HomeMy WebLinkAbout2004-3981
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RESOLUTION NO. 2004-398
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A GRANT ALLOCATION
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE SAN
BERNARDINO VALLEY MUNICIPAL WATER DISTRICT CONCERNING THE
DISTRIBUTION OF FEDERAL GRANT PROCEEDS RELATED TO THE NORTH
LAKE PROJECT
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City, the Grant Allocation Agreement between the City of
San Bernardino and the San Bernardino Valley Municipal Water District, a copy of which is
attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set
forth at length.
SECTION 2. The authorization to execute the above -referenced agreement is
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
2004-398
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A GRANT ALLOCATION
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE SAN
BERNARDINO VALLEY MUNICIPAL WATER DISTRICT CONCERNING THE
DISTRIBUTION OF FEDERAL GRANT PROCEEDS RELATED TO THE NORTH
LAKE PROJECT
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint
and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
20thday of December , 2004, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA x
LONGVILLE x
x
MCGINNIS
DERRY x
KELLY x
JOHNSON x
MCCAMMACK x
City Clerk
?7
The foregoing resolution is hereby approved this i day of December,
1 2004.
Approved as to
Form and legal content:
James F. Penman, City Attorney
By: zv
f�e� �oens, llff�r,
Sr.O ct� A,iLvrA�
Rikke Van Johnson, Mayor Pro Tem
City of San Bernardino
2004-398
CITY OF SAN BERNARDINO
m►i 1n
SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT
GRANT ALLOCATION AGREEMENT
THIS GRANT ALLOCATION AGREEMENT (this "Agreement") is dated as of
December _, 2004, by and between the City of San Bernardino, a California charter city and a
public body, corporate and politic (the "City"), and the San Bernardino Valley Municipal Water
District, a public water district organized under the laws of the State of California (the
"SBVMWD").
WHEREAS, the City is a recipient of federal grant funds from the United States
Environmental Protection Agency (the "EPA"), which grant funds are referred to as "FY04 City
of San Bernardino Water Infrastructure", in the amount of Four Hundred Eighty -Two Thousand
One Hundred Dollars and 00/cents ($482,100.00) (the "EPA Grant'); and
WHEREAS, the purpose of the EPA Grant is to fund certain consultant work related to the
establishment of the North Lake Reservoir, including the preparation and completion of the
necessary environmental documentation and review as required by the National Environmental
Policy Act ("NEPA") , and to proceed with mitigation measures that may be required by the
NEPA analysis, property acquisition, demolition, and conceptual design and engineering of the
proposed North Lake Reservoir (the "Project') all as further set forth in the EPA Grant Agreement
as set forth below; and
WHEREAS, the City has entered into a standard form EPA Grant Agreement with the
EPA dated July 29, 2004 (the "EPA Grant Agreement'), which EPA Grant Agreement among
other things sets forth certain grant assurances to be adhered to on the part of the City in favor of
the EPA as a condition of receiving the EPA Grant funds in addition to the City requirement for
providing or causing to be provided the funding of the local match requirements between the City
and the EPA; and
WHEREAS, the goals and purposes of the parties to this Agreement will be implemented
and carried out in a manner consistent with the intents thereof through the application of the funds
to be made available in accordance with the EPA Grant consistent with the purposes thereof-, and
WHEREAS, a copy of the EPA Grant Agreement, including the Administrative
Conditions and the Programmatic Conditions, is attached hereto as Exhibit "A" and incorporated
herein by reference; and
WHEREAS, it is anticipated that the SBVMWD will incur certain expenses in
furtherance of the Project, including but not limited to those costs related to the planning and
4937-9922-9952.2
2004-398
design engineering for the proposed Project of which those that are deemed to be eligible Project
costs pursuant to the EPA Grant Agreement shall be submitted for reimbursement to the EPA
provided that all appropriate documentation is submitted by the SBVMWD to comply with the
conditions and assurances required by the EPA Grant and that the SBVMWD provides the funds
from SBVMWD sources for the necessary local match of third party non-federal contributions to
the Project; and
WHEREAS, the City and the SBVMWD seek to provide for the terms and conditions for
the disbursal of the EPA Grant funds from the City to the SBVMWD, and the acceptance of and
the methodology to apply the EPA Grant funds by the SBVMWD as a reimbursement of such
eligible Project expenses to be incurred and paid by the SBVMWD.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the City and the SBVMWD hereby agree as follows:
1. Purpose of Agreement. The parties intend that this Agreement shall be executed
and entered into by and between the City and the SBVMWD in furtherance of the Project and, in
particular, the provisions of, and the grant assurances applicable to, the City from the EPA Grant
Agreement referred to in the Recitals hereof. The acceptance of the Grant Funds by the
SBVMWD for purposes of the planning and engineering design of the Project is hereby
determined by the parties to satisfy in all respects the requirements of the EPA Grant Agreement
for the use and disbursement of EPA Grant funds thereunder. The parties agree to comply in all
respects as to their use of the EPA Grant funds to pay or reimburse for those costs of the Project
which are eligible to be paid or reimbursed from the proceeds of the EPA Grant and in
accordance with the EPA Grant Agreement and further to adhere to all procedures and processes
required pursuant to the Administrative Conditions and the Programmatic Conditions as attached
hereto and to the EPA Grant Agreement.
2. Acceptance of EPA Grant Funds by SBVMWD. The SBVMWD hereby agrees to
accept the EPA Grant funds as may be disbursed to it by the City in accordance with the EPA
Grant Agreement as a reimbursement for those eligible expenses of the SBVMWD related to the
planning and engineering design of the Project, in an amount not to exceed Four Hundred Eighty
Two Thousand One Hundred Dollars and 00/cents ($482,100.00). The SBVMWD agrees that it
shall comply with any and all of the grant assurances and other conditions imposed upon the City
under the EPA Grant Agreement including, but not limited to, the requirement for the payment
of the $394,446 of non-federal third party contributions which shall be deemed to be the local
match obligation to be solely that of the SBVMWD and not an obligation or commitment of the
City.
3. Reimbursement from EPA Grant;.Procedures and Processing. (a) The
SBVMWD shall provide to the City, for the City's transmittal to the EPA, copies of paid
invoices for any expenses incurred by the SBVMWD related to the planning and engineering
design of the Project including the documentation demonstrating that the local match of non-
federal third party contributions as required by the Administrative Conditions of the EPA Grant
Agreement has been satisfied by the SBVMWD. Upon receipt of such copies of paid invoices
4837-9922-9952.2 2
2004-398
and other required supporting documentation from the SBVMWD, the City shall periodically
submit such invoices to the EPA for reimbursement under the EPA Grant Agreement. The
SBVMWD shall submit paid invoices with all required supporting documentation in furtherance
of each request for payments under this Agreement to:
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Attn: City Administrator
(b) All reimbursements to the SBVMWD shall be remitted either directly by the EPA to
the SBVMWD or by the City to the SBVMWD if the EPA requires that the remittances must be
made to the City, for each of the appropriate EPA Grant reimbursement amounts. Upon receipt
of each reimbursement payment received by the SBVMWD from the EPA or the City under this
Agreement, the SBVMWD shall remit to the City, from any legally available source of funds of
the SBVMWD, an amount equal to one-half (1/2) of the reimbursement amount received by the
SBVMWD from the EPA or the City attributable to each such EPA Grant reimbursement
payment. The City shall not be required to submit any additional reimbursement requests
received from the SBVMWD for processing to the EPA for reimbursements under the EPA
Grant Agreement until the SBVMWD is then currently in compliance with each payment
obligation to the City as required by this subsection (b).
(c) Attached hereto as Exhibit "A" is the final executed copy of the Cooperative
Agreement (sometimes referred to herein as the "EPA Grant Agreement') as executed by the
City and the EPA for the EPA Grant as awarded by the EPA to the City. Both the City and the
SBVMWD shall be jointly responsible for compliance with the Administrative Conditions as
attached to the Cooperative Agreement to the extent that the performance thereunder applies to
the respective role of each party under this Agreement. The SBVMWD shall be solely
responsible for compliance with the Programmatic Conditions as attached to the Cooperative
Agreement. With respect to those items contained within the Administrative Conditions for
which the City shall be responsible for the compliance therewith, the SBVMWD agrees to
provide to the City all documents and writings requested by the City to ensure compliance with
all of said Administrative Conditions and Programmatic Conditions. In the event the SBVMWD
is unable to provide the necessary supporting documentation as requested by the City to comply
with the Administrative Conditions or the Programmatic Conditions, the City shall not be
obligated to submit any reimbursement request to the EPA for which the City reasonably
believes does not comply with the EPA Grant Agreement. The SBVMWD shall be responsible
for the retention of all contracts, invoices, cancelled checks, and verification of procurement
practices and MBE/WBE compliance as required by the Administrative Conditions and the
Programmatic Conditions until this Agreement shall terminate as provided in Section 1 I hereof.
(d) In the event it is determined by the EPA whether pursuant to the provisions of
paragraph 2 of the Administrative Conditions regarding compliance with the Single Audit Act or
any other audit conducted by the EPA or any other federal agency to the effect that a
reimbursement as remitted to the SBVMWD was not proper regardless of fault by either or both
the City or the SBVMWD, the SBVMWD shall be financially responsible for the payment of all
4837-9922-9952.2 3
2004-398
accounting, staff, legal and other costs incurred by the SBVMWD to support any contention of
the SBMVWD that any disallowed reimbursement payment was in fact a valid reimbursement
pursuant to the EPA Grant Agreement. The SBVMWD shall have the affirmative duty to
undertake the defense at its expense for any allegations raised by the EPA or any other federal
audit agency challenging any reimbursement or any failure to comply with the provisions of the
EPA Grant Agreement. Any final non -appealable determination by the EPA or any other federal
audit agency that requires any repayment by the City of amounts that are finally determined by
the EPA to be reimbursed which were not in compliance with the EPA Grant Agreement,
including the Administrative Conditions and the Programmatic Conditions, shall be repaid to the
EPA on an equal fifty percent (50%) basis each as between the City and the SBVMWD upon
demand from the EPA.
4. Instruments of Forbearance. The City and the SBVMWD each hereby agree to
deliver, from time to time, to the San Bernardino Regional Water Resources Authority (the
"Authority") an "Instrument of Forbearance" equal to the dollar amount that: (i) the City
receives as a payment from the SBVMWD from those legally available funds of the SBVMWD,
and (ii) of one-half (1/2) of the reimbursement payments that the SBVMWD receives from the
EPA Grant funds. Such Instruments of Forbearance shall recite that the City and the SBVMWD,
as applicable, will forbear the receipt of, and waive any further claims to, the repayment of an
amount equal to that principal amount set forth in each such Instrument of Forbearance for the
applicable portion of their respective Eight Hundred Fifty Thousand Dollars and 00/cents
($850,000.00) loans to the Authority, and such Instruments of Forbearance shall be entered in the
official records of the Authority and shall be noted on the loan balances indicating the amounts
then owed by the Authority to the City and the SBVMWD, respectively. The Authority is not
and shall not be deemed to be a party to this Agreement, but the Authority has approved the
execution of the Concurrence as set forth on the signature pages hereof for the sole purpose of
recognizing the commitments of the Authority to so accept the Instruments of Forbearance and to
duly note the then outstanding loan balances from time to time as to those amounts as may then
be owed by the Authority to the City and the SBVMWD.
5. Time of Essence. Time is strictly of the essence with respect to each and every
term, condition, obligation and provision hereof and failure to timely perform any of the terms,
conditions, obligations or provisions hereof by either party shall constitute a material breach of
and a default under this Agreement by the party so failing to perform.
6. No Waiver. Failure to exercise any right the City may have or be entitled to, in
the event of default by the SBVMWD hereunder, shall not constitute a waiver of such right or
any other right, in the event of a subsequent default by the SBVMWD.
7. Events of Default.
(a) Failure or delay by either party to perform any material term or provision
of this Agreement shall constitute a default under this Agreement; provided, however, that if the
party who is otherwise claimed to be in default by the other party commences to cure, correct or
remedy the alleged default within thirty (30) calendar days after receipt of written notice
4837-9922-9952.2 4
2004-398
specifying such default and diligently pursues such cure, correction or remedy to completion,
such party shall not be deemed to be in default hereunder.
(b) The party that may claim that a default has occurred shall give written
notice of default to the party in default, specifying the alleged default. Delay in giving such
notice shall not constitute a waiver of any default nor shall it change the time of default;
provided, however, the injured party shall have no right to exercise any remedy for a default
hereunder without delivering the written default notice as specified herein.
(c) Any failure or delay by a party in asserting any of its rights and remedies
as to any default shall not operate as a waiver of any default or of any rights or remedies
associated with a default. Except with respect to rights and remedies expressly declared to be
exclusive in this Agreement, the rights and remedies of the parties are cumulative and the
exercise by either party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different times, of any other rights or remedies for the same default or any
other default by the other party.
(d) In the event that a default of either party may remain uncured for more
than thirty (30) calendar days following written notice, as provided above, a "breach" shall be
deemed to have occurred. In the event of a breach, the party who is not in default shall be
entitled to terminate this Agreement by serving written notice of such termination on the other
party and shall be entitled to exercise all other remedies as specified in this Agreement.
(e) Upon default by the SBVMWD in the submission of appropriate
documentation, compliance with applicable processes or procedures and verification of
eligibility for any reimbursement request, the City shall be released from any further obligations
under this Agreement for processing of any additional reimbursement requests on behalf of the
SBVMWD to the EPA pursuant to the EPA Grant Agreement. Any failure by the SBMVWD to
comply with the records retention obligations pursuant to this Agreement and the EPA Grant
Agreement or the failure of SBVMWD to pay the defense costs in connection with any challenge
by the EPA or any other federal audit agency as to the reimbursement requests submitted by the
SBVMWD for processing by the City shall entitle the City to seek damages and specific
performance against the SBVMWD for its failure to fulfill the agreed upon obligations pursuant
to this Agreement. Upon a default by the City in its refusal without cause to submit any proper
reimbursement request received from the SBVMWD to the EPA, the SBVMWD may institute
any proceeding at law or in equity to enforce the obligations of the City under this Agreement to
process and submit such reimbursement request. In any action arising under this Agreement
between the parties hereto, the prevailing party shall be entitled to reimbursement from the other
party of all costs and expenses, including reasonable attorney's fees, in bringing such action.
The costs, salary and expenses of the City Attorney and members of his office in enforcing this
Agreement shall be considered as "attorneys' fees" for purposes of this Section. Any such action
or proceeding must be commenced in the Superior Court for the County of San Bernardino, San
Bernardino District, State of California.
8. Further Assurances. The SBVMWD shall execute any further documents
consistent with the terms of this Agreement, including documents in recordable form, as the City
4837-9922-9952.2 5
2004-398
shall from time -to -time deem necessary or appropriate to effectuate its purposes in entering into
this Agreement.
9. Amendment of Agreement. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written agreement
executed by the SBVMWD and the City.
10. No Assignment. Neither the City nor the Authority shall assign any of their rights
or obligations under this Agreement.
11. Term. This Agreement shall terminate upon all of the following events having
duly occurred: (i) the full and final disbursement of the EPA Grant funds by the City or the EPA
to the SBVMWD, in an amount not to exceed $482,100 as further provided in Section 2 hereof,
(ii) the payments being made by the SBVMWD to the City as required by Section 3(b) hereof,
(iii) the appropriate Instruments of Forbearance having been duly delivered by the City and the
SBVMWD to the Authority pursuant to Section 4 hereof, and (iv) the statute of limitations has
expired for submitting any negative audit findings and the enforcement thereof by the EPA or
any other federal audit agency to the City pursuant to the EPA Grant Agreement.
12. Notices. Notices shall be presented in person or by certified or registered United
States mail, return receipt requested, postage prepaid, or by overnight delivery made by a
nationally recognized delivery service to the addresses noted below. Notice presented by United
States mail shall be deemed effective the second business day after deposit with the United
States Postal Service. This Section shall not prevent giving notice by personal service or
telephonically verified fax transmission, which shall be deemed effective upon actual receipt of
such personal service or telephonic verification. Either party may change their address for
receipt of written notice by so notifying the other party in writing.
TO CITY: City of San Bernardino
300 North "D" Street, Sixth Floor
San Bernardino, California 92418
Attention: City Administrator
Phone: (909) 384-5122
Fax: (909) 384-5138
TO SBVMWD: San Bernardino Valley Municipal
Water District
P.O. Box 5906
San Bernardino, California 92412
Attention: Randy Van Gelder
Phone: (909) 387-9217
Fax: (909) 387-9247
4837-9922-9952.2
2004-398
with a copy to: Lewis Brisbois Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attention: Timothy J. Sabo
Phone: (909) 387-1130
Fax: (909)387-1138
13. Goveming Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any legal action brought under this
Agreement must be instituted in the Superior Court of the County of San Bernardino, State of
California.
14. Entire Agreement. This Agreement constitutes the entire agreement between the
parties and may not be amended without the prior written consent of both of the parties hereto.
This Agreement supersedes all prior negotiation, discussions and previous agreements between
the parties concerning the subject matter herein. The parties intend that this Agreement shall be
the final expression of their agreement with respect to the subjects contained herein and a
complete and exclusive statement of such agreement. No modification, amendment or waiver of
any term of this Agreement shall be binding unless executed in writing by the parties hereto.
15. Severabilitv. Each and every Section of this Agreement shall be construed as a
separate and independent covenant and agreement. If any term or provision of this Agreement or
the application thereof shall be declared invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to circumstances, other than those to
which it is invalid or unenforceable, shall not be affected thereby and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by law.
16. Counterparts. This Agreement may be executed in counterparts, and facsimile
signatures shall be as effective as original signatures. Upon the execution hereof by the
appropriate representative of each of the parties, this Agreement shall be deemed to have been
approved by the governing bodies of each of the parties in accordance with all applicable
provisions of State law.
17. Enforceability of Agreement. This Agreement shall be deemed to be an
enforceable agreement by and between the parties hereto. Either of the parties may bring such
legal or equitable action as may be permitted under the laws of the State of California to enforce
any provision of this Agreement in the manner as provided in Section 7 hereof. The successful
party in any such action to interpret or enforce any provision hereof shall be entitled to receive
from the party against which enforcement is sought all costs associated with such successful
action as further provided in Section 7(e) hereof.
4837-9922-9952.2 7
2004-398
IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of
the date first written above.
CITY:
City of San Bernardino
Rikke Van Johnson, Mayor Pro Tern
City of San Bernardino
ATTEST:
By: a7t4j A U'A'
City Clerk
APPROVED AS TO FORM
AND LEGAL CONTENT:
By:
Cit r1 orney
Se. 'A Giy.Aft+�►`f' SBVMWD:
San Bernardino Valley Municipal Water District
C. Patrick Milligan
President
ATTEST:
By:
Secretary
CONCURRENCE:
The San Bernardino Regional Water Resources Authority is not a party to this
Agreement, but by the execution hereof as set forth below said Authority agrees to comply with
4837-9922-9952.2 8
2004-398
the provisions which are applicable to the Authority as contained in Section 4 of this Agreement
and further agrees to accept the duly executed and delivered Instruments of Forbearance and to
note on the official records of the Authority the outstanding loan balances of the loan as specified
in said Section 4. The Authority shall not be bound by any other provision of this Agreement
nor shall any enforcement of the provisions of Section 4 be sought against the Authority under
any circumstances. The Authority shall not be liable under any legal or equitable basis or
arguments to either the City or the SBVMWD for any failure of the Authority to so comply with
the provisions of said Section 4 nor shall the Authority be required to comply with or be bound
by any other provision of this Agreement or the EPA Grant Agreement.
AUTHORITY:
San Bernardino Regional Water Resources
Authority
By:
Rikke Van ohnson
President Pro Tem
ATTEST:
Secretary
4837-9922-9952,2 9
2004-398
EXHIBIT "A"
EPA Grant Agreement
4837.9922-9952.2 10
2004-398
REM IENTS COPY
xP - 97989101 0 Pace 1
ASSISTANCE ID No.
S14fF�
U.S. ENVIRONMENTAL
DATE OF AWARD
PRG T DOC ID AMENDN
XP - 97989101 0
J��ZED
you
JUL 2 9 2004
x�r
PROTECTION AGENCY
TYPE OF ACTION
MAILING D TE
AUG
New
02004
dT�
Cooperative Agreement
PAYMENT METHOD:
ACHp
Advance
RECIPIENTTYPE:
Send Payment Request to:
Municipal
Grants Management Office, PMD 7
RECIPIENT:
PAYEE:
City of San Bernardino
City of San Bernardino
300 North D street
300 North D street
San Bernardino, CA 92418
San Bernardino, CA 92418
EIN: 95-6000772
PROJECT MANAGER
EPA PROJECT OFFICER
EPA GRANT SPECIALIST
Lori E. Sassoon
Rotten Lawatch
Carolyn Truong
300 North D street
75 Hawthorne Street, WTR-10
Grants Management Office, PMD-7
San Bernardino, CA 92418
San Francisco, CA 94105
E-Mail: Truong.Carolyn®epamail. epa.gov
E-Mail:
E-Mail: Lawatch.Roccena®epamail.epa.gov
Phone: 415-972-3757
Phone: 909-384-5122
Phone: 415-972-3442
PROJECT TITLE AND DESCRIPTION
WATER INFRASTRUCTURE - City of San Bernardino FY04 H2O Infrastructure
This assistance agreement provides full EPA funding in the amount of S482,100. The purpose/objeclive of this award is to support the next phase of the
City of San Bernardino's Lakes and Stream Project, namely work related to the establishment of the North Lake resevoir, such as, finalizing NEPA
documents and getting EPA NEPA approval, property acquistion/demolition and final design and engineering for the North Lake.
BUDGET PERIOD
PROJECT PERIOD
TOTAL BUDGET PERIOD COST
TOTAL PROJECT PERIOD COST
10/01/2004 - 12/31/2005
1 10/01/2004 - 12/31/2005
S876,546.00
S876,546.00
NOTE: The Agreement must be completed in duplicate and the Original returned to the appropriate Grants Management Office listed below,
within 3 calendar weeks after receipt or within any extension of time as may be granted by EPA. Receipt of a written refusal or
failure to return the properly executed document within the prescribed time, may result in the withdrawal of the offer by the Agency.
Any change to the Agreement by the Recipient subsequent to the document being signed by the EPA Award Official, which the
Award Official determines to materially alter the Agreement, shall void the Agreement.
OFFER AND ACCEPTANCE
The United States, acting by and through the U.S. Environmental Protection Agency (EPA), hereby offers
Assistance/Amendment to the City of San Bernardino for 55.00 96 of all approved costs
incurred up to and not exceeding $482 100 for the support of approved budget period effort described in application
(including all application modifications) cited in the Project Title and Description above, signed 05/14/2004
included herein by reference.
ISSUING OFFICE (GRANTS MANAGEMENT OFFICE)
AWARD APPROVAL OFFICE
ORGANIZATION / ADDRESS
ORGANIZATION / ADDRESS
U.S. EPA, Region 9
U S. EPA, Region 9 -
Grants Management Office, PMD-7
Water Division -
75 Hawthorne Street
75 Hawthorne Street
San Francisco. CA 94105
San Francisco, CA 94105
THE UNITED STATES OF AMERICA BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY
SIGNATURE OF A)/ARD OFFICIAL
TYPED NAME AND TITLE J
iY% 2004
Strauss, Director - Water Division
This agreement is subject to applicable U.S. Environmental Protection Agency statutory provisions and assistance regulations. In
accepting this award or amendment and any payments made pursuant thereto. (1) the undersigned represents that he is duty
authorized to act on behalf of the recipient organization, and (2) the recipient agrees (a) that the award is subject to the applicable
provisions of 40 CFR Chapter 1, Subchapter 8 and of the provisions of this agreement (and all attachments), and (b) that
acceptance of any payments constitutes an agreement by the payee that the amounts, if any found by EPA to have been overpaid
will be refu ded or credited in full to EPA.
I BY AND ON BEHALF OF THE DESIGNATED RECIPIENT ORGANIZATION
SIGNAT
TYPED NAME AND TITLE
ff
PATE,
l
Fred Wilson, City Administrator
.
2004-398
EPA Funding Information XP-97989101 0 Page2
FUNDS
FORMER AWARD
THIS ACTION
AMENDEDTOTAL
EPA Amount This Action
S
$ 482,100
$ 482.100
EPA In -Kind Amount
$
$
$ 0
Unexpended Prior Year Balance
S
S
so
Other Federal Funds
S
S
so
Recipient Contribution
$
S
$ 0
State Contribution
$
S
so
Local Contribution
S
S394,446
$ 394,446
Other Contribution
$
S
$ 0
Allowable Project Cost
so
S 876.546
$ 876.546
Assistance Program (CFDA)
Stotutory Authority
Regulatory Authority
66.606 - Surveys - Studies - Investigations and
Special Purpose Grants
Consolidated Appropriations Act of 2004 (PL
108-199)
40 CFR PART 31
Fiscal
Site Name
DCN
FY
Approp.
Budget
PRC
Object
Site/Project
Cost
Obligation
I Code
I Organization
Class
Organization
Deobligation
-
WOE058
04
E4
09000AY
2021351E
41.83
482,100
482,100
2004-398
Budoel Summary Pace
XP - 97989101 - 0 Page 3
Table A - Object Class Category
(Non -construction)
Total Approved Allowable
Budget Period Cost
1. Personnel
E0
2. Fringe Benefits
f0
3. Travel
S0
4. Equipment
f0
5. Supplies
S0
6. Contractual
$876,546
7. Construction
E0
S. Other
S0
9. Total Direct Charges
$876.546
10. Indirect Costs: % Base
S0
11. Total (Share: Recipient 45.00 : Federal gg00%.)
$876,546
12. Total Approved Assistance Amount
$482,100
13. Program Income
50
2004-398
XP - 97989101 - 0 Paqe 4
Administrative Conditions
i. An interim Financial Status Report (FSR), Standard Form 269A (Rev. 7/97), covering
the period from "project/budget period start date" to September 30 of each calendar
year shall be submitted to the Grants Management Office, PMD-7, no later than
December 31 of the same calendar year. The initial FSR is due December 31, 2005.
The FSR covering the entire project period shall be submitted within 90 days after the
end of the project period (40 CFR Part 31.23(b)).
2. The recipient shall comply with the Single Audit Act and the reporting requirements
set forth in OMB Circular A-133.
3. The recipient agrees to complete and submit to the Grants Management Office,
PMD-7, a MBE/WBE Utilization Report (EPA Form 5700-52A), within 30 days after the
end of the Federal fiscal year, i.e., by October 30 of each calendar year. Negative
reports are required.
4. In accordance with EPA's Program for Utilization of Small, Minority and Women's
Business Enterprises in procurement under Federal assistance programs, the recipient
agrees to:
a) Accept the applicable FY 1999 "fair share" goals negotiated with EPA by the
California State Water Resources Control Board, as follows:
MHE
WEE
Construction
20%
1090
Supplies
24%
44%
Services
20%
31 %
Equipment
19%
16%
If the recipient does not want to rely on the applicable State's MBE/WBE "fair share"
goals, the recipient agrees to submit proposed MBE/WBE "fair share" goals based on
availability of qualified minority and women -owned businesses to do work in the
relevant market for construction, services, supplies, and equipment.
"Fair share" objectives must be submitted to Joe Ochab, PMD-1, within 30 days of
award and approved by EPA no later than 30 days thereafter.
b) Ensure to the fullest extent possible that at least the applicable "fair share"
objective {see a) above) of Federal funds for prime contracts for supplies, construction,
equipment or services are made available to organizations owned or controlled by
socially and economically disadvantaged individuals, women and historically black
colleges and universities.
c) Include in its bid documents applicable "fair share" objectives (see a) above)and
require all of its prime contractors to include in their bid documents for subcontracts the
negotiated fair share percentages.
2004-398 XP-979891-01-0 Page 5
d) Follow the six affirmative steps stated in 40 CFR Section 30.44(b), Section
31.36(e), Section 35.3145(d), or Section 35.6580(a), as appropriate.
e) In the event race and/or gender neutral efforts prove to be inadequate to achieve
a fair share objective for MBE/WBEs, the recipient agrees to notify EPA in advance of
any race and/or gender conscious action it plans to take to more closely achieve the fair
share objective.
f) Until the recipient has completed its fair share negotiations with EPA, it agrees
to apply the main State agency's fair share objectives. Once the recipient has
completed its fair share negotiations with EPA, it will apply those objectives. The
recipient also agrees to include in its bid documents the applicable FY-1999 "fair Share"
objectives and require all of its prime contractors to include in their bid documents for
subcontracts the applicable FY 1999 "fair share" percentages and to comply with
paragraphs (c) through (e) above.
5. The cost principles of OMB Circular A-87 are applicable to this award. Since there
are no indirect costs included in the assistance budget, they are not allowable under
this Assistance Agreement.
6. The recipient agrees to comply with Title 40 CFR Part 34, New Restrictions on
Lobbying . The recipient shall include the language of this provision in award
documents for all subawards exceeding $100,000, and require that subrecipients
submit certification and disclosure forms accordingly.
In accordance with the Byrd Anti -Lobbying Amendment, any recipient who makes a
prohibited expenditure under Title 40 CFR Part 34 or fails to file the required
certification or lobbying forms shall be subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such expenditure.
7. Pursuant to EPA's annual Appropriations Act, the chief executive officer of this
recipient agency shall require that no grant funds have been used to engage in lobbying
of the Federal Government or in litigation against the United States unless authorized
under existing law. As mandated by this Act, the recipient agrees to provide
certification to the award official via EPA Form 5700-53, Lobbying and Litigation
Certificate , or in a written statement. The Lobbying and Litigation certification and final
Financial Status Report shall be submitted within 90 days after the end of project
period.
Recipient shall abide by its respective OMB Circular (A-21, A-87, or A-122), which
prohibits the use of federal grant funds for litigation against the United States. Any Part
30 recipient shall abide by its respective OMB Circular (A-21 or A-122), which prohibits
the use of Federal grant funds to participate in various forms of lobbying or other
political activities.
6. Pursuant to EPA Order 1000.25 and Executive Order 13101, the recipient agrees to
use recycled paper for all reports which are prepared as a part of this agreement and
delivered to EPA. This requirement does not apply to Standard Forms. These forms
2004-398 '-979891-01-0 Page 6
are printed on recycled paper as available through the General Services Administration.
Recipient shall comply with the requirements set forth in Section 6002 of the Resource
Conservation and Recovery Act (RCRA) (42 U.S.C. 6962), Regulations issued under
RCRA Section 6002 apply to any acquisition of an item where the purchase price
exceeds $10,000 or where the quantity of such items acquired in the course of the
preceding fiscal year was $10,000 or more. RCRA Section 6002 requires that
preference be given in procurement programs to the purchase of specific products
containing recycled materials identified in guidelines developed by EPA. These
guidelines are listed in 40 CFR 247.
9. Effective October 1, 1994, the recipient agrees to ensure that all conference,
meeting, convention, or training space funded in whole or in part with Federal funds
complies with the Hotel and Motel Fire Safety Act of 1990.
to. The recipient shall fully comply with Subpart C of 40 CFR Part 32, entitled
"Responsibilities of Participants Regarding Transactions." The recipient is responsible
for ensuring that any lower tier covered transaction, as described in Subpart B of 40
CFR Part 32, entitled "Covered Transactions," includes a term or condition requiring
compliance with Subpart C. The recipient is responsible for further requiring the
inclusion of a similar term or condition in any subsequent lower tier covered
transactions. The recipient acknowledges that failing to disclose the information
required under 40 CFR 32.335 may result in the delay or negation of this assistance
agreement, or pursuance of legal remedies, including suspension and debarment.
The recipient may access the Excluded Parties List System at htti)://el)ls.arnet.gov.
This term and condition supersedes EPA Form 5700-49, "Certification Regarding
Debarment, Suspension, and Other Responsibility Matters.
11. This award includes $394,446, of non-federal third party contributions. Third party
contributions counting towards satisfying a cost sharing or matching requirement must
be verifiable from the records of grantees and subgrantees. As applicable, these
records must reflect how the value is placed on third party contributions. The value of
third party contributions must be applicable to the period to which the cost sharing or
matching requirement apply (40 CFR Part 31.24).
Programmatic Conditions
12. In accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. §
4321 et SeMc ., EPA is required to conduct an environmental review on the project funded
by this grant. Accordingly, the recipient agrees to provide EPA, in a timely fashion, an
environmental information document (EID) containing all the necessary information on
the project including a written analysis of the alternatives and the environmental
impacts of the project. The EID must be of sufficient scope and detail to enable EPA to
perform an environmental review under NEPA and other Federal environmental
statutes.
13. The recipient agrees not to take any action on the project beyond conceptual
design, including but not limited to, beginning the preparation of plans and
specifications, purchasing land, advertising or awarding design and/or construction
contracts, initiating construction or requesting reimbursement from EPA for costs
2004-398
' ._ XP-979891-01-0 Page 7
associated with such actions until such time as EPA has completed its environmental
review in accordance with NEPA and 40 C.F.R. Parts 6 and 1500 at se . Completion of
this review will be evidenced by a signed Finding of No Significant Impact (FONSI) or
Record of Decision (ROD).
14. The recipient agrees that, upon completion of the NEPA review, design and
construction shall be undertaken in accordance with the results of that review, including
but not limited to, the implementation of measures EPA identifies as reasonable to
mitigate the environmental impacts of the project. EPA reserves the right to unilaterally
terminate this grant in the event the recipient fails to comply with this condition, in
accordance with 40 C.F.R. Section 31.43.
15. The recipient agrees to submit to the EPA Project Office a short narrative
describing the environmental and public health benefits of this project. Additionally, at
the conclusion of the project, the recipient shall submit an assessment of how effective
the project was in achieving the stated environmental and public health objectives.
16. The recipient agrees to provide to EPA Region 9 locational data (i.e. latitude and
longitude) for the EPA -funded infrastructure project. The EPA Project Officer will
provide further instructions at a later date on how to specifically comply with this
requirement.
17. The recipient agrees to provide quarterly reports 30 days after the end of each
calendar quarter including: status of each workplan task, deliverable, status of
expenditures for the reporting period, summary of accomplishments including
discussion of problems impacting or expected to impact performance. Reports will be
due on the 30th day of January, April, July, October.
18. The recipient must submit a revised workplan by November 1, 2004 providing more
specific information regarding the actual tasks (in detail) to be conducted under this
award.
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