible for reimbursement hereunder.  “Eligible Work Start Date” means the date set forth on the Cover Page of this Agreement, establishing the date on or after which any non-construction costs may be incurred and eligible for reimbursement hereunder.  “Enterprise Fund” means the enterprise fund of the Recipient in which Revenues are deposited.  “Event of Default” means, in addition to the meanings set forth in Exhibit C, the occurrence of any of the following events: a) A material adverse change in the condition of the Recipient, the Revenues, or the System, which the Division reasonably determines would materially impair the Recipient’s ability to satisfy its obligations under this Agreement. b) Failure to operate the System or the Project, unless the Division has given its approval for such non-operation; c) The occurrence of a material breach or event of default under any Recipient obligation that results in the acceleration of principal or interest or otherwise requires immediate prepayment, repurchase or redemption.  “Final Budget Approval (FBA)” means the Division-approved final budget for the Project, as set forth in Exhibit B. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 16 of 24 Exhibit D  “Guidelines” means the State Water Board’s “Water Recycling Funding Program Guidelines” in effect as of the execution date of this Agreement. “Indirect Costs” means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the Project (i.e., costs that are not directly related to the Project). Examples of Indirect Costs include, but are not limited to: central service costs; general administration of the Recipient; non-project-specific accounting and personnel services performed within the Recipient organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non-project-specific facilities; tuition and conference fees; generic overhead or markup; and taxes.  “Initiation of Construction” means the date that notice to proceed with work is issued for the Project, or, if notice to proceed is not required, the date of commencement of building and erection of the Project.  “Net Revenues” means, for any Fiscal Year, all Revenues received by the Recipient less the Operations and Maintenance Costs for such Fiscal Year.  “Operations and Maintenance Costs” means the reasonable and necessary costs paid or incurred by the Recipient for maintaining and operating the System, determined in accordance with GAAP, including all reasonable expenses of management and repair and all other expenses necessary to maintain and preserve the System in good repair and working order, and including all reasonable and necessary administrative costs of the Recipient that are charged directly or apportioned to the operation of the System, such as salaries and wages of employees, overhead, taxes (if any), the cost of permits, licenses, and charges to operate the System and insurance premiums; but excluding, in all cases depreciation, replacement, and obsolescence charges or reserves therefor and amortization of intangibles.  “Revenues” means, for each Fiscal Year, all gross income and revenue received or receivable by the Recipient from the ownership or operation of the System, determined in accordance with GAAP, including all rates, fees, and charges (including connection fees and charges) as received by the Recipient for the services of the System, and all other income and revenue howsoever derived by the Recipient from the ownership or operation of the System or arising from the System, including all income from the deposit or investment of any money in the Enterprise Fund or any rate stabilization fund of the Recipient or held on the Recipient’s behalf, and any refundable deposits made to establish credit, and advances or contributions in aid of construction.  “System” means all wastewater, water recycling, and/or potable water collection, pumping, transport, treatment, storage, and/or disposal facilities, including land and easements thereof, owned by the Recipient, including the Project, and all other properties, structures or works hereafter acquired and constructed by the Recipient and determined to be a part of the System, together with all additions, betterments, extensions or improvements to such facilities, properties, structures, or works, or any part thereof hereafter acquired and constructed.  “Useful Life” means the economically useful life of the Project beginning at Project Completion and is set forth in Exhibit A. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 17 of 24 Exhibit D D.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES. The Recipient has not made any untrue statement of a material fact in its application for this financial assistance or omitted to state in its application a material fact that makes the statements in its application not misleading. The Recipient agrees to fulfill all assurances, declarations, representations, and commitments in its application, accompanying documents, and communications filed in support of its request for funding under this Agreement. The execution, delivery, and performance by Recipient of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the date of execution of this Agreement by the Recipient, or result in any breach or default under any contract, obligation, indenture, or other instrument to which Recipient is a party or by which Recipient is bound as of the date of execution of this Agreement by the Recipient. Except as set forth in this paragraph, there are, as of the date of execution of this Agreement by the Recipient, no pending or, to Recipient’s knowledge, threatened actions, claims, investigations, suits, or proceedings before any governmental authority, court, or administrative agency which materially affect or, if resolved unfavorably to the Recipient, would materially affect the financial condition or operations of the Recipient, the Revenues, and/or the Project. There are no proceedings, actions, or offers by a public entity to acquire by purchase or the power of eminent domain any of the real or personal property related to or necessary for the Project. The Recipient is duly organized and existing and in good standing under the laws of the State of California. Recipient must at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority. Within the preceding ten years, the Recipient has not failed to demonstrate compliance with state or federal audit disallowances. Any financial statements or other financial documentation of Recipient previously delivered to the State Water Board as of the date(s) set forth in such financial statements or other financial documentation: (a) are materially complete and correct; (b) present fairly the financial condition of the Recipient; and (c) have been prepared in accordance with GAAP. Since the date(s) of such financial statements or other financial documentation, there has been no material adverse change in the financial condition of the Recipient, nor have any assets or properties reflected on such financial statements or other financial documentation been sold, transferred, assigned, mortgaged, pledged or encumbered, except as previously disclosed in writing by Recipient and approved in writing by the State Water Board. The Recipient is current in its continuing disclosure obligations associated with its material debt, if any. The Recipient has no conflicting or material obligations, except as set forth in this paragraph. The Recipient has sufficient real or personal property rights necessary for the purposes of this Agreement, not subject to third party revocation, which rights extend at least to the Records Retention End Date of this Agreement, except as disclosed to the State Water Board. The Recipient has disclosed to the State Water Board all proceedings, actions, or offers of which the Recipient has knowledge or belief that may in any way affect the Recipient’s ability to access or legally possess all of the property necessary for the purpose of this Agreement, including any proceedings, actions, or offers to lease, purchase, or acquire by eminent domain any of the real or personal property related to or necessary for the Project. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 18 of 24 Exhibit D The Recipient and its principals, contractors, and subcontractors, to the best of the Recipient’s knowledge and belief, are not presently debarred, suspended, proposed for debarment, declared ineligible, or otherwise excluded from participation in any work overseen, directed, funded, or administered by the State Water Board program for which this funding is authorized; nor have they engaged or permitted the performance of services covered by this Agreement from parties that are debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen, directed, funded, or administered by the State Water Board program for which this funding is authorized. D.3 ACKNOWLEDGEMENTS The Recipient must include the following acknowledgement in any document, written report, or brochure to be shared with the general public prepared in whole or in part pursuant to this Agreement: “Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board. The contents of this document do not necessarily reflect the views and policies of the foregoing, nor does mention of trade names or commercial products constitute endorsement or recommendation for use.” D.4 RATES, FEES, AND CHARGES The Recipient must, to the extent permitted by law, fix, prescribe and collect rates, fees and charges for the System during each Fiscal Year which are reasonable, fair, and nondiscriminatory and which will be sufficient to generate Revenues in the amounts necessary to cover Operations and Maintenance Costs, and must ensure that Net Revenues are in an amount necessary to meet its obligations under this Agreement. The Recipient may make adjustments from time to time in such fees and charges and may make such classification thereof as it deems necessary, but shall not reduce the rates, fees and charges then in effect unless the Net Revenues from such reduced rates, fees, and charges will at all times be sufficient to meet the requirements of this section. D.5 [RESERVED.] D.6 SPECIAL CONDITIONS Technical Conditions: The Recipient must receive approval from the Executive Officer of the Santa Rosa Regional Water Quality Control Board prior to construction funds being disbursed as required in section IV.D.3 of the Recipients NPDES permit, Order Number R1 2018-0035. Environmental Conditions: 1. The documents identified below are incorporated by reference and the Recipient shall comply with the conditions and recommendations therein: a. The Mitigation Monitoring and Reporting Program adopted by the City of Ukiah on December 15, 2021, for the Project. The Recipient shall implement all mitigation measures therein. b. The Recipient shall make no changes in the Project, construction area, or special conditions, without obtaining the appropriate and necessary prior approval(s) from the State Water Board. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 19 of 24 Exhibit D REPORTING TO THE STATE WATER BOARD 1. In the Recipient’s Progress Reports and the Project Completion Report, submitted pursuant to this Agreement, the Recipient shall include a discussion of the status of its compliance with all environmental measures identified in this Exhibit D, with separate sections clearly labeled with section titles, discussing the status of Recipients compliance with: a. BIO-3 through BIO-6 for biological resources in the MMRP; b. GEO-1 for geology and soils in the MMRP; c. HAZ-1 through HAZ-3 for hazards and hazardous materials in the MMRP; and d. HWQ-1 through HWQ-3 for hydrology and water quality in the MMRP. D.7 RETURN OF FUNDS Notwithstanding any other provision of this Agreement, if the Division determines that an Event of Default has occurred, the Recipient may be required, upon demand, to immediately return to the State Water Board any grant or principal forgiveness amounts received pursuant to this Agreement and pay interest at the highest legal rate on all of the foregoing. D.8 DAMAGES FOR BREACH OF TAX-EXEMPT STATUS In the event that any breach of any of the provisions of this Agreement by the Recipient results in the loss of tax-exempt status for any bonds of the State or any subdivision or agency thereof, or if such breach results in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government by reason of any arbitrage profits, the Recipient must immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach. D.9 OPERATION AND MAINTENANCE The Recipient shall sufficiently and properly staff, operate, and maintain the facility and structures constructed or improved as part of the Project throughout the term of this Agreement, consistent with the purposes of this Agreement. The Recipient assumes all operations and maintenance costs of the facilities and structures; the State Water Board shall not be liable for any cost of such maintenance, management or operation. D.10 INSURANCE The Recipient will procure and maintain or cause to be maintained insurance on the System and Project with responsible insurers, or as part of a reasonable system of self-insurance, in such amounts and against such risks (including damage to or destruction of the Project) as are usually covered in connection with systems similar to the Project. Such insurance may be maintained by a self-insurance plan so long as such plan provides for (i) the establishment by the Recipient of a separate segregated self-insurance fund in an amount determined (initially and on at least an annual basis) by an independent insurance consultant experienced in the field of risk management employing accepted actuarial techniques and (ii) the establishment and maintenance of a claims processing and risk management program. In the event of any damage to or destruction of the Project caused by the perils covered by such insurance, the net proceeds thereof shall be applied to the reconstruction, repair or replacement of the damaged or destroyed portion of the Project. The Recipient must begin such reconstruction, repair or replacement as expeditiously as possible, and must pay out of such net proceeds all costs and expenses in connection with such reconstruction, repair or replacement so that the same must be completed and the Project must be free and clear of all claims and liens. Recipient agrees that for any policy of insurance City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 20 of 24 Exhibit D concerning or covering the construction of the Project, it will cause, and will require its contractors and subcontractors to cause, a certificate of insurance to be issued showing the State Water Board, its officers, agents, employees, and servants as additional insured; and must provide the Division with a copy of all such certificates prior to the commencement of construction of the Project. D.11 CONTINUOUS USE OF PROJECT; NO LEASE, SALE, TRANSFER OF OWNERSHIP, OR DISPOSAL OF PROJECT. The Recipient agrees that, except as provided in this Agreement, it will not abandon, substantially discontinue use of, lease, sell, transfer ownership of, or dispose of all or a significant part or portion of the Project during the Useful Life of the Project without prior written approval of the Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all disbursed Project Funds or all or any portion of all remaining funds covered by this Agreement together with accrued interest and any penalty assessments that may be due. D.12 NOTICE Upon the occurrence of any of the following events, the Recipient must notify the Division’s Deputy Director and Party Contacts by phone and email within the time specified below: (a) Within 24 hours, the Recipient must notify the Party Contacts by phone and by email, and also notify the Division by phone at (916) 327-9978 and by email to CleanWaterSRF@waterboards.ca.gov of any discovery of any potential tribal cultural resource and/or archaeological or historical resource. Should a potential tribal cultural resource and/or archaeological or historical resource be discovered during construction or Project implementation, the Recipient must ensure that all work in the area of the find will cease until a qualified archaeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Division has determined what actions should be taken to protect and preserve the resource. The Recipient must implement appropriate actions as directed by the Division. (b) The Recipient must notify the Division and Party Contacts promptly of the occurrence of any of the following events: i. Bankruptcy, insolvency, receivership or similar event of the Recipient, or actions taken in anticipation of any of the foregoing; ii. Change of ownership of the Project (no change of ownership may occur without written consent of the Division); iii. Loss, theft, damage, or impairment to Project; iv. Events of Default, except as otherwise set forth in this section; v. A proceeding or action by a public entity to acquire the Project by power of eminent domain. vi. Any litigation pending or threatened with respect to the Project or the Recipient’s technical, managerial or financial capacity or the Recipient’s continued existence; vii. Consideration of dissolution, or disincorporation; viii. Enforcement actions by or brought on behalf of the State Water Board or Regional Water Board. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 21 of 24 Exhibit D ix. The discovery of a false statement of fact or representation made in this Agreement or in the application to the Division for this funding, or in any certification, report, or request for reimbursement made pursuant to this Agreement, by the Recipient, its employees, agents, or contractors; x. Any substantial change in scope of the Project. The Recipient must undertake no substantial change in the scope of the Project until prompt written notice of the proposed change has been provided to the Division and the Division has given written approval for the change; xi. Any circumstance, combination of circumstances, or condition, which is expected to or does delay Completion of Construction for a period of ninety (90) days or more; xii. Cessation of all major construction work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more; xiii. Any Project monitoring, demonstration, or other implementation activities required in this Agreement; xiv. Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by state representatives with at least ten (10) working days’ notice to the Division; xv. Any event requiring notice to the Division pursuant to any other provision of this Agreement; xvi. The award of the prime construction contract for the Project; and the initiation of construction of the Project; and xvii. Completion of Construction, and Project Completion. D.13 FRAUD, WASTE, AND ABUSE. The Recipient shall prevent fraud, waste, and the abuse of Project Funds, and shall cooperate in any investigation of such activities that are suspected in connection with this Agreement. The Recipient understands that discovery of any evidence of misrepresentation or fraud related to Reimbursement Requests, invoices, proof of payment of invoices, or other supporting information, including but not limited to double or multiple billing for time, services, or any other eligible cost, may result in an administrative action by the State Water Board and/or referral to the Attorney General’s Office or the applicable District Attorney’s Office for appropriate action. The Recipient further understands that any suspected occurrences of false claims, misrepresentation, fraud, forgery, theft or any other misuse of Project Funds may result in withholding of reimbursements and/or the termination of this Agreement requiring the immediate repayment of all funds disbursed hereunder. A person who knowingly makes or causes to be made any false statement, material misrepresentation, or false certification in any submittal may be subject to a civil penalty, criminal fine, or imprisonment. (Wat. Code, § 13490 et seq.) City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 22 of 24 Exhibit D D.14 DISPUTES. The Recipient must continue with the responsibilities under this Agreement during any dispute. The Recipient may, in writing, appeal a staff decision within 30 days to the Deputy Director of the Division or designee, for a final Division decision. The Recipient may appeal a final Division decision to the State Water Board within 30 days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative to its final resolution, which will be provided to the State Water Board’s Executive Director and each State Water Board Member. Upon the motion of any State Water Board Member, the State Water Board will review and resolve the dispute in the manner determined by the State Water Board. Should the State Water Board determine not to review the final Division decision, this decision will represent a final agency action on the dispute. This provision does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the State Water Board, or any official or representative thereof, on any question of law. This section relating to disputes does not establish an exclusive procedure for resolving claims within the meaning of Government Code sections 930 and 930.4. D.15 STATE CROSS-CUTTERS Recipient represents that, as applicable, it complies and covenants to maintain compliance with the following for the term of the Agreement:  The California Environmental Quality Act (CEQA), as set forth in Public Resources Code 21000 et seq. and in the CEQA Guidelines at Title 14, Division 6, Chapter 3, Section 15000 et seq.  Water Conservation requirements, including regulations in Division 3 of Title 23 of the California Code of Regulations.  Monthly Water Diversion Reporting requirements, including requirements set forth in Water Code section 5103.  Public Works Contractor Registration with Department of Industrial Relations requirements, including requirements set forth in Sections 1725.5 and 1771.1 of the Labor Code.  Volumetric Pricing & Water Meters requirements, including the requirements of Water Code sections 526 and 527.  Urban Water Management Plan requirements, including the Urban Water Management Planning Act (Water Code, § 10610 et seq.).  Urban Water Demand Management requirements, including the requirements of Section 10608.56 of the Water Code.  Delta Plan Consistency Findings requirements, including the requirements of Water Code section 85225 and California Code of Regulations, title 23, section 5002.  Agricultural Water Management Plan Consistency requirements, including the requirements of Water Code section 10852.  Charter City Project Labor Requirements, including the requirements of Labor Code section 1782 and Public Contract Code section 2503. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 23 of 24 Exhibit D  The Recipient agrees that it will, at all times, comply with and require its contractors and subcontractors to comply with directives or orders issued pursuant to Division 7 of the Water Code.  Sustainable Groundwater Management Act (SGMA) Compliance (Wat. Code, § 10720- 10737.8). To the extent required under SGMA, the Recipient shall comply with the following: o If, after July 1, 2017, the Project is or will be located in a non-adjudicated high- or medium-priority California Statewide Groundwater Elevation Monitoring (CASGEM) basin, the Recipient shall ensure that a Groundwater Sustainability Agency (GSA) has formed or an alternative has been submitted to the Department of Water Resources (Wat. Code, § 10735.2 (a)(1)). o If, after January 31, 2020, the Project is or will be located in a non-adjudicated high- or medium-priority CASGEM basin that is subject to critical conditions of overdraft, the Recipient shall ensure that the Project is consistent with an adopted Groundwater Sustainability Plan (GSP). o If, after January 31, 2022, the Project is or will be located in a non-adjudicated high- or medium-priority CASGEM basin that is not subject to critical conditions of overdraft, the Recipient shall ensure that the Project is consistent with an adopted GSP. D.16 RUSSIAN SANCTIONS. On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State Water Board determine Recipient is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this Agreement. The State Water Board shall provide Recipient advance written notice of such termination, allowing Recipient at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State Water Board. The Recipient represents that the Recipient is not a target of economic sanctions imposed in response to Russia’s actions in Ukraine imposed by the United States government or the State of California. The Recipient is required to comply with the economic sanctions imposed in response to Russia’s actions in Ukraine, including with respect to, but not limited to, the federal executive orders identified in California Executive Order N-6-22, located at https://www.gov.ca.gov/wp-content/uploads/2022/03/3.4.22-Russia- Ukraine-Executive-Order.pdf and the sanctions identified on the United States Department of the Treasury website (https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and- country-information/ukraine-russia-related-sanctions).  The Recipient is required to comply with all applicable reporting requirements regarding compliance with the economic sanctions, including, but not limited to, those reporting requirements set forth in California Executive Order N-6-22 for all Recipients with one or more agreements with the State of California with an aggregated value of Five Million Dollars ($5,000,000) or more.  Notwithstanding any other provision in this Agreement, failure to comply with the economic sanctions and all applicable reporting requirements may result in termination of this Agreement. City of Ukiah Project No. C-06-8487-110 Agreement No.: D2101056 Amendment 1 Page 24 of 24 Exhibit D For Recipients with an aggregated agreement value of Five Million Dollars ($5,000,000) or more with the State of California, reporting requirements include, but are not limited to, information related to steps taken in response to Russia’s actions in Ukraine, including but not limited to: 1. Desisting from making any new investments or engaging in financial transactions with Russian institutions or companies that are headquartered or have their principal place of business in Russia; 2. Not transferring technology to Russia or companies that are headquartered or have their principal place of business in Russia; and 3. Direct support to the government and people of Ukraine.