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TALBERT LAKE DIVERSION PROJECT - 2005-06-20
� f Council/Agency Meeting Held: Deferred/Continued to: Approved © Conditionally Approved ❑ Denied Ci le s giaKAture Council Meeting Date: 6/20/2005 Department ID Number: PW 05-042 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION c-; SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: PEN �LOPECBRETH-GRAFTITY ADMINISTRATOR PREPARED BY: PAUL EMERY, ACTING DIRECTOR OF PUBLIC WORKS f SUBJECT: Authorize the Talbert Lake Diversion Project Grant Agreement with he State Water Quality Control Board S tatement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: The City of Huntington Beach applied for and received a $2,326,000 competitive Proposition 13 Grant (Grant) from the State of California (State) for a project that will divert and treat urban runoff into Talbert Lake. A resolution approving the agreement and authorizing a City representative to sign related documents was approved by the City Council. Since that time, the agreement has changed and additional City Council direction is necessary to execute the agreement. Funding Source: The State of California will award $2,326,000 for the Talbert Lake Diversion Project. A 20% grant match amount of $465,200 is required and is being pursued from the Southern California Wetlands Recovery Project (SCWRP) and other available funding sources. Funds will not be expended until sufficient matching funds are identified. Recommended Action: Motion to: Authorize City staff to enter into the Proposition 13 Nonpoint Source Pollution Control Grant Agreement. Alternative Action(s): 1. Direct staff not to enter into the Grant Agreement. This action will result in the forfeiture of $2,326,000 Proposition 13 Grant funds for the Talbert Lake Diversion Project. 2. Direct staff to modify the Grant Agreement by reducing the scope of work. The scope would include only project development up to and including completion of the design phase. Tasks would include the project design, CEQA analysis, monitoring and performance plan, and the preparation of bid packages. This would not include any construction. This action would result in reducing the grant amount to $450,000, and forfeiting $1,876,000. C—�1 REQUEST FOR ACTION MEETING DATE: 6/20/2005 DEPARTMENT ID NUMBER:PW 05-042 Analysis: On August 2, 2004 the City Council authorized the Public Works Director to enter into the Proposition 13 Nonpoint Source Pollution Control Grant Agreement. Since the agreement includes language and terms that expose the City to some liability, additional Council direction is requested. Over the past several months staff has been working with the State Water Board to change certain sections of the agreement, however, no progress has been made. Board attorneys have denied all requests to modify the agreement language. The two items of concern with the agreement are as follows: 1- The Agreement Term According to the agreement, the project completion date is March 31, 2007. This date would be difficult to meet given the scope of work, sensitive environmental area, and the necessary multi-agency agreements that would include maintenance commitments. Staff estimates that project completion could require up to five years. The State has indicated that they will likely grant a one-year extension as the termination date approaches, but they will not consider granting an extension at this time. The City's experience confirms one-year extensions to existing contracts are frequently granted. More specifically, the Proposition 13 Grant approved for the year 2000 was extended with no difficulty; therefore, a minimum one-year extension could be expected. 2. The Termination Clause Condition 29 of the Agreement states that should the City be found to be in violation of the Agreement and fail to correct the violation once notified by the Board, the City may be required to repay funds distributed including interest. The clause reads: "This Grant Agreement may be terminated by written notice...prior to completion of the Project...upon violation by the Grantee of any material provision...after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time... In the event of such termination, the Grantee agrees...to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed..." Although the City has no intention of violating any part of the agreement, concerns exist that the word "violation" is undefined. For example, a project schedule with due dates is included in the agreement. The agreement could be interpreted that missing any project schedule due date, or not completing the entire project by March 31, 2007, would result in a violation. In staffs opinion, this would be unreasonable, however, there is no way to get a conclusive answer to this question in advance. Board staff indicated that they have not required repayment of distributed funds based on a violation of this clause in the past. GAR C A12005105-042 June 20 Lucas(Talbert Lake Grant Agreement).doc -2- 616l2005 4:20 PM REQUEST FOR ACTION MEETING DATE: 6/20/2005 DEPARTMENT ID NUMBER:PW 05-042 Should Council determine the risk is too great to execute the Agreement, another option is to direct staff to modify the Grant award by reducing the scope of work. The Grant can be reduced to include only activities associated with the project up to the construction phase. The award would include the project design, CEQA analysis, monitoring and performance plan, and the preparation of bid packages. This action would result in a reduced Grant amount of approximately $450,000, turning back $1,876,000. Additionally, funding would not be available at this time for the project. It is possible for the project to be submitted under a future grant cycle for construction funding. Background: The Talbert Lake Diversion Project would divert between 3 and 5 million gallons per day (mgd) of urban runoff from the East Garden Grove Wintersburg Channel (EGGWC), through pre-treatment devices, and into a 15-acre area in Central Park for treatment to remove numerous pollutants, thereby significantly reducing pollutant loading to the coastal receiving waters. Project components will include a channel diversion structure, pump station, control system, existing pipeline inspection and rehabilitation, additional conveyance piping, pretreatment, Natural Treatment System (NTS), Talbert Lake rehabilitation, groundwater recharge enhancements, educational exhibit, and monitoring. NTS, the proposed project's primary treatment technology is also referred to as a "constructed wetland". A NTS is an area that receives a constant water source with vegetated coverage and pool areas of varying depths. Following the NTS, the treated urban runoff will be used for the rehabilitation of Talbert Lake and, possibly, Huntington Lake and the Shipley Nature Center. Public Works Commission Action: Not required until project construction is requested. Environmental Status: All required environmental analysis for this project will be accomplished once the project is funded and upon design completion. Attachment(s): City Clerk's Page Number • Description Draft Proposition 13 Nonpoint Source Pollution Control Grant Agreement. G:IR G A12005105-042 June 20 Lucas(Talbert Lake Grant Agreement).doc -3- 6/812005 10:04 AM ATTACHMENT # 1 L1 FOR STII'FE USE ONLY DGS REGISTRATION NO. PROPOSITION 13 NONPOINT SOURCE POLLUTION CONTROL GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CITY OF HUNTINGTON BEACH Natural Treatment System— East Garden Grove Wintersburg Channel Urban Runoff Diversion Project AGREEMENT NO. 04-194-558-0 This Grant Agreement is made between the State of California acting by and through the State Water Resources Control Board, hereafter referred to as the "SWRCB", and City of Huntington Beach, a local public agency, hereafter referred to as the "Grantee". WHEREAS: 1. The following provision(s)authorize the SWRCB to enter into this type of Grant Agreement: WC§79114 (Pr 13 Nonpoint Source) 2. The Grantee has applied for rant and has been determined b the SWRCB to be eligible for rant pp 9 Y 9 g pursuant to applicable State laws and regulations; and 3. The SWRCB, pursuant to the SWRCB Resolution No. 2004-0035, approved on June 17, 2004, has authorized grant funding for the Project hereafter described. NOW, THEREFORE, it is agreed as follows: 1. The Project generally consists of constructing a natural treatment system to divert and treat urban runoff,for the benefit of the Grantee. The Project Representatives during the term of this Agreement will be: State Water Resources Control Board Grantee: City of Huntington Beach Name: Talitha Sweane , Grant Manager Name: Geraldine Lucas, Project Director Address: 3737 Main Street, Suite 500, Riverside, Address: 2000 Main Street, Huntington Beach, CA CA 92501 92648 Phone: 951 782-3219 Phone: 714 375-5077 Fax: 951 686-8113 Fax: 714 375-1573 e-mail: Tsweaney@rb8..swrcb.ca.gov e-mail: glucas@surfci -hb.or Direct all inquiries to: State Water Resources Control Board Grantee: City of Huntington Beach Section/Unit: Division of Financial Assistance Section/Unit: Attention: Pam Nichols, Program Analyst Attention: Grant Contact Address: 1001 1 Street, 16 Floor, Address: Sacramento, CA 95814 Phone: 916 341-5909 Phone: Fax: 916 341-5296 Fax: e-mail: nichp@swrcb.ca.gov e-mail: Each party may change its Project Representative upon written notice to the other party. City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 2 of 16 2. Incorporation of Documents. This Agreement incorporates the following documents: 2.1 Exhibit A, Scope of Work; 2.2 Exhibit B, Invoicing, Budget Detail, and Reporting Provisions; 2.3 Exhibit C, SWRCB General Conditions; and / 2.4 Exhibit D, Grant Program Terms and Conditions. (� 3. The Grantee accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and commitments made by the Grantee in its application, accompanying documents, and communications filed in support of its request for grant funding. Grantee shall comply with and require its contractors and subcontractors to comply with all applicable laws, policies and regulations. 4. The term of the Agreement shall begin on DATE and continue for thirty-six(36)years unless otherwise terminated or amended as provided in the Agreement. HOWEVER,ALL WORK SHALL BE COMPLETED BY March 1, 2007. IN WITNESS THEREOF, the parties have executed this Agreement on the dates set forth below. By: By: Grantee Signature Bill Brown, Chief SWRCB, Division of Administrative Services Grantee Typed/Printed Name Date Reviewed by: Office of Chief Counsel Title and Date Date: City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 3 of 16 EXHIBIT A—SCOPE OF WORK U 1. Quality Assurance Project Plan and Monitoring Plan 1.1 Grantee shall prepare and maintain a Quality Assurance Project Plan (QAPP)that is consistent with the QAPP for the Surface Water Ambient Monitoring Program (SWAMP). The QAPP must be approved by the RWQCB's or SWRCB's Quality Assurance(QA)Officer prior to implementation of any sampling or monitoring activities. No monitoring may occur prior to QAPP approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. 2. Work To Be Performed by Grantee: 2.1 Preliminary Design 2.1.1 Develop a draft Sampling and Analysis plan that complies with the approved QAPP and submit to the Grant Manager for review and comment. At a minimum the Plan will describe? 2.1.2 Finalize the Sampling and Analysis plan incorporating comments and submit to the Grant Manager. No monitoring may occur prior to Monitoring Plan approval. The Grant Manager must approve any changes to the Monitoring Plan prior to implementation. 2.1.3 Monitor the dry weather urban runoff for pollutant loads,flow estimates, and calculate pollution to be prevented or reduced by this project. 2.1.4 Conduct soil analysis with geo-technical soil borings to determine soil properties and infiltration rates. 2.1.5 Conduct field reviews and research to refine soil excavation estimates, habitat types, conveyance works, and other items. 2.1.6 Analyze data and findings and prepare a preliminary design for the treatment train. 2.1.7 Prepare a Preliminary Design Report summarizing all findings and submit to the Grant Manager for review. 22 Design—Construction Specifications 2.2.1 Design a channel diversion structure that will divert up to three (3) mgd of dry weather urban runoff flows; pump station, system controls, pre-treatment components, conveyance piping, approximately fifteen (15)acres Natural Treatment System, and groundwater discharge enhancements. 2.2.2 Prepare draft design drawings and construction specifications and submit to the Grant Manager ................................ for review and approval (does someone else n6 tci review artd approve?) 2.2.3 Finalize the draft design drawings and construction specifications and submit to the Grant Manager. 2.2.4 Obtain signed Operation and Maintenance Agreements with outside agencies. 2.2.5 Obtain Notice to Proceed from Grant Manager. 2.3 Construction City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 4 of 16 2.3.1 Conduct pre and post photo documentation and submit to the Grant Manager. 2.3.2 Construct all components; including the diversion structure, pump station, pre-treatment devices, conveyance piping, system controls, Natural Treatment System, and groundwater recharge enhancements per approved Plans and Specifications. 2.3.3 Prepare"As-Built"drawings and submit to the Grant Manager. 2.3.4 Conduct pre and post construction phase monitoring..(WQ Morals"covered"in WQ sarnpl ng,and Performance Monitoring?) 2.4 Construction Management and Inspection 2.4.1 Perform on-site construction inspection, testing, and quality control. 2.4.2 Conduct monthly construction progress meetings with the contractor, City inspector, resident engineer, and other staff as appropriate. 2.4.3 Coordinate, log and transmit construction documents,including items such as material submittals, shop drawings, requests for information, and change orders. 2.4A Prepare final project file for the construction phase and turn over to Operations and Maintenance staff. 2.5 Water Quality Sampling and Performance Monitoring 2.5.1 Conduct pre and post construction water quality monitoring in addition to upstream and effluent flows from the Natural Treatment System, 2.5.2 Collect sample and analyze sediments for disposal options and water quality during the design phase. (Pro<'cilnstru;ctjon monitoring?) 2.5.3 Sample in-channel water quality upstream and after the wetlands treatment system construction. (Post construction monitoring?) 2.5.4 Remove and measure the volume of all trash and debris from the debris collection system. 2.5.5 Prepare and submit a Performance Monitoring Report. 2.6 Education 2.5.4 Install a permanent educational exhibit in Huntington Beach's Central Park adjacent to the treatment wetland in a high pedestrian traffic area to educate visitors on the project. (has this already been designed?) City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 5 of 16 TABLE OF SUBMITTALS [this is aa,sanrt} f edd as needed] �� f Item DESCRIPTION GRANT DUE DATE FUNDING -- Project Administration $x -- EXHIBIT A—SCOPE OF WORK 1.0 QUALITY ASSURANCE PROJECT PLAN $x -- 1.1 Quality Assurance Project Plan -- (date) 2.0 WORK TO BE PERFORMED BY GRANTEE -- -- 2.1 Preliminary Design $x- - - 2.1.1 Draft Sampling and Analysis Plan -- (date) 2.1.2 Final Sampling and Analysis Plan -- (date) 2.1,6 Preliminary Design -- (date) 2.1.7 Preliminary Design Report -- (date) 2.2 Design—Construction Specifications $x- -- 2,2.2 Draft Design and Construction Specifications $x (date) 2.2.3 Final Design and Construction Specifications $x (date) 2.2A Signed Operation and Maintenance Agreements $x (date) 2.2.5 Notice to Proceed $x (date) 2.3 Construction -- - - 2,3.1 Pre-and Post Photo Documentation -- (date) 2.3.2 ?? -- (date) 2.3.3 "As-Built' Drawings -- (date) 2.3.4 ?? -- (date) 2.4 Construction Management and Inspection $x -- 2.4.1 ?? -- {date} 2.4.2 ?? - - (date) 2.4.3 Construction Documents - - (date) 2.4.4 Final Project Report - - (date) 2.5 Water Quality Sampling and Performance Monitoring $x -- 2.5.5 Performance Monitoring Report -- (date) 2.6 Education $x -- 2.6.1 ?? $x -- EXHIBIT B—INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 5.0 STANDARD REQUIREMENTS CERTIFICATION FORM (as needed) 6.1 Progress Reports by the tenth (10 )of the month following the end of -- quarterly the calendar quarter(March, June, September, and December) City of Huntington Beach M SWRCB Grant Agreement No. 04-194-558-0 [n} V Page 6 of 16 Item DESCRIPTION GRANT DUE DATE FUNDING 6.2 Expenditure/Invoice Projections -- Ea May/Oct 6.3 Grant Summary Form -- Day 90 6.4 Natural Resource Projects Inventory project survey form -- Before final invoice EXHIBIT C—SWRCB GENERAL CONDITIONS #6 Copy of final CEQAINEPA documentation -- (date) #21 Contract documentation &signed cover sheets for all permits -- (date) EXHIBIT D—GRANT PROGRAM TERMS &CONDITIONS #1 Project Assessment and Evaluation Plan (PAEP) -- (date) Total Grant Funds: $x -- EXHIBIT B— INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 1. Invoicing 1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the Program Analyst on a (choose one)enonthlyfquarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit. Three(3)copies of the invoice shall be submitted to the SWRCB's Grant Manager. The addresses for submittal are: Pam Nichols, rog�a�rr `al # ' ' Tali)ha Sweaney, Grant Manager SWRCB DiulsQ arartcial Assistance Santa And Regional Water Quality Control Board 1001 . i Street: .Fior 3737 MainStreet "Suite 500 :r Sari amento;CA 95 'l4, _.' Riverside, CA 9,250.1. 1.2 Payment of any invoice shall be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice. Invoices received by the SWRCB that are not consistent with the approved format will be cause for an invoice to be disputed. In the event of an invoice dispute, the SWRCB's Grant Manager will notify the Grantee by initiating an"Invoice Dispute Notification"form. Payment will not be made until the dispute is resolved and a corrected invoice submitted. Failure to use the address exactly as provided above may result in return of the invoice to the Grantee. Payment shall be deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United States mail. All invoices must be approved by the SWRCB's Grant Manager. 1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, rules, or regulations, or which may require any rebates to the Federal Government, or any loss of tax-free status on state bonds, pursuant to any Federal statute or regulation. 1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain an amount equal to ten percent(10%)of the grant amount specified in this Agreement until completion of the Project to the reasonable satisfaction of the SWRCB. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 1.5 The invoice shall contain the following information: 1.5.1 The word "INVOICE"and a sequential invoice number should appear in a prominent location at the top of the page(s); 1.5.2 Printed name of the Grantee; City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 7 of 16 1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code0/ 0 1.5.4 The date of the invoice; 1.5.5 The number of the Agreement upon which the claim is based; and 1.5.6 An itemized account of the work for which the SWRCB is being billed; C•� 1.5.6.1 The time period covered by the invoice, i.e., the term "from" and"to'; 1.5.6.2 A brief description of the work performed; 1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices must be itemized based on the categories specified in the Budget. The amount claimed for salariesiwageslconsultant fees must also be explained; i.e., hours or days worked times the hourly or daily rate =the total amount claimed; 1.5.6.4 The total amount due; this should be in a prominent location in the lower right-hand portion of the last page and clearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include all costs incurred by the Grantee under the terms of this Agreement; and 1.5.7 Original signature and date (in ink)of Grantee or its authorized representative. 1.5.8 Final invoice shall be clearly marked 'FINAL INVOICE" and submitted NO LATER THAN APRIL 1, 20XX. rr/sr¢rra�/.�rrirrerrririr.Usi,,►i.�i.��.sir/rFm/s1r1Y1s1r�rir�r/r�o�ririririrf�rfrlrfrrrr..risisisis/rirreirirrr�rrruir'i®isiiiririmi®i®rri®irrrir�oisio1r1r1r1rfslrfrulrlY�Ylr��rs�m® r lnsarf One-fime Advance Paym®nt Request belowv forP,�Ap 93 lVPS, WPP, or CNPS grants,:ff applicable: #e �fI///Nl6M/iW/d'YIp'f�P"I�'fO'fbY.'4/.T/.�/JP/a'.�F.�F.�l@'F.Y/d//Y/Y/I1YY!/Y/!YY'®'YYf!'f®'f6f/frfrYlFflfJYfrl.R/M'F.�IYINFAY/!/9fYYIfN/�Y/I'/IS'I///rf/fYfr/r/JJl/1/®l0/®/�'/X/�f//�111/I1r/Y/nI/I1//.I/%r///!��Yl./I.MIA 1.6 One-time Advance Payment Request. The Grantee shall prepare a written justification for a one-time advance payment of up to twenty-five percent(25%)of the total Agreement amount. The written justification shall contain the need for the advance payment and shall justify the advance payment costs by category(i.e., cash flow, equipment or supply purchases, advancing funds to the contractor to begin work). The written justification shall contain a proposed time frame for accounting for the recoupment of the advance payment during the Agreement invoicing process. This recoupment schedule shall be an approved written agreement between the Grantee and the SWRCB's Grant Manager and the agreed upon scheduled recoupment amounts will be deducted from future invoices. The Grantee shall submit the written justification to the SWRCB's Grant Manager for review and approval. After such approval, the Grantee shall do the following: 1.6.1 Submit an invoice for the approved advance payment amount consisting of an original and three (3)copies to the SWRCB's Grant Manager. All subsequent invoices must be in the format provided with the advance payment approval. 1.6.2 Set up a separate bank account for the advance payment (even for one-time purchase of equipment or land purchase). 1,6.3 Submit bank statements yearly or at the end of the reconciliation of the advance payment funds depending on the accounting schedule that details any interest earned on the account. All interest earned will be retained by the Grantee and the amount of interest earned will be deducted from the final invoice of the Agreement. If no interest earned, state"No interest earned." 2. Budget Contingency Clause The maximum amount to be encumbered under this Agreement for the 20OX-XX fiscal year ending June 30, 20OX shall not exceed TYPE OUT DOLLAR AMOUNT(ALPHA) ($NUMERIC). [delete ff not applicable] If funds become available from future appropriations by the Legislature for purposes of this Agreement, the maximum amount to be encumbered for this agreement in the 200X= fiscal year ending June 30, 200X shall not exceed TYPE IIW~jLLAR AAMOUNT($XXX.) City of Huntington Beach d SWRCB Grant Agreement No. 04-194-558-0 Page 8 of 16 If the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall be construed as a condition precedent to the obligation of the SWRCB to make any payments under this Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to Grantee to reflect the reduced amount. U City of Huntington Beach I fi SWRCB Grant Agreement No. 04-194-558-0 Page 9 of 16 3. LINE ITEM BUDGET budge#n'e:eds to be coi•npleted in,this r"M-`At PROP. MATCH TOTAL 'r�'rrrrrrrrrrrr,.��..��..,®�.��.�,rrrrrrrr��"rrrrrrrrr�eeriwrrrr,�,,,�,,,�r,,��.,��.,�,r�r,,�,.�,mr�r.,�,rrrrri.�rrasr�s�rrr�rrr ®rrrrrrrr rrr®crrrrrrrrrrrrrrr®rrrrrrrrwrrerwaarrr� Items in boxes below are only shown as examples. Leave out any rfems that do not apply.} f ..ar..asrrr,.�r,.��.�,.��r�rrrrrrrrrrrrrr..�rsrnnabsatr�..��..��..�,.,��r�,��wrr�r�r,.��.�..�..�.rrr,®,r,®rr ,rrrr®rrr�srrrrrrc�,usrr�s,®srrrrrrrrrrrrrrrrrrrrrrirrrrrrrrrrrrrrrrrrrrrrr� Personnel Services (includes benefits) $55,000 $0 $55,000 Class Hours Wage/Hour �rrmrrrrrririrvriririr,.m®iriririrrririririrr®i®iririririririririririririmrrx Principal Engineer ## $XX.XXI iirrir Tr�r I�Z, ,d?.Id".. ; Senior Engineer ## $XX.X4 rirrririrrepr„�riri erea►:�+rri®iririririririrrrrrrrrrrrrrrrrriririwiriwcnuura/ iiris®�.�rwr®rriiiririrrriria►i.�rssnvriri.�v..�rr�.��.�i.�iri®i.®rririri.�iriririririri�r /Theseoeo�le must be em�loed b the Grarrtea �rrrririri ruWi .�i.�ieeirrwirrr,rr riir®i®iri®i r®iriririririruris% (If preparation of CEQAlNEPAlQAPP documents or construction services is done by the Grantee's EE, then costs are included in the hoursttotal) Operating Expenses $ $ $ Includes: rririrrririri rr,�®rrrrrr,�wr�nsirrrr� Travel Expenses (list those that apply} rrrrrrrrrrrrrrrrr��,®,®,�,���.�,r�rr.,�rro� Supplies (less than $5,00001 per item) Equipment($5,000 or greater per item—itemize) Professional and Consultant Services $ $ $ rrrrrrrrrrrrrrrr�+r�sr,r,.�,.��.«�.rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr�.,.p :. .y�rryr„�.,,yYr,Zvi.?�crsr,.wri�rirrrar,�r,.,�rrrrr List categories of services contracted and contracting agency, if known, e.g., lab work, QAPP development, CEQA/NEPA, a��licabie�ermits, et� r�r-rrrrrrrrrririruirrrrrrrrrrrrr,:�,.�rririruirrrrrrrrrrrrrrrrrr r rrrrrrrrrrr rrrrrrrrirrrrrirr rrrrrrrrrrrrrrirrrrrrrrrrrrrrrirrrrrrr�r�-�.r.�. Construction $1,703,000 $0 $1,703,000 General Overhead (XX%) $20,000 $ $20,000 TOTAL $2,326,000 $675,000 $3,001,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s)may be used to defray allowable direct costs up to fifteen percent(15%)of the Agreement total including any amendment(s)thereto. Line item adjustments in excess of fifteen percent (15%)shall require a formal Agreement amendment. 4.2 Procedure to Request an Adjustment. Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s)followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. J City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 u t� Page 10 of 16 5. Standard Requirements Certification Form. Grantee shall provide to the SWRCB's Grant Manager a Standard Requirements Certification Form (to be provided by the SWRCB) certifying that QAPPICEQAINEPAIPERMIT documents have been received by the Grant Manager. Payment for activities that require a completed QAPP or CEQAINEPA documents, or permits, shall not be made to Grantee until the certification form is received by the SWRCB's Grant Manager. 6. Reports. 6.1 Grantee shall submit(choose either)quarterly/monthly progress reports to the SWRCB's Grant Manager by the tenth (10th) of the month (delete if 'monthly,leave if quarterly)following the end of the calendar quarter'(March, June, September; and December). The progress reports shall describe activities undertaken and accomplishments during the(choose either)quarterl onth, milestones achieved, and any problems encountered in the performance of the work under this Agreement. Grantee shall document all contractor activities and expenditures in progress reports. 6.2 Every six(6)months during the work performed under the Scope of Work- Exhibit A section of this Agreement, the Grantee shall develop and submit to their assigned SWRCB's Program Analyst expenditure/invoice projections to enable funding to be available for payment of invoices. 6.3 Grantee shall complete a one(1) page Grant Summary Form tto:IJwww.swrcb.ca.govinps/docsiconsummg ,rrLdoc within three (3) months of the Agreement execution. 6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource Projects Inventory(NRPI) project survey form http://www.ice.ucdavis.edu/nrpi forms/default-asp. A hard copy shall be submitted to the Program Analyst prior to final payment. 6.5 The Grantee agrees to expeditiously provide, during work on the Project and throughout the term of this Agreement, such reports, data, information, and certifications as may be reasonably required by the SWRCB. 7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs and that all costs connected with the Project will be paid by the Grantee on a timely basis. 8. Audit Disallowances. The Grantee agrees it shall return any audit disallowances to the SWRCB. City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 11 of 16 EXHIBIT C RRZ� SWRCB GENERAL CONDITIONS 1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the SWRCB. 3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the SWRCB. 4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit for a minimum of thirty-six (36) years after final payment, unless a longer period of records retention is stipulated. Grantee agrees to allow the auditor(s)access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Grantee agrees to include a similar right of the State to audit records and interview staff in any contract related to performance of this Agreement. 5. BONDING: Where contractors are used, Grantee shall not authorize construction to begin until each such contractor has furnished a performance bond in favor of the Grantee in the following amounts: faithful performance (100%) of contract value; labor and materials (100%) of contract value. This requirement shall not apply to any contract for less than $20,000.00. 6. CEQA/NEPA: No work that is subject to the California Environmental Quality Act (CEQA) or National Environmental Policy Act (NEPA) may proceed under this Agreement until documents that satisfy the CEQA/NEPA process are received by the Grant Manager. 7. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee 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 Grantee agrees that, to the extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for the term of this Agreement. 8. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 9. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds, or if such breach shall result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any damages paid by or loss incurred by the state due to such breach. 10. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Chief of the Division of Financial Assistance (Division), or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRCB's Executive Director. The decision of the Division shall be final and conclusive unless,within thirty(30)calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB'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 Grantee shall be afforded an City of Huntington Beach SWRCB Grant Agreement No. 04-194-558-0 Page 12 of 16 opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the SWRCB, or any official or representative thereof, on any question of law. 11. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement. The Grantee further agrees that it will maintain separate Project accounts in accordance with generally accepted accounting principles. 12. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 13. GRANT MODIFICATIONS: The SWRCB may, at any time, without notice to any sureties, by written order designated or indicated to be a "grant modification", make any change in Exhibit A, for the work to be performed under this Agreement so long as the modified work is within the general scope of work called for by this Agreement, including but not limited to changes in the specifications or in the method, manner, or time of performance of work. If the Grantee intends to dispute the change, the Grantee must, within ten (10) days after receipt of a written "grant modification", submit to the SWRCB a written statement setting forth the disagreement with the change. 14. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has been reimbursed by the State under this Agreement. 15. INDEPENDENT ACTOR: The Grantee, and its agents and employees, if any, in the performance of this Agreement, shall act in an independent capacity and not as officers of employees or agents of the SWRCB. 16. INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project area to ascertain compliance with this Agreement. 17. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to transact business in the State of California. The insurance policy shall contain an endorsement specifying that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the SWRCB. In the event of any damage to or destruction of the Project or any larger system of which it is a part, the net proceeds of insurance shall be applied to the reconstruction, repair or replacement of the damaged or destroyed parts of the Project or its larger system. The Grantee shall begin such reconstruction, repair, or replacement as expeditiously as possible and shall pay out of such net proceeds all costs and expenses in connection with such reconstruction, repair or replacement so that the same shall be completed and the larger system shall be free of all claims and liens. 18. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family-care leave, medical-care leave, or pregnancy-disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. 19. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the fj City of Huntington Beach U SWRCB Grant Agreement No. 04-194-558-0 Page 13 of 16 SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project. The Grantee shall promptly notify the SWRCB in writing of any cessation of all major construction work on the Project where such cessation of work is expected to or does extend for a period of 30 days or more and of any circumstance, combination of circumstances, or condition, which is expected to or does delay completion of construction for a period of 90 days or more beyond the estimated date of completion of construction previously provided. 20. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as part of the project throughout the term of this Agreement, consistent with the purposes for which this Grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Grant Manager. For purposes of this Agreement, "operation costs" include direct costs incurred for material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs" include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. 21. PERMITS, CONTRACTING,WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors, outside associates, or consultants required by the Grantee in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during negotiations for this Agreement, or as are specifically authorized by the SWRCB's Grant Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of rights with respect to a default or other matter arising under the Agreement at any time by either party shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension". The Grantee shall not contract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov, Code 4477) The Grantee certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or grantee; 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 statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and d. Have not within a three-year period preceding this application/proposal had one or more public transactions (federal, state or local)terminated for cause or default. 22. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage City of Huntington Beach 01, SWRCB Grant Agreement No. 04-194-558-0 NV Page 14 of 16 provisions of State Labor Code Section 1771 are being met. The Grantee agrees to fulfill its responsibilities under Section 1771.8 of the Labor Code, where applicable. 23. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. 24. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles,the Grantee agrees to: a. Establish an official file for the Project which shall adequately document all significant actions relative to the Project; b. Establish separate accounts which will adequately and accurately depict all amounts received and expended on this Project, including all grant funds received under this Agreement; c. Establish separate accounts which will adequately depict all income received which is attributable to the Project,especially including any income attributable to grant funds disbursed under this Agreement; d. Establish an accounting system which will adequately depict final total costs of the Project, including both direct and indirect costs; e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and f. If Force Account is used by the Grantee for any phase of the Project, establish an account that documents all employee hours, and associated tasks charged to the Project per employee. 25. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement shall be in the public domain. The Grantee may disclose, disseminate and use in whole or in part, any final form data and information received, collected, and developed under this Agreement, subject to appropriate acknowledgement of credit to the SWRCB for financial support. The Grantee shall not utilize the materials for any profit-making venture or sell or grant rights to a third party who intends to do so. 26. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the SWRCB is for administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, design, construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law, the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or liability arising out of any claim or action brought against the SWRCB and/or the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about, or the planning, design, acquisition, installation or construction, of the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3)any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Grantee for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered or made against the SWRCB and/or the State 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. r!� City of Huntington Beach T SWRCB Grant Agreement No. 04-194-558-0 111111 Page 15 of 16 27. SUPPLEMENTAL ENVIRONMENTAL PROJECTS: Grant Funds shall not be used for supplemental environmental projects required by Regional Boards. 28. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee 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 the SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party shall be entitled to such reasonable costs and/or attorney fees as may be ordered by the court entertaining such litigation. 29. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB, upon violation by the Grantee of any material provision after such violation has been called to the attention of the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Grantee to the date of full repayment by the Grantee. 30. TIMELINESS: Time is of the essence in this Agreement. The Grantee shall proceed with and complete the Project in an expeditious manner. 31. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those amounts paid to the State's represented employees under collective bargaining Agreements currently in effect. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the SWRCB. 32. 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 shall continue to have full force and effect and shall not be affected thereby. 33. USEFUL LIFE OF PROJECT: For the purpose of this Agreement, the useful life of any constructed portions of this Project begins upon completion of construction and continues until fifty (50) years thereafter for pipelines and structures and twenty(20)years for all else. 34. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement. 35. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to maintain reasonable progress toward completion of the Project. City of Huntington Beach SWRCB Grant Agreement No.04-194-558-0 » Page 16 of 16 EXHIBIT D Grant Program Terms&Conditions 1. Notwithstanding Exhibit A, the Grantee agrees to submit a monitoring and reporting plan that will do all of the following: a. identifies one or more nonpoint sources of pollution b. describes the baseline water quality of the water body impacted c. describes the manner in which the proposed best management practices or management measures are implemented d. determines the effectiveness of the proposed practices or measures in preventing or reducing pollution. 2. Notwithstanding Exhibit A, the Grantee agrees to submit a report to the SWRCB at the completion of the project that summarizes the completed project and indicates whether the purposes of the project have been met. The report shalt include information collected by the Grantee in accordance with the project monitoring and reporting plan, including a determination of the effectiveness of the best management practices or management measures implemented as part of the project in preventing or reducing nonpoint source pollution. 3. The Grantee hereby certifies that it has not received any funding for this project under Water Code § 79148 — 79148.16 (Proposition 13 Coastal Nonpoint Source). RCA ROUTING SHEET INITIATING DEPARTMENT: Public works SUBJECT: Authorize the Talbert Lake Diversion Project Grant A reement with the State Water Quality Control Board COUNCIL MEETING DATE: June 20, 2005 RCA ATTACHMENTS STATUS Ordinance (wlexhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (wlexhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (wlexhibits if applicable) AttachedNot Applicable ❑ (Signed in full by the City Attome Subleases, Third Party Agreements,reements, etc. Attached Li A raved as to form b Cit Attome Not Applicable Certificates of Insurance (Approved b the City Attome Attached ❑ ( AA Y Y Y) Not Applicable Attached ❑ Fiscal Impact Statement (Unbudget, over $5,000) Not Applicable ❑ Bonds (If applicable) AttachedNot Applicable Staff Report (If applicable) Attached ElNot Applicable Commission, Board or Committee Re ort If applicable Attached LEI El p ( pp ) Not licable Findings/Conditions for Approval and/or Denial Attached pp NotApplicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial City Clerk EXPLANATION FOR RETURN OF ITEM: (BeJow Space For City Clerk's Use Only) RCA Author: G. Lucas