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HomeMy WebLinkAboutC-8263-1 - Clean Beaches Grant Program Grant Agreement for Newport Beach Arches Drainage Bacteria Reduction Program, Agreement No. D1612402t N CLEAN BEACHES GRANT PROGRAM GRANTAGREEMENT 1 BETWEEN THE STATE WATER RESOURCES CONTROL BOARD, hereinafter called "State" or "State Water Board" AND CITY OF NEWPORT BEACH, hereinafter called "Grantee" NEWPORT BEACH ARCHES DRAINAGE BACTERIA REDUCTION PROGRAM, hereinafter called "Project" AGREEMENT NO. SWRCBOOOOOOOOOOD1612402 AMENDMENT 23 This Grant Agreement executed by the State Water Board on September 19, 2016, and subsequently amended on March 5, 2019, and March 22, 2021 and is hereby amended as of DeGembe,- 3, 242-01 ly 7, 2021, to revise the work completion and term end dates and Exhibits A and B (deletions shown as stricken and revisions bold and underlined). Except as noted herein all other terms and conditions shall remain the same. The State and Grantee hereby agree as follows: PROVISION(S). The following provision(s) authorize the State Water Board to enter into this type of Grant Agreement: Public Resources Code § 75060 (Proposition 84 Clean Beaches Program) PURPOSE. State shall provide a grant to and for the benefit of Grantee for the purpose of decreasing the fecal indicator bacteria concentrations in the Lower Newport Bay by installing two (2) underground low -flow diversion structures to divert urban runoff and storm water from the Arches drainage area to a nearby sanitary sewer. GRANT AMOUNT. The maximum amount payable under this Agreement shall not exceed $839,500. TERM OF AGREEMENT. The term of the Agreement shall begin on JULY 1, 2016, through March 31, 2058 unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHALL BE COMPLETED BY August 31 292- MARCH 31, 2022. ABSOLUTELY NO FUNDS MAY BE .vm REQUESTED AFTER cepteher 30 0 ' APRIL 30, 2022. PROJECT REPRESENTATIVES. The Project Representatives during the term of this Agreement will be: State Water Board Grantee: City of Newport Beach Name: Spencer Joplin, Grant Manager Name: Dave Webb, Project Director Address: 1001 1 Street, 17th Floor Address 100 Civic Center Drive City, Zip: Sacramento, CA 95814 City, Zip: Newport Beach, CA 92660 Phone: 916 341-5636 Phone: 949 644-3330 Fax: 916 341-5707 Fax: 949 644-3308 e-mail: ail@)w teFbe.,Fd S encer.Jo lin waterboards.ca. ov e-mail: dawebb@newportbeachca.gov Direct all inquiries to: State Water Board Grantee: City of Newport Beach Section: Division of Financial Assistance Section: Public Works Attention: Brittani Evans, Program Analyst Name: John Kappeler, Grant Contact Address: 1001 1 Street, 1711 Floor Address: 3300 Newport Bewlevard 100 Civic Center Drive City, Zip: Sacramento, CA 95814 City, Zip: Newport Beach, CA 92658 City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment 23 Page 2 of 21 Phone: 916 341-5930 Phone: 949 644-3218 Fax: 916 341-5296 Fax: e-mail: brittani.evans@waterboards.ca.gov e-mail: jkappeler@newportbeachca.gov titner party may cnange its Nroject Kepresentative upon written notice to the other party. STANDARD PROVISIONS. The following exhibits are attached and made a part of this Agreement by this reference: Exhibit A SCOPE OF WORK — WORK TO BE PERFORMED BY THE GRANTEE Exhibit B INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS Exhibit C GENERAL TERMS & CONDITIONS Exhibit D SPECIAL CONDITIONS — CLEAN BEACHES GRANT PROGRAM GRANTEE REPRESENTATIONS. 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. IN WITNESS THEREOF, the parties have executed this Agreement on the dates set forth below. By: Gr e Signature Grace Leung Grantee Typed/Printed Name City Manager Title to Date By: '� /�f�✓ " Joe K frkoski Deputy Director State Water Resources Control Board, Division of Financial'Assistalnce d � tiUz/ Date City of Newport Beach State Water Board Grant Agreement No. SWRC130000000000D1612402 Amendment 2-3 Page 3 of 21 EXHIBIT A SCOPE OF WORK — WORK TO BE PERFORMED BY THE GRANTEE A. PLANS AND GENERAL COMPLIANCE REQUIREMENTS 1. In order for the State Water Board and Regional Water Quality Control Board (Regional Water Board) staff to verify work was adequately performed or conducted, Global Positioning System (GPS) information for project site and monitoring locations must be identified for this Project. Submittal requirements for GPS data are available at: http://www.waterboards.ca.gov/water—issues/programs/g rants_loans/grant_info/docs/gps. pdf. 2. The Grantee shall prepare and submit a Monitoring and Reporting Plan (MRP) that does all of the following: 1) identifies the nonpoint source(s) of pollution to be prevented or reduced by the Project; 2) describes the baseline water quality or quality of the environment to be addressed; 3) describes the manner in which the Project will be effective in preventing or reducing pollution and in demonstrating the desired environmental results; and 4) describes the monitoring program, including, but not limited to, the methodology, frequency, and duration of monitoring. The MRP shall be organized as follows, and may be submitted as separate documents or in one report. 2.1 Project Assessment and Evaluation Project Assessment and Evaluation Plan (PAEP) describes the manner in which the Project will be effective in preventing or reducing pollution and in demonstrating the desired environmental results. The PAEP details the methods of measuring Project benefits and reporting them in accordance with a PAEP. Grantee shall not implement monitoring and performance assessment and/or evaluation actions prior to PAEP approval by the Grant Manager. Guidance for preparing the PAEP is available at: http://www.waterboards.ca.gov/water_issues/programs/grants_loans/paep/index.shtm1. 2.2 Monitoring Plan All projects that include water quality or environmental monitoring must prepare a Monitoring Plan (MP). At a minimum, all MPs must: 1) describe the baseline water quality or quality of the environment to be addressed; 2) identify the non -point source(s) of pollution to be prevented or reduced by the Project; and 3) provide GPS information for all sampling locations. Furthermore, every project must collect pre- and post -AB 411 (Health and Saf. Code, § 115875 et seq.) data from the local county environmental health department for analysis in the final report. The MP must include a description of the monitoring program and objectives, types of constituents to be monitored, methodology, the frequency and duration of monitoring, and the sampling location for the monitoring activities. Any costs related to monitoring data collected prior to approval of the MP or not supported by the approved MP will not be reimbursed. Changes to the MP must be submitted to the Grant Manager for review and a decision regarding approval prior to implementation. Guidance for preparing an MP is available at: http://www.waterboards.ca. gov/water—issues/programs/g rants_loans/grant_info/index.shtm#plans. 2.3 Quality Assurance and Project Plan If water quality monitoring is undertaken, the Grantee shall also prepare, maintain, and implement a Quality Assurance Project Plan (QAPP) in accordance with the State Water Board's Surface Water Ambient Monitoring Program's (SWAMP) QAPP and data reporting requirements, and the USEPA QAPP, EPA AQ/R5, 3/01. Water quality monitoring data includes physical, chemical, and biological monitoring of any surface water. The QAPP shall be submitted to the State Water Board's Quality Assurance Officer for review and a decision regarding approval. Any costs related to monitoring City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment -23 Page 4 of 21 data collected prior to and not supported by the approved QAPP will not be reimbursed. Guidance for preparing the QAPP is available at: http://www.waterboards.ca.gov/water_issues/programs/grants_loans/grant—info/index.shtmi. The Grantee shall upload a pdf version of the final approved document(s) to the Financial Assistance Application Submittal Tool (FAAST) system. 2.4 Data Management If proof of submission of water quality data to California Environmental Data Exchange Network (CEDEN) is required in the Table of Items for Review, the Grantee shall upload all water quality data obtained through its implementation of the MP to CEDEN. The Grantee shall also provide a receipt of successful data submission, which is generated by CEDEN, to the Grant Manager prior to submitting a final invoice. Guidance for submitting data, including required minimum data elements and data formats, is available at http://www.ceden.org or the Regional Data Centers (RDCs) (Moss Landing Marine Lab, San Francisco Estuary Institute, Southern California Coastal Water Research Project, or Central Valley RDC). Contact information for the RDCs is included in the CEDEN web link. 3. Activities supported by grant funds are projects under the California Environmental Quality Act (CEQA) and must comply with CEQA requirements. Work on the Project cannot begin until the State Water Board has reviewed the CEQA documentation submitted by the Grantee and given environmental clearance. If the work is conducted on federal land, the Grantee must also comply with the National Environmental Policy Act (NEPA). Proceeding with work subject to CEQA and/or NEPA without environmental clearance by the State Water Board shall constitute a breach of a material provision of this Agreement. 4. If public agency approvals, entitlements or permits are required, such approvals, entitlements or permits must be obtained and signed copies submitted to the Grant Manager before work begins. If the Project is carried out on lands not owned by the Grantee, the Grantee must obtain adequate rights of way for the useful life of the Project. 5. State Disclosure Requirements — Include the following disclosure statement in any document, written report, or brochure prepared in whole or in part pursuant to this Agreement: "Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board. The contents of this document do not necessarily reflect the views and policies of the State Water Resources Control Board, nor does mention of trade names or commercial products constitute endorsement or recommendation for use." Signage shall be posted in a prominent location at Project site (if applicable) or at the Grantee's headquarters and shall include the State Water Board color logo (available from the Grant Manager and Program Analyst): Water Boards and the following disclosure statement: "Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board." 6. The Grantee shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within Item 5 of this exhibit. City of Newport Beach State Water Board Grant Agreement No. SWRC130000000000D1612402 Amendment -23 Page 5 of 21 B. PROJECT -SPECIFIC REQUIREMENTS 1. Project Management 1.1. Provide all technical and administrative services, as needed, for Project completion; monitor, supervise, and review all work performed; and coordinate budgeting and scheduling to ensure the Project is completed within budget, on schedule, and in accordance with approved procedures, applicable laws, and regulations. 1.2 Notify the Grant Manager at least fifteen (15) working days in advance of upcoming meetings. 1.3 Conduct pre-, during, and post -construction photo documentation and submit to the Grant Manager. 1.4 Conduct periodic and final site visits with the Grant Manager. 2. Planning, Design, and Engineering 2.1 Prepare and submit the preliminary design plans and specifications electronically to the Grant Manager for review and approval for the installation of two (2) low -flow diversion structures in the approximately four hundred (400) acre Arches drainage area within the cities of Newport Beach and Costa Mesa, as follows: 2.1.1 One (1) low -flow diversion structure in the existing storm drain adjacent to Newport Boulevard to divert flows to the sanitary sewer that are less than or equal to 0.26 cubic feet per second; and 2.1.2 One (1) low -flow diversion structure in the existing storm drain in the Hoag Hospital complex to divert flows to the sanitary sewer that are less than or equal to 0.26 cubic feet per second. 2.2 Complete the final design plans and specifications and prepare a summary identifying any changes from the preliminary plans completed in Item 2.1. Submit the final design plans and specifications and summary of changes electronically to the Grant Manager for review and approval. 2.3 Complete the bid documents in accordance with the approved design plans, after receiving all required approvals, and advertise the Project for bid. Submit the advertised bid documents electronically to the Grant Manager. 3. Construction and Implementation 3.1 Award the construction contract(s) and submit the Notice(s) to Proceed and awarded contract(s) for the Project electronically to the Grant Manager. 3.2 Construct the Project in accordance with the approved design plans and specifications in Item 2.2. 3.3 Submit any proposed changes that arise during construction that may affect the Project's benefits listed in Item 2.1, schedule, or costs, electronically to the Grant Manager for approval. 3.4 Submit as -built drawings and provide a summary of changes from the approved design plans and specifications that occurred during construction electronically to the Grant Manager. 3.5 Prepare and submit the Operations and Maintenance Plan electronically to the Grant Manager. 4. Monitoring and Performance 4.1 Monitor in accordance with the approved MRP. 4.2 Analyze monitoring results, document implementation of monitoring in accordance with the approved MRP, and include a summary report of the monitoring results in the associated quarterly progress report. A summary of all monitoring and data analysis shall be included in the Final Project Report. City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment 23 Page 6 of 21 TABLE OF ITEMS FOR REVIEW ITEM DESCRIPTION CRITICAL DUE ESTIMATED DUE DATE DATE EXHIBIT A — SCOPE OF WORK — WORK TO BE PERFORMED BY THE GRANTEE A PLANS AND GENERAL COMPLIANCE REQUIREMENTS 1. GPS information for Project site and monitoring locations Completed 2.= Monitoring and Reporting Plan 2.1. Project Assessment and Evaluation Plan (PAEP) Completed 2.2. Monitoring Plan (MP) Completed 2.3. Quality Assurance Project Plan (QAPP) Completed 2.4 Proof of Water Quality Data Submission to CEDEN Before Final Invoice 3. Copy of final CEQA/NEPA Documentation Completed Public Agency Approvals, Entitlements or Permits As Needed Encroachment Permit from the California Department Complete 4. of Transportation Discharge Permit from the Orange County Sanitation A pFil 2021 District October 2021 B. PROJECT -SPECIFIC REQUIREMENTS 1. Project Management 1.2 Notification of Upcoming Meetings Ongoing 1.3 Pre-, During, Post -Construction Photo Documentation Ongoing 1.4 Periodic and Final Site Visits Ongoing 2. Planning, Design, and Engineering 2.1 Preliminary Design Plans and Specifications Completed 2.2 Final Design Plans and Summary of Changes Completed 2.3 Advertised Bid Documents Completed 3. Construction and Implementation City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment.23 Page 7 of 21 ITEM DESCRIPTION CRITICAL DUE DATE ESTIMATED DUE DATE EXHIBIT A — SCOPE OF WORK — WORK TO BE PERFORMED BY THE GRANTEE 3.1 Notice to Proceed Completed 3.3 Proposed Changes As Needed 3.4 As -Built Drawings ApFil 30, 2021 October 31, 2021 3.5 Operations and Maintenance Plan May2 October 2021 EXHIBIT B — INVOICING, BUDGET DETAIL, AND REPORTING PROVISIONS A. INVOICING Quarterly G. REPORTS 1. Progress Reports within forty-five (45) days following the end of the calendar quarter (March, June, September, and December) Quarterly 2. Annual Progress Summaries Annually by 11/15 3 Natural Resource Projects Inventory (NRPI) Survey Form (If applicable) Before Final Invoice 4. Draft Final Project Report jURe 30 2021 January 31, 2022 5. Final Project Report �„lIy Z �, February 28, 2022 6. Final Project Summary Before Final Invoice 7. Final Project Inspection and Certification Before Final Invoice City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment .23 Page 8 of 21 EXHIBIT B INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS A. INVOICING 1. Invoices shall be submitted using the invoice template provided by the State Water Board. The invoice must be itemized based on the line items specified in the Budget. The original invoice shall be submitted to the State Water Board's Grant Manager on a quarterly basis consistent with the reporting schedule in Section GA of this exhibit. The address for submittal is: Spencer Joplin, Grant Manager State Water Resources Control Board Division of Financial Assistance 1001 1 Street, 171h Floor Sacramento, CA 95814 Invoices submitted in any other format than the one provided by the State Water Board will cause an invoice to be disputed. In the event of an invoice dispute, the State Water Board'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. The State Water Board Grant Manager has the responsibility for approving invoices. 3. Supporting documentation (e.g., receipts) must be submitted with each invoice to request reimbursement for grant funds as well as to support Match Funds invoiced. The amount claimed for the Personnel Services line item and Professional and Consultant Services line item must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Invoice payment shall be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice. The Grantee shall not request disbursement for any cost until such cost has been incurred and has been paid by or is due and payable by the Grantee. Although it is agreed that actual payment of such cost by the Grantee is not required as a condition of the grant disbursement, all grant disbursements received by the Grantee shall be paid to contractors and vendors within thirty (30) days from receipt of the funds. In the event that the Grantee fails to disburse grant funds to contractors or vendors within thirty (30) days from receipt of the funds, the Grantee shall immediately return such funds to the State Water Board. Interest shall accrue on such funds from the date of disbursement through the date of mailing of funds to the State Water Board. If the Grantee held such funds in interest-bearing accounts, any interest earned on the funds shall also be due to the State Water Board. 5. 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. 6. Notwithstanding any other provision of this Agreement, the Grantee agrees that the State Water Board 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 State Water Board. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 7. The invoice shall contain the following information: a. The date of the invoice; b. The time period covered by the invoice, i.e., the term "from" and "to"; c. The total amount due; and City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment 23 Page 9 of 21 d. Original signature and date (in ink) of Grantee or its authorized representative. e. Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN SEPTEMBER 30 202 APRIL 30. 2022. B. PROHIBITION OF INDIRECT COSTS The grant funds for this Agreement are the proceeds from the sale of general obligation bonds. As such, grant funds may not be used for any indirect costs. "Indirect Costs" means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the Project (i.e., costs that are not directly related to the Project). Examples of Indirect Costs include, but are not limited to: central service costs; general administration of the Grantee; non project specific accounting and personnel services performed within the Grantee organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non project -specific facilities; tuition and conference fees; and, generic overhead or markup. Any invoice submitted including Indirect Costs will cause that invoice, in its entirety, to be disputed and will not be paid until the dispute is resolved. This prohibition applies to the Grantee and any subcontract or sub -agreement for work on the Project that will be reimbursed with grant funds pursuant to this Agreement. (Gov. Code, § 16727.) C. BUDGET CONTINGENCY CLAUSE The maximum amount to be encumbered under this Agreement for the 2016-17 fiscal year ending June 30, 2017 shall not exceed EIGHT HUNDRED THIRTY-NINE THOUSAND, FIVE HUNDRED DOLLARS ($839,500). 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 State Water Board 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 this Agreement's funding for any fiscal year expires due to reversion or is reduced, substantially delayed, or deleted by the Budget Act, by Executive Order, or by order or action of the Department of Finance, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to the Grantee to reflect the reduced amount. D. LINE ITEM BUDGET PROP 84 MATCH TOTAL Direct Project Administration Costs $ 7-1,392 $ 20,000 $ 91,392 157,284 46,701 203,985 Planning/Design/Engineering/Environmental $ 425,000 $ 92,000 $ 217,000 120,454 203,299 323,753 Equipment ($5,000 or more per item) $ 0 $ 0 $ 0 Construction/Implementation $ 583,608 $ 458,000 $ 741,608 502,262 0 502,262 Monitoring/Performance $ 59,500 $ 8 $ 59,500 20,000 79.500 Education/Outreach $ 0 $ 0 $ 0 TOTAL E. BUDGET LINE ITEM FLEXIBILITY City of Newport Beach State Water Board Grant Agreement No. SWRC130000000000D1612402 Amendment -23 Page 10 of 21 839,500 $ 270,000 $ 1,109, 500 Line Item Adjustment(s). Subject to the prior review and approval of the Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15%) of the total grant amount (excluding Match Funds), including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15%) shall require a formal Agreement amendment. If the Line Item Budget includes an amount for Personnel Services, that amount is based on the hours, classifications, and rates submitted by the Grantee in its application. Any changes to the hours, classifications, and rates must be approved, in advance and in writing, by the Grant Manager. 2. Procedure to Request an Adjustment. Grantee may submit a request for an adjustment in writing to the State Water Board. 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 State Water Board may also propose adjustments to the budget. 3. Remaining Balance. In the event the Grantee does not submit invoices requesting all of the funds encumbered under this Grant Agreement, any remaining funds revert to the State. The State Water Board will mail a Notice of Project Completion letter to the Grantee stating that the project file is closed, the final invoice is being processed for payment, and any remaining balance will be disencumbered and unavailable for further use under the Grant Agreement. F. MATCH FUNDS 1. The Grantee agrees to provide match funds in the amount of TWO HUNDRED SEVENTY THOUSAND DOLLARS ($270,000) (Match Funds) for this Project. This Match Funds amount is based on Line Item Budget categories, funding sources, and amounts submitted by the Grantee in its application and during the negotiation of this Agreement. Any Match Funds line item changes or adjustments in Match Funds classifications or sources requested by Grantee must be approved, in advance and in writing, by the Grant Manager. 2. If, upon completion of the Project, the Grantee has provided match funds in an amount that is less than the Match Funds amount set forth in paragraph F.1 above, then the State Water Board may proportionately reduce the grant amount and/or Grantee's Match Funds amount, provided the reduced amount(s) satisfy statutory requirements and State Water Board Guidelines. G. REPORTS 1. PROGRESS REPORT. Grantee shall submit quarterly progress reports to the State Water Board's Grant Manager within forty-five (45) days following the end of the calendar quarter (March, June, September, and December). a. The progress reports shall provide a brief description of the work performed, accomplishments during the quarter, milestones achieved, monitoring results (if applicable), and any problems encountered in the performance of the work under this Agreement. The Grantee shall document all contractor activities and expenditures in progress reports. b. The invoice should accompany the progress report. The invoice should reflect charges for the work completed during the reporting period covered by progress report. The invoice cannot be paid prior to submission of a progress report covering the invoice reporting period. 2. ANNUAL PROGRESS SUMMARIES. Prepare and provide an Annual Progress Summary annually by November 15 that covers the time period from October 1 of the previous year through September 30 of City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment.23 Page 11 of 21 the current year. The summary must be no more than two (2) pages, and shall include pictures as appropriate. Upload an electronic copy of the Annual Progress Summary in pdf format to the FAAST system. The summary shall include the following: a. A summary of the conditions the Project is meant to alleviate, the Project's objective, the scope of the Project, and a description of the approach used to achieve the Project's objective. b. A summary of the progress made to date, significant milestones achieved, and the current schedule of completing the Project. c. An evaluation of the effectiveness of the Project to date in preventing or reducing pollution and alleviating the Project's original conditions. 3. NATURAL RESOURCE PROJECTS INVENTORY (NRPI) SURVEY FORM. If available at the completion of this Project, the Grantee shall complete and submit electronically a NRPI Project Survey Form found at http://www. ice. ucdavis.edu/nrpi. 4. DRAFT FINAL PROJECT REPORT. Prepare and submit to the Grant Manager, for review and comment, a Draft Final Project Report in a format provided by the Grant Manager. 5. FINAL PROJECT REPORT. Prepare a Final Project Report that addresses, to the extent feasible, comments made by the Grant Manager on the Draft Final Project Report. Submit one (1) reproducible master and an electronic copy of the final. Upload an electronic copy of the final report in pdf format to the FAAST system. 6. FINAL PROJECT SUMMARY. Prepare a brief summary of the information contained in the Final Project Report, including before and after pictures, as appropriate. Upload an electronic copy of the Final Project Summary in pdf format to the FAAST system. 7. FINAL PROJECT INSPECTION AND CERTIFICATION. Upon completion of the Project, the Grantee shall provide for a final inspection and shall certify that the Project has been completed in accordance with this Agreement, any final plans and specifications submitted to the State Water Board, and any amendments or modifications thereto. If the Project involved the planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, or other professionals, the final inspection and certification shall be conducted by a California Registered Civil Engineer or other appropriate California registered professional. The results of the final inspection and certification shall be provided to the Grant Manager. 8. The Grantee agrees to expeditiously provide, during work on the Project and throughout the term of this Agreement, such reports, data, information, and certifications that may be reasonably required by the State Water Board. H. 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. I. AUDIT DISALLOWANCES The Grantee agrees it shall return any audit disallowances to the State Water Board. J. FRAUD AND MISUSE OF PUBLIC FUNDS All invoices submitted shall be accurate and signed under penalty of perjury. Any and all costs submitted pursuant to this Agreement shall only be for the tasks set forth herein. The Grantee shall not submit any invoice containing costs that are ineligible or have been reimbursed from other funding sources unless required and specifically noted as such (i.e., match costs). Any eligible costs for which the Grantee is seeking reimbursement shall not be reimbursed from any other source. Double or multiple billing for time, services, or any other eligible cost is illegal and constitutes fraud. Any suspected occurrences of fraud, forgery, City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment -23 Page 12 of 21 embezzlement, theft, or any other misuse of public funds may result in suspension of disbursements of grant funds and/or termination of this Agreement requiring the repayment of all funds disbursed hereunder. Additionally, the Deputy Director of the Division of Financial Assistance may request an audit pursuant to exhibit C, paragraph 4 and refer the matter to the Attorney General's Office or the appropriate district attorney's office for criminal prosecution or the imposition of civil liability. (Civ. Code, §§ 1572-1573; Pen. Code, §§ 470, 489-490.) City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment -23 Page 13 of 21 EXHIBIT C GENERAL TERMS & CONDITIONS 1. AGRICULTURAL WATER MANAGEMENT PLAN CONSISTENCY: If the Grantee is an agricultural water supplier as defined by Water Code section 10608.12, Grantee must comply with Agricultural Water Management Planning requirements as mandated by Water Code section 10852. 2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Agreement is binding on any of the parties. 3. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the State Water Board. 4. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the written consent of the State Water Board. 5. AUDIT: The Grantee agrees the State Water Board, the Bureau of State Audits, the Governor of the State, the Internal Revenue Service, or any authorized representative of the foregoing shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The Division of Financial Assistance (Division), at its option, may call for an audit of financial information relative to the Project, where the Deputy Director of the Division determines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of federal requirements. Where such an audit is called for, the audit shall be performed by a certified public accountant independent of the Grantee and at the cost of the Grantee. The audit shall be in the form required by the Division. The Grantee agrees to maintain such records for a possible audit for a minimum of thirty-five (35) years after final payment, unless a longer period of records retention is stipulated. The 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, the 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. (Gov. Code, § 8546.7; Pub. Contract Code, § 10115 et seq.) 6. BONDING: Where contractors are used, the Grantee shall not authorize construction to begin until each 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 $25,000.00. (Civ. Code, § 9550; Pub. Contract Code, § 7103.) 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, or the useful life of the Project, whichever is longer. 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. CONFLICT OF INTEREST: The Grantee certifies that it is in compliance with applicable state and/or federal conflict of interest laws. 10. CONTINUOUS USE OF PROJECT; LEASE OR DISPOSAL OF PROJECT: The Grantee agrees that, except as provided in the Agreement, it will not abandon, substantially discontinue use of, lease, or dispose of the Project or any significant part or portion thereof during the useful life of the Project without prior written approval of the Deputy Director of the Division. Such approval may be conditioned as determined to be appropriate by the Deputy Director of the Division, including a condition requiring repayment of all grant funds or any portion of all remaining grant funds covered by this Agreement together with accrued interest and any penalty assessments which may be due. City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment .23 Page 14 of 21 11. 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. 12. DATA MANAGEMENT: This Project includes appropriate data management activities so that Project data can be incorporated into appropriate statewide data systems. 13. DELTA PLAN CONSISTENCY FINDINGS: If the Grantee is a state or local public agency and the Project is covered by the Delta Plan, Grantee must submit certification of Project consistency with the Delta Plan to the Delta Stewardship Council according to the requirements of Water Code section 85225 and California Code of Regulations, Title 23, section 5002. 14. DISPUTES: The Grantee shall continue with its 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 Deputy Director of the 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 State Water Board's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the State Water Board's Executive Director. The decision of the State Water Board's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the 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 State Water Board, or any official or representative thereof, on any question of law. 15. ENVIRONMENTAL CLEARANCE (CEQA/NEPA/STREAMBED ALTERATION): a. 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 and the State Water Board has given environmental clearance. No work that is subject to an Environmental Impact Report or a Mitigated Negative Declaration may proceed until and unless approved by the Deputy Director of the Division. Such approval is fully discretionary and shall constitute a condition precedent to any work for which it is required. Proceeding with work subject to CEQA and/or NEPA without environmental clearance by the State Water Board shall constitute a breach of a material provision of this Agreement. b. If this Project includes modification of a river or stream channel, it must fully mitigate environmental impacts resulting from the modification. The Grantee must provide documentation that the environmental impacts resulting from such modification will be fully mitigated considering all of the impacts of the modification and any mitigation, environmental enhancement, and environmental benefit resulting from the Project, and whether, on balance, any environmental enhancement or benefit equals or exceeds any negative environmental impacts of the Project. 16. 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. 17. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment.23 Page 15 of 21 18. GRANTEE'S RESPONSIBILITY FOR WORK: The Grantee shall be responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement, including, but not limited to, contractors, subcontractors, suppliers, and providers of services. The Grantee shall be responsible for any and all disputes arising out of its contracts for work on the Project, including but not limited to payment disputes with contractors and subcontractors. The State will not mediate disputes between the Grantee and any other entity concerning responsibility for performance of work. 19. 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. 20. 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, employees or agents of the State Water Board. 21. INSPECTION: The State Water Board, the Bureau of State Audits, or any authorized representative of the foregoing, shall have suitable access to the Project site at all reasonable times during Project implementation and thereafter for the useful life of the Project to ascertain compliance with this Agreement and its goals. The Grantee acknowledges that the Project records and location are public records. 22. INSURANCE: Throughout the useful life of the Project, 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 (30) days prior written notice to the State Water Board. 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. 23. NONDISCRIMINATION: a. During the performance of this Agreement, the Grantee and its consultants and contractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, sexual orientation, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. b. The Grantee, its consultants, and contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. c. The Grantee, its consultants, and contractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12990) and the applicable regulations promulgated thereunder (Cal. Code Regs., tit. 2, § 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. d. The Grantee, its consultants, and contractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement, if any. e. The Grantee shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. Failure by the Grantee to carry out these requirements is a breach of a material provision of this Agreement which may result in its termination. City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment 23 Page 16 of 21 24. NO THIRD PARTY RIGHTS: The parties to this Grant Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this Grant Agreement, or of any duty, covenant, obligation or undertaking established herein. 25. NOTICE: a. The Grantee shall notify the State Water Board prior to conducting construction, monitoring, demonstration, or other implementation activities such that State Water Board and/or Regional Water Board staff may observe and document such activities. b. The Grantee shall promptly notify the State Water Board 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 State Water Board, and the State Water Board has given written approval for such change. c. Discovery of any potential archeological or historical resource. Should a potential archeological or historical resource be discovered during implementation of the Project, the Grantee agrees that all work in the area of the find will cease until a qualified archeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Deputy Director of the Division has determined what actions should be taken to protect and preserve the resource. The Grantee agrees to implement appropriate actions as directed by the Division. d. Discovery of any unexpected endangered or threatened species, as defined in the federal or California Endangered Species Acts. Should a federal or state protected species be unexpectedly encountered during implementation of the Project, the Grantee agrees to promptly notify the Deputy Director of the Division. This notification is in addition to the Grantee's obligations under the federal or state Endangered Species Acts. e. The Grantee shall notify the State Water Board 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 State Water Board's representatives. f. The Grantee shall promptly notify the State Water Board in writing of completion of work on the Project. g. The Grantee shall promptly notify the State Water Board 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 thirty (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 ninety (90) days or more beyond the estimated date of completion of construction previously provided. 26. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as part of the Project throughout the useful life of the Project, consistent with the purposes for which this Grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the State Water Board shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Deputy Director of the Division. 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. 27. PERMITS, CONTRACTING, 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, if any, or as are specifically authorized by the State Water Board's Grant Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, City of Newport Beach State Water Board Grant Agreement No. SWRCBOOOOOOOOOOD1612402 Amendment 23 Page 17 of 21 associates, or consultants, shall be subject to the prior written approval of the State Water Board's Grant Manager. 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 C.F.R., part 31.35; Gov. Code, § 4477) http://echo.epa.gov. 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, the California Department of Industrial Relations (DIR), or Grantee; b. Have not within a three (3) -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and, d. Have not within a three (3) -year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default. 28. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of the Labor Code regarding prevailing wages and shall monitor all contracts subject to reimbursement from this Agreement to assure that the prevailing wage provisions of the Labor Code are being met. The Grantee certifies that it has a Labor Compliance Program (LCP) in place or has contracted with a third party that has been approved by the Director of DIR to operate an LCP. Current DIR requirements may be found at http://www.dir.ca.gov/lcp.asp. For more information, please refer to DIR's Public Works Manual at: http://www.dir.ca.gov/dlse/PWManualCombined.pdf. 29. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. All technical reports required pursuant to this Agreement that involve planning, investigation, evaluation, or design, or other work requiring interpretation and proper application of engineering or geologic sciences, shall be prepared by or under the direction of persons registered to practice in California pursuant to Business and Professions Code, sections 6735, 7835, and 7835.1. To demonstrate compliance with California Code of Regulations, title 16, sections 415 and 3065, all technical reports must contain a statement of the qualifications of the responsible registered professional(s). As required by these laws, completed technical reports must bear the signature(s) and seal(s) of the registered professional(s) in a manner such that all work can be clearly attributed to the professional responsible for the work. 30. 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; City of Newport Beach State Water Board Grant Agreement No. SWRCB0000000000D1612402 Amendment -23 Page 18 of 21 a. 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, b. If a 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. 31. RELATED LITIGATION: Under no circumstances may a Grantee use funds from any disbursement under this Grant Agreement to pay costs associated with any litigation the Grantee pursues against the State Water Board, any Regional Water Board, or any other party. Regardless of the outcome of any such litigation, and notwithstanding any conflicting language in this Agreement, the Grantee agrees to complete the Project funded by this Agreement or to repay all of the grant funds plus interest. 32. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, audio and video recordings, 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 State Water Board 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. 33. 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 State Water Board 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 State Water Board and the State against any loss or liability arising out of any claim or action brought against the State Water Board 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 State Water Board 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. 34. STATE WATER BOARD 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 State Water Board 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 State Water Board shall not preclude the State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own filing costs and attorney fees. 35. SUPPLEMENTAL ENVIRONMENTAL PROJECTS: Grant Funds shall not be used for supplemental environmental projects required by Regional Water Boards. City of Newport Beach State Water Board Grant Agreement No. SWRC130000000000D1612402 Amendment 2,� Page 19 of 21 36. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated at any time at the option of the State Water Board, 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 State Water Board. In the event of termination, the Grantee agrees, upon demand, to immediately repay to the State Water Board 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. 37. TIMELINESS: Time is of the essence in this Agreement. The Grantee shall proceed with and complete the Project in an expeditious manner. 38. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those set by the California Department of Human Resources. These rates may be found at http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. Reimbursement will be at the State travel and per diem amounts that are current as of the date costs are incurred by the Grantee. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the Grant Manager. 39. 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. 40. URBAN WATER MANAGEMENT: The Grantee certifies that this Project complies with the Urban Water Management Planning Act (Water Code, § 10610 et seq.). This shall constitute a condition precedent to this Agreement. 41. URBAN WATER SUPPLIER: If the Grantee is an "urban water supplier" as defined by Water Code section 10617, Grantee must charge each customer for actual water volume measured by water meter according to the requirements of Water Code sections 526 and 527. Section 527 further requires that such suppliers not subject to section 526 install water meters on all municipal and industrial service connections within their service area by 2025. 42. 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 sewer pipelines and sewage treatment plant structures and twenty (20) years for all else. 43. VENUE: The State Water Board 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. 44. WAIVER AND RIGHTS OF THE STATE WATER BOARD: 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. 45. WATER CONSERVATION AND EFFICIENCY PROGRAMS: The Grantee acknowledges that it has appropriate water conservation and efficiency programs in place, and that this provision constitutes a condition of the grant award. A web link with examples of water conservation and efficiency programs is available at: http://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/conservation.shtml. The Grantee also agrees to comply with the State Water Board's Drought Emergency Water Conservation regulations in sections 863-865 of title 23 of the California Code of Regulations. If applicable, the Grantee agrees to include a discussion of progress and compliance in its reports submitted pursuant to Exhibit B of this Agreement. City of Newport Beach State Water Board Grant Agreement No. SWRCB0000000000D1612402 Amendment 23 Page 20 of 21 46. WATER RIGHTS: The Grantee acknowledges that its eligibility for this Grant award is conditioned on its compliance with Water Code section 5103(e), if applicable. The Grantee further certifies that it is not required to file a Statement of Diversion and Use pursuant to Water Code section 5101. 47. WATERSHED MANAGEMENT PLAN CONSISTENCY: The Grantee certifies that any watershed protection activity undertaken as part of this Project will be consistent with the applicable, adopted, local watershed management plans and the applicable Water Quality Control Plan (Basin Plan and/or Statewide) adopted by a Regional Water Board or the State Water Board, where such plans exist. Any such activity occurring in the San Gabriel and Los Angeles watersheds shall be consistent with the San Gabriel and Los Angeles River Watershed and Open Space Plan as adopted by the San Gabriel and Lower Los Angeles Rivers and Mountain Conservancy and the Santa Monica Mountains Conservancy. 48. WITHHOLDING OF GRANT DISBURSEMENTS: The State Water Board 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 Newport Beach State Water Board Grant Agreement No. SWRC130000000000D1612402 Amendment 23 Page 21 of 21 EXHIBIT D SPECIAL CONDITIONS — CLEAN BEACHES GRANT PROGRAM 1. The Grantee certifies that the Project is intended to restore and protect the water quality and environment of coastal waters, estuaries and nearshore waters, or groundwater. Further, the Grantee hereby warrants and represents that this Project is capable of contributing to sustained, long-term water quality or environmental restoration or protection benefits for a period of twenty (20) years and to address the causes of degradation, rather than symptoms. 2. This Project is consistent with water quality and resource protection plans prepared, implemented, or adopted by the State Water Board, the applicable Regional Water Board, and the State Coastal Conservancy. 3. Notwithstanding Exhibit A, the Grantee shall submit a monitoring and reporting plan that will do all of the following: a. Identify the nonpoint source or sources of pollution to be prevented or reduced by Project; b. Describe the baseline water quality or quality of the environment to be addressed; c. Describe the manner that Project will prevent or reduce pollution and demonstrate desired environmental results; and, d. Describe the monitoring program, including, but not limited to, the methodology, and the frequency and duration of monitoring. 4. Notwithstanding Exhibit A, upon completion of the Project, the Grantee shall submit a report to the State Water Board that summarizes the completed activities and indicates whether the purposes of the Project have been met. The report shall include information collected by the recipient in accordance with the Project monitoring and reporting plan, including a determination of the effectiveness of the Project in preventing or reducing pollution, and the results of the monitoring program. 5. The Grantee certifies that if a recovery plan for coho salmon, steelhead trout, or other threatened or endangered aquatic species exists, this Project is consistent with such a plan and, if feasible, implements actions in such a plan. 6. The Grantee certifies that any real property or interests in real property acquired for this Project shall be acquired from a willing seller. 7. As part of this Project, the Grantee shall include a monitoring component. The results of this monitoring component shall be submitted as set forth in Exhibit A, paragraphs A.2.2 & A.2.3 of this Agreement. 8. The Grantee certifies it is providing a match of at least 15% of the capital costs to be spent on this Project, as such costs are defined under Public Resources Code section 32025. 9. The Grantee certifies that it has obtained or will obtain all necessary approvals, entitlements, and permits required to implement the Project. Failure to obtain any necessary approval, entitlement, or permit shall constitute a breach of a material provision of this Agreement. V CLEAN BEACHES GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD, hereinafter called "State" or "State Water Board' AND CITY OF NEWPORT BEACH, hereinafter called "Grantee" NEWPORT BEACH ARCHES DRAINAGE BACTERIA REDUCTION PROGRAM, hereinafter called "Project" AGREEMENT NO. D1612402 The State and Grantee hereby agree as follows: PROVISION(S). The following provision(s) authorize the State Water Board to enter into this type of Grant Agreement: Public Resources Code § 75060 (Proposition 84 Clean Beaches Program) PURPOSE. State shall provide a grant to and for the benefit of Grantee for the purpose of decreasing the fecal indicator bacteria concentrations in the Lower Newport Bay by installing two (2) underground low -flow diversion structures to divert urban runoff and storm water from the Arches drainage area to a nearby sanitary sewer. GRANT AMOUNT. The maximum amount payable under this Agreement shall not exceed $839,500. TERM of AGREEMENT. The term of the Agreement shall begin on JULY 1, 2016, through FEBRUARY 28, 2055 unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHALL BE COMPLETED BY FEBRUARY 28, 2019. ABSOLUTELY NO FUNDS MAY BE REQUESTED AFTER MARCH 31, 2019. PROJECT REPRESENTATIVES. The Project Representatives during the term of this Agreement will be: State Water Board Grantee: 9FOR STATE USE ONLY DGS REGISTRATION NO. V CLEAN BEACHES GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD, hereinafter called "State" or "State Water Board' AND CITY OF NEWPORT BEACH, hereinafter called "Grantee" NEWPORT BEACH ARCHES DRAINAGE BACTERIA REDUCTION PROGRAM, hereinafter called "Project" AGREEMENT NO. D1612402 The State and Grantee hereby agree as follows: PROVISION(S). The following provision(s) authorize the State Water Board to enter into this type of Grant Agreement: Public Resources Code § 75060 (Proposition 84 Clean Beaches Program) PURPOSE. State shall provide a grant to and for the benefit of Grantee for the purpose of decreasing the fecal indicator bacteria concentrations in the Lower Newport Bay by installing two (2) underground low -flow diversion structures to divert urban runoff and storm water from the Arches drainage area to a nearby sanitary sewer. GRANT AMOUNT. The maximum amount payable under this Agreement shall not exceed $839,500. TERM of AGREEMENT. The term of the Agreement shall begin on JULY 1, 2016, through FEBRUARY 28, 2055 unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHALL BE COMPLETED BY FEBRUARY 28, 2019. ABSOLUTELY NO FUNDS MAY BE REQUESTED AFTER MARCH 31, 2019. PROJECT REPRESENTATIVES. The Project Representatives during the term of this Agreement will be: State Water Board Grantee: City of Newport Beach Name: Spencer Jo lin, Grant Manager Name: Dave Webb, Project Director Address: ffi 1001 1 Street, 16 Floor Address: 100 Civic Center Drive City, Zip: Sacramento, CA 95814 City, Zip: Newport Beach, CA 92660 Phone: 916 341-5636 Phone: (949) 644-3330 Fax: 916)341-5707 Fax: 949 644-3308 e-mail: S12encer.Joplin@waterboards.ca.gov e-mail: dawebb ne ortbeachca. ov Direct all inquiries to: State Water Board Grantee: City of Newport Beach Section: Division of Financial Assistance Section: Public Works Attention: Michele Stebbins, Pr ram Analyst Name: John Kappeler, Grant Contact Address: 1001 1 Street, 17 Floor Address: 3300 Newport Boulevard City, Zip: Sacramento, CA 95814 City, Zip: Ne ort Beach, CA 92658 Phone: (916) 341-5665 Phone: (949) 644-3218 Fax: 916 341-5296 Fax: e-mail: Michele.Stebbins waterboards.ca. ov e-mail: jappeler@neviportbeachca.gov Either party may change its Project Representative upon written notice to the other party. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 2 of 21 STANDARD PROVISIONS. The following exhibits are attached and made a part of this Agreement by this reference: Exhibit A SCOPE OF WORK— WORK TO BE PERFORMED BY THE GRANTEE Exhibit B INVOICING. BUDGET DETAIL AND REPORTING PROVISIONS Exhibit C GENERAL TERMS & CONDITIONS Exhibit D SPECIAL CONDITIONS — CLEAN BEACHES GRANT PROGRAM GRANTEE REPRESENTATIONS. 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. IN WITNESS THEREOF, the parties have executed this Agreement on the dates set forth BY cam.— (.._lL� By: W, — Gran a Sigma nature �� rrin Polhemus, Deputy Miredfor State Water Resources Control Board, Division of Financial Assistance David Kiff q/'glZotCv Grantee Typed/Printed Name Date City Manager Title cl-l3-14 Date Attest Dare:: C City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 3 of 21 EXHIBITA SCOPE OF WORK— WORK TO BE PERFORMED BY THE GRANTEE A. PLANS AND GENERAL COMPLIANCE REQUIREMENTS 1. In order for the State Water Board and Regional Water Quality Control Board (Regional Water Board) staff to verify work was adequately performed or conducted, Global Positioning System (GPS) information for project site and monitoring locations must be identified for this Project. Submittal requirements for GPS data are available at: http:/Avww.waterboards.ca.gov/water issues/oroarams/grants loans/grant info/docs/aos odf. 2. The Grantee shall prepare and submit a Monitoring and Reporting Plan (MRP) that does all of the following: 1) identifies the nonpoint source(s) of pollution to be prevented or reduced by the Project; 2) describes the baseline water quality or quality of the environment to be addressed; 3) describes the manner in which the Project will be effective in preventing or reducing pollution and in demonstrating the desired environmental results; and 4) describes the monitoring program, including, but not limited to, the methodology, frequency, and duration of monitoring. The MRP shall be organized as follows, and may be submitted as separate documents or in one report. 2.1 Project Assessment and Evaluation Project Assessment and Evaluation Plan (PAEP) describes the manner in which the Project will be effective in preventing or reducing pollution and in demonstrating the desired environmental results. The PAEP details the methods of measuring Project benefits and reporting them in accordance with a PAEP. Grantee shall not implement monitoring and performance assessment and/or evaluation actions prior to PAEP approval by the Grant Manager. Guidance for preparing the PAEP is available at: http://www.waterboards.ca.govtwater issues/programs/grants loans/paep/index.shtml. 2.2 Monitoring Plan All projects that include water quality or environmental monitoring must prepare a Monitoring Plan (MP). At a minimum, all MPs must: 1) describe the baseline water quality or quality of the environment to be addressed; 2) identify the non -point source(s) of pollution to be prevented or reduced by the Project; and 3) provide GPS information for all sampling locations. Furthermore, every project must collect pre- and post -AB 411 (Health and Saf. Code, § 115875 at seq.) data from the local county environmental health department for analysis in the final report. The MP must include a description of the monitoring program and objectives, types of constituents to be monitored, methodology, the frequency and duration of monitoring, and the sampling location for the monitoring activities. Any costs related to monitoring data collected prior to approval of the MP or not supported by the approved MP will not be reimbursed. Changes to the MP must be submitted to the Grant Manager for review and a decision regarding approval prior to implementation. Guidance for preparing an MP is available at: http://www.waterboards.ca,gov/water issues/programs/grants loans/grant info/index.shtm#plans. 2.3 Quality Assurance and Project Plan If water quality monitoring is undertaken, the Grantee shall also prepare, maintain, and implement a Quality Assurance Project Plan (QAPP) in accordance with the State Water Board's Surface Water Ambient Monitoring Program's (SWAMP) QAPP and data reporting requirements, and the USEPA QAPP, EPA AQ/R5, 3/01. Water quality monitoring data includes physical, chemical, and biological monitoring of any surface water. The QAPP shall be submitted to the State Water Board's Quality Assurance Officer for review and a decision regarding approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. Guidance for preparing the QAPP is available at: City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 4 of 21 http7/twww.waterboards.ca.gov/water issues/programs/grants loans/grant info/index.shtml. The Grantee shall upload a pdf version of the final approved document(s) to the Financial Assistance Application Submittal Tool (FAAST) system. 2.4 Data Management If proof of submission of water quality data to California Environmental Data Exchange Network (CEDEN) is required in the Table of Items for Review, the Grantee shall upload all water quality data obtained through its implementation of the MP to CEDEN. The Grantee shall also provide a receipt of successful data submission, which is generated by CEDEN, to the Grant Manager prior to submitting a final invoice. Guidance for submitting data, including required minimum data elements and data formats, is available at htto://www.ceden.org or the Regional Data Centers (RDCs) (Moss Landing Marine Lab, San Francisco Estuary Institute, Southern California Coastal Water Research Project, or Central Valley RDC). Contact information for the RDCs is included in the CEDEN web link. 3. Activities supported by grant funds are projects under the California Environmental Quality Act (CEQA) and must comply with CEQA requirements. Work on the Project cannot begin until the State Water Board has reviewed the CEQA documentation submitted by the Grantee and given environmental clearance. If the work is conducted on federal land, the Grantee must also comply with the National Environmental . Policy Act (NEPA). Proceeding with work subject to CEQA and/or NEPA without environmental clearance by the State Water Board shall constitute a breach of a material provision of this Agreement. 4. If public agency approvals, entitlements or permits are required, such approvals, entitlements or permits must be obtained and signed copies submitted to the Grant Manager before work begins. If the Project is carried out on lands not owned by the Grantee, the Grantee must obtain adequate rights of way for the useful life of the Project. 5. State Disclosure Requirements — Include the following disclosure statement in any document, written report, or brochure prepared in whole or in part pursuant to this Agreement: "Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board. The contents of this document do not necessarily reflect the views and policies of the State Water Resources Control Board, nor does mention of trade names or commercial products constitute endorsement or recommendation for use." Signage shall be posted in a prominent location at Project site (if applicable) or at the Grantee's headquarters and shall include the State Water Board color logo (available from the Grant Manager and Program Analyst): Water Boards and the following disclosure statement: "Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board." 6. The Grantee shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within Item 5 of this exhibit. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 5 of 21 B. PROJECT -SPECIFIC REQUIREMENTS 1. Project Management 1.1. Provide all technical and administrative services, as needed, for Project completion; monitor, supervise, and review all work performed; and coordinate budgeting and scheduling to ensure the Project is completed within budget, on schedule, and in accordance with approved procedures, applicable laws, and regulations. 1.2 Notify the Grant Manager at least fifteen (15) working days in advance of upcoming meetings. 1.3 Conduct pre-, during, and post -construction photo documentation and submit to the Grant Manager. 1.4 Conduct periodic and final site visits with the Grant Manager. 2. Planning, Design, and Engineering 2.1 Prepare and submit the preliminary design plans and specifications electronically to the Grant Manager for review and approval for the installation of two (2) low -flow diversion structures in the approximately four hundred (400) acre Arches drainage area within the cities of Newport Beach and Costa Mesa, as follows: 2.1.1 One (1) low -flow diversion structure in the existing storm drain adjacent to Newport Boulevard to divert flows to the sanitary sewer that are less than or equal to 0.26 cubic feet per second; and 2.1.2 One (1) low -flow diversion structure in the existing storm drain in the Hoag Hospital complex to divert flows to the sanitary sewer that are less than or equal to 0.26 cubic feet persecond. 2.2 Complete the final design plans and specifications and prepare a summary identifying any changes from the preliminary plans completed in Item 2.1. Submit the final design plans and specifications and summary of changes electronically to the Grant Manager for review and approval. 2.3 Complete the bid documents in accordance with the approved design plans, after receiving all required approvals, and advertise the Project for bid. Submit the advertised bid documents electronically to the Grant Manager. 3. Construction and Implementation 3.1 Award the construction contract(s) and submit the Notice(s) to Proceed and awarded contract(s) for the Project electronically to the Grant Manager. 3.2 Construct the Project in accordance with the approved design plans and specifications in Item 2.2. 3.3 Submit any proposed changes that arise during construction that may affect the Project's benefits listed in Item 2.1, schedule, or costs, electronically to the Grant Manager for approval. 3.4 Submit as -built drawings and provide a summary of changes from the approved design plans and specifications that occurred during construction electronically to the Grant Manager. 3.5 Prepare and submit the Operations and Maintenance Plan electronically to the Grant Manager. 4. Monitoring and Performance 4.1 Monitor in accordance with the approved MRP. City of Newport Beach State Water Board Grant Agreement No. 01612402 Page 6 of 21 4.2 Analyze monitoring results, document implementation of monitoring in accordance with the approved MRP, and include a summary report of the monitoring results in the associated quarterly progress report. A summary of all monitoring and data analysis shall be included in the Final Project Report. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 7 of 21 TABLE OF ITEMS FOR REVIEW ITEM DESCRIPTION CRITICAL DUE DATE ESTIMATED DUE DATE EXHIBITA— SCOPE OF WORK— WORK TO BE PERFORMED BY THE GRANTEE A PLANS AND GENERAL COMPLIANCE REQUIREMENTS 1. GPS information for Project site and monitoring locations 90 Days After Execution 2. Monitoring and Reporting Plan 2.1. Project Assessment and Evaluation Plan (PAEP) 150 Days After Execution 2.2. Monitoring Plan (MP) 150 Days After Execution 2.3. Quality Assurance Project Plan (QAPP) 150 Days After Execution 2.4 Proof of Water Quality Data Submission to CEDEN Before Final Invoice 3. Copy of final CEQA/NEPA Documentation July 31, 2017 4. Public Agency Approvals, Entitlements or Permits As Needed B. PROJECT -SPECIFIC REQUIREMENTS 1. Project Management 1.2 Notification of Upcoming Meetings Ongoing 1.3 Pre-, During, Post -Construction Photo Documentation Ongoing 1.4 Periodic and Final Site Visits Ongoing 2. Planning, Design, and Engineering 2.1 Preliminary Design Plans and Specifications February 2017 2.2 Final Design Plans and Summary of Changes June 2017 2.3 Advertised Bid Documents October 2017 3. Construction and Implementation 3.1 Notice to Proceed December 31, 2017 3.3 Proposed Changes As Needed 3.4 As -Built Drawings June 30, 2018 3.5 Operations and Maintenance Plan July 2018 EXHIBIT B— INVOICING, BUDGET DETAIL, AND REPORTING PROVISIONS A. INVOICING Quarterly G. REPORTS 1. Progress Reports within forty-five (45) days following the end of the calendar quarter (March, June, September, and December) Quarterly City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 8 of 21 ITEM DESCRIPTION CRITICAL DUE DATE ESTIMATED DUE DATE EXHIBIT B — INVOICING, BUDGET DETAIL, AND REPORTING PROVISIONS 2. Annual Progress Summaries Annually by 11/15 3 Natural Resource Projects Inventory (NRPI) Survey Form (If applicable) Before Final Invoice 4. Draft Final Project Report December 31, 2018 5. Final Project Report January 31, 2019 6. Final Project Summary Before Final Invoice 7. Final Project Inspection and Certification Before Final Invoice City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 9 of 21 EXHIBIT B INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS A. INVOICING 1. Invoices shall be submitted using the invoice template provided by the State Water Board. The invoice must be itemized based on the line items specified in the Budget. The original invoice shall be submitted to the State Water Board's Grant Manager on a quarterly basis consistent with the reporting schedule in Section G.1 of this exhibit. The address for submittal is: Spencer Joplin, Grant Manager State Water Resources Control Board Division of Financial Assistance 1001 1 Street, 16" Floor Sacramento, CA 95814 2. Invoices submitted in any other format than the one provided by the State Water Board will cause an invoice to be disputed. In the event of an invoice dispute, the State Water Board'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. The State Water Board Grant Manager has the responsibility for approving invoices. 3. Supporting documentation (e.g., receipts) must be submitted with each invoice to request reimbursement for grant funds as well as to support Match Funds invoiced. The amount claimed for the Personnel Services line item and Professional and Consultant Services line item must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Invoice payment shall be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice. 4. The Grantee shall not request disbursement for any cost until such cost has been incurred and has been paid by or is due and payable by the Grantee. Although it is agreed that actual payment of such cost by the Grantee is not required as a condition of the grant disbursement, all grant disbursements received by the Grantee shall be paid to contractors and vendors within thirty (30) days from receipt of the funds. In the event that the Grantee fails to disburse grant funds to contractors or vendors within thirty (30) days from receipt of the funds, the Grantee shall immediately return such funds to the State Water Board. Interest shall accrue on such funds from the date of disbursement through the date of mailing of funds to the State Water Board. If the Grantee held such funds in interest-bearing accounts, any interest earned on the funds shall also be due to the State Water Board. 5. 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. 6. Notwithstanding any other provision of this Agreement, the Grantee agrees that the State Water Board 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 State Water Board. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 7. The invoice shall contain the following information: a. The date of the invoice; b. The time period covered by the invoice, i.e., the term "from" and "to c. The total amount due; and d. Original signature and date (in ink) of Grantee or its authorized representative. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 10 of 21 e. Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN MARCH 31. 2019. B. PROHIBITION OF INDIRECT COSTS The grant funds for this Agreement are the proceeds from the sale of general obligation bonds. As such, grant funds may not be used for any indirect costs. "Indirect Costs" means those costs that are incurred for a common orjoint purpose benefiting more than one cost objective and are not readily assignable to the Project (i.e., costs that are not directly related to the Project). Examples of Indirect Costs include, but are not limited to: central service costs; general administration of the Grantee; non -project -specific accounting and personnel services performed within the Grantee organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non -project -specific facilities; tuition and conference fees; and, generic overhead or markup. Any invoice submitted including Indirect Costs will cause that invoice, in its entirety, to be disputed and will not be paid until the dispute is resolved. This prohibition applies to the Grantee and any subcontract or sub -agreement for work on the Project that will be reimbursed with grant funds pursuant to this Agreement. (Gov. Code, § 16727.) C. BUDGET CONTINGENCY CLAUSE The maximum amount to be encumbered under this Agreement for the 2016-17 fiscal year ending June 30, 2017 shall not exceed EIGHT HUNDRED THIRTY-NINE THOUSAND, FIVE HUNDRED DOLLARS ($839,500). 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 State Water Board 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 this Agreement's funding for any fiscal year is reduced or deleted by the Budget Act, by Executive Order, or by order of the Department of Finance, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to the Grantee to reflect the reduced amount. D. LINE ITEM BUDGET Direct Project Administration Costs Plan n ing/Design/Eng ineering/Environmental Equipment ($5,000 or more per item) ConstructionAm plementation Mon itorin g/Performance Education/Outreach TOTAL E. BUDGET LINE ITEM FLEXIBILITY PROP 84 MATCH TOTAL 60,000 $ 20,000 $ 80,000 20,000 $ 250,000 $ 270,000 0 $ 0 $ 0 700,000 $ 0 $ 700,000 59,500 $ 0 $ 59,500 0 $ 0 $ 839,500 $ 270,000 $ 1,109,500 1. Line Item Adjustment(s). Subject to the prior review and approval of the Grant Manager, adjustments between existing line item(s) maybe used to defray allowable direct costs up to fifteen percent (15%) of the total grant amount (excluding Match Funds), including any amendment(s) thereto. Line item City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 11 of 21 adjustments in excess of fifteen percent (15%) shall require a formal Agreement amendment. If the Line Item Budget includes an amount for Personnel Services, that amount is based on the hours, classifications, and rates submitted by the Grantee in its application. Any changes to the hours, classifications, and rates must be approved, in advance and in writing, by the Grant Manager. Procedure to Request an Adjustment. Grantee may submit a request for an adjustment in writing to the State Water Board. 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 State Water Board may also propose adjustments to the budget. 3. Remaining Balance. In the event the Grantee does not submit invoices requesting all of the funds encumbered under this Grant Agreement, any remaining funds revert to the State. The State Water Board will mail a Notice of Project Completion letter to the Grantee stating that the project file is closed, the final invoice is being processed for payment, and any remaining balance will be disencumbered and unavailable for further use under the Grant Agreement. F. MATCH FUNDS 1. The Grantee agrees to provide match funds in the amount of TWO HUNDRED SEVENTY THOUSAND DOLLARS ($270,000) (Match Funds) for this Project. This Match Funds amount is based on Line Item Budget categories, funding sources, and amounts submitted by the Grantee in its application and during the negotiation of this Agreement Any Match Funds line item changes or adjustments in Match Funds classifications or sources requested by Grantee must be approved, in advance and in writing, by the Grant Manager. 2. If, upon completion of the Project, the Grantee has provided match funds in an amount that is less than the Match Funds amount set forth in paragraph F.1 above, then the State Water Board may proportionately reduce the grant amount and/or Grantee's Match Funds amount, provided the reduced amount(s) satisfy statutory requirements and State Water Board Guidelines. G. REPORTS 1. PROGRESS REPORT. Grantee shall submit quarterly progress reports to the State Water Board's Grant Manager within forty-five (45) days following the end of the calendar quarter (March, June, September, and December). a. The progress reports shall provide a brief description of the work performed, accomplishments during the quarter, milestones achieved, monitoring results (if applicable), and any problems encountered in the performance of the work under this Agreement. The Grantee shall document all contractor activities and expenditures in progress reports. b. The invoice should accompany the progress report. The invoice should reflect charges for the work completed during the reporting period covered by progress report. The invoice cannot be paid prior to submission of a progress report covering the invoice reporting period. 2. ANNUAL PROGRESS SUMMARIES. Prepare and provide an Annual Progress Summary annually by November 15 that covers the time period from October 1 of the previous year through September 30 of the current year. The summary must be no more than two (2) pages, and shall include pictures as appropriate. Upload an electronic copy of the Annual Progress Summary in pdf format to the FAAST system. The summary shall include the following: a. A summary of the conditions the Project is meant to alleviate, the Project's objective, the scope of the Project, and a description of the approach used to achieve the Project's objective. b. A summary of the progress made to date, significant milestones achieved, and the current schedule of completing the Project. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 12 of 21 c. An evaluation of the effectiveness of the Project to date in preventing or reducing pollution and alleviating the Project's original conditions. 3. NATURAL RESOURCE PROJECTS INVENTORY (NRPI) SURVEY FORM. If available at the completion of this Project, the Grantee shall complete and submit electronically a NRPI Project Survey Form found at http://www.ice.ucdavis.edu/nrpi. 4. DRAFT FINAL PROJECT REPORT. Prepare and submit to the Grant Manager, for review and comment, a Draft Final Project Report in a format provided by the Grant Manager. 5. FINAL PROJECT REPORT. Prepare a Final Project Report that addresses, to the extent feasible, comments made by the Grant Manager on the Draft Final Project Report. Submit one (1) reproducible master and an electronic copy of the final. Upload an electronic copy of the final report in pdf format to the FAAST system. 6. FINAL PROJECT SUMMARY. Prepare a brief summary of the information contained in the Final Project Report, including before and after pictures, as appropriate. Upload an electronic copy of the Final Project Summary in pdf format to the FAAST system. 7. FINAL PROJECT INSPECTION AND CERTIFICATION. Upon completion of the Project, the Grantee shall provide for a final inspection and shall certify that the Project has been completed in accordance with this Agreement, any final plans and specifications submitted to the State Water Board, and any amendments or modifications thereto. If the Project involved the planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, or other professionals, the final inspection and certification shall be conducted by a California Registered Civil Engineer or other appropriate California registered professional. The results of the final inspection and certification shall be provided to the Grant Manager. 8. The Grantee agrees to expeditiously provide, during work on the Project and throughout the term of this Agreement, such reports, data, information, and certifications that may be reasonably required by the State Water Board. H. 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. I. AUDIT DISALLOWANCES The Grantee agrees it shall return any audit disallowances to the State Water Board. J. FRAUD AND MISUSE OF PUBLIC FUNDS All invoices submitted shall be accurate and signed under penalty of perjury. Any and all costs submitted pursuant to this Agreement shall only be for the tasks set forth herein. The Grantee shall not submit any invoice containing costs that are ineligible or have been reimbursed from other funding sources unless required and specifically noted as such (i.e., match costs). Any eligible costs for which the Grantee is seeking reimbursement shall not be reimbursed from any other source. Double or multiple billing for time, services, or any other eligible cost is illegal and constitutes fraud. Any suspected occurrences of fraud, forgery, embezzlement, theft, or any other misuse of public funds may result in suspension of disbursements of grant funds and/or termination of this Agreement requiring the repayment of all funds disbursed hereunder. Additionally, the Deputy Director of the Division of Financial Assistance may request an audit pursuant to Exhibit C, paragraph 4 and refer the matter to the Attorney General's Office or the appropriate district attorney's office for criminal prosecution or the imposition of civil liability. (Civ. Code, §§ 1572-1573; Pen. Code, §§ 470, 489-490.) City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 13 of 21 EXHIBIT C GENERAL TERMS & CONDITIONS 1. AGRICULTURAL WATER MANAGEMENT PLAN CONSISTENCY: If the Grantee is an agricultural water supplier as defined by Water Code section 10608.1 2, Grantee must comply with Agricultural Water Management Planning requirements as mandated by Water Code section 10852. 2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Agreement is binding on any of the parties. 3. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the State Water Board, 4. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the written consent of the State Water Board. 5. AUDIT: The Grantee agrees the State Water Board, the Bureau of State Audits, the Governor of the State, the Internal Revenue Service, or any authorized representative of the foregoing shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The Division of Financial Assistance (Division), at its option, may call for an audit of financial information relative to the Project, where the Deputy Director of the Division determines that an audit is desirable to assure program integrity or where such an audit becomes necessary because of federal requirements. Where such an audit is called for, the audit shall be performed by a certified public accountant independent of the Grantee and at the cost of the Grantee. The audit shall be in the form required by the Division. The Grantee agrees to maintain such records for a possible audit for a minimum of thirty-five (35) years after final payment, unless a longer period of records retention is stipulated. The 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, the 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. (Gov. Code, § 8546.7; Pub. Contract Code, § 10115 at seq.) 6. BONDING: Where contractors are used, the Grantee shall not authorize construction to begin until each 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 $25,000.00. (Civ. Code, § 9550; Pub. Contract Code, § 7103.) 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, or the useful life of the Project, whichever is longer. 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. CONFLICT OF INTEREST: The Grantee certifies that it is in compliance with applicable state and/or federal conflict of interest laws. 10. CONTINUOUS USE OF PROJECT; LEASE OR DISPOSAL OF PROJECT: The Grantee agrees that, except as provided in the Agreement, it will not abandon, substantially discontinue use of, lease, or dispose of the Project or any significant part or portion thereof during the useful life of the Project without prior written approval of the Deputy Director of the Division. Such approval may be conditioned as determined to be appropriate by the Deputy Director of the Division, including a condition requiring repayment of all grant funds or any portion of all remaining grant funds covered by this Agreement together with accrued interest and any penalty assessments which may be due. City of Newport Beach State Water Board Grant Agreement No. Of 612402 Page 14 of 21 11. 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. 12. DATA MANAGEMENT: This Project includes appropriate data management activities so that Project data can be incorporated into appropriate statewide data systems. 13. DELTA PLAN CONSISTENCY FINDINGS: If the Grantee is a state or local public agency and the Project is covered by the Delta Plan, Grantee must submit certification of Project consistency with the Delta Plan to the Delta Stewardship Council according to the requirements of Water Code section 85225 and California Code of Regulations, Title 23, section 5002. 14. DISPUTES: The Grantee shall continue with its 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 Deputy Director of the 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 State Water Board's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the State Water Board's Executive Director. The decision of the State Water Board's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the 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 State Water Board, or any official or representative thereof, on any question of law. 15. ENVIRONMENTAL CLEARANCE (CEQA/NEPA/STREAMBED ALTERATION): a. 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 and the State Water Board has given environmental clearance. No work that is subject to an Environmental Impact Report or a Mitigated Negative Declaration may proceed until and unless approved by the Deputy Director of the Division. Such approval is fully discretionary and shall constitute a condition precedent to any work for which it is required. Proceeding with work subject to CEQA and/or NEPA without environmental clearance by the State Water Board shall constitute a breach of a material provision of this Agreement. b. If this Project includes modification of a river or stream channel, it must fully mitigate environmental impacts resulting from the modification. The Grantee must provide documentation that the environmental impacts resulting from such modification will be fully mitigated considering all of the impacts of the modification and any mitigation, environmental enhancement, and environmental benefit resulting from the Project, and whether, on balance, any environmental enhancement or benefit equals or exceeds any negative environmental impacts of the Project. 16. 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. 17. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 18. GRANTEE'S RESPONSIBILITY FOR WORK: The Grantee shall be responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement, including, but not limited to, contractors, City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 15 of 21 subcontractors, suppliers, and providers of services. The Grantee shall be responsible for any and all disputes arising out of its contracts for work on the Project, including but not limited to payment disputes with contractors and subcontractors. The State will not mediate disputes between the Grantee and any other entity concerning responsibility for performance of work. 19. 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. 20. 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, employees or agents of the State Water Board. 21. INSPECTION: The State Water Board, the Bureau of State Audits, or any authorized representative of the foregoing, shall have suitable access to the Project site at all reasonable times during Project implementation and thereafter for the useful life of the Project to ascertain compliance with this Agreement and its goals. The Grantee acknowledges that the Project records and location are public records. 22. INSURANCE: Throughout the useful life of the Project, 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 (30) days prior written notice to the State Water Board. 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. 23. NONDISCRIMINATION: a. During the performance of this Agreement, the Grantee and its consultants and contractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, sexual orientation, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. b. The Grantee, its consultants, and contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. c. The Grantee, its consultants, and contractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12990) and the applicable regulations promulgated thereunder (Cal. Code Regs., tit. 2, § 7285 at seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990, set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. d. The Grantee, its consultants, and contractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement, if any. e. The Grantee shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. Failure by the Grantee to carry out these requirements is a breach of a material provision of this Agreement which may result in its termination. 24. NO THIRD PARTY RIGHTS: The parties to this Grant Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this Grant Agreement, or of any duty, covenant, obligation or undertaking established herein. City of Newport Beach State Water Board Grant Agreement No, D1612402 Page 16 of 21 25. NOTICE: a. The Grantee shall notify the State Water Board prior to conducting construction, monitoring, demonstration, or other implementation activities such that State Water Board and/or Regional Water Board staff may observe and document such activities. b. The Grantee shall promptly notify the State Water Board 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 State Water Board, and the State Water Board has given written approval for such change. c. Discovery of any potential archeological or historical resource. Should a potential archeological or historical resource be discovered during implementation of the Project, the Grantee agrees that all work in the area of the find will cease until a qualified archeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Deputy Director of the Division has determined what actions should be taken to protect and preserve the resource. The Grantee agrees to implement appropriate actions as directed by the Division. d. Discovery of any unexpected endangered or threatened species, as defined in the federal or California Endangered Species Acts. Should a federal or state protected species be unexpectedly encountered during implementation of the Project, the Grantee agrees to promptly notify the Deputy Director of the Division. This notification is in addition to the Grantee's obligations under the federal or state Endangered Species Acts. e. The Grantee shall notify the State Water Board 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 State Water Board's representatives. f. The Grantee shall promptly notify the State Water Board in writing of completion of work on the Project. g. The Grantee shall promptly notify the State Water Board 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 thirty (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 ninety (90) days or more beyond the estimated date of completion of construction previously provided. 26. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as part of the Project throughout the useful life of the Project, consistent with the purposes for which this Grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the State Water Board shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Deputy Director of the Division. 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. 27. PERMITS, CONTRACTING, 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, if any, or as are specifically authorized by the State Water Board'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 State Water Board's Grant Manager. 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 City of Newport Beach State Water Board Grant Agreement No, D1612402 Page 17 of 21 USEPA's List of Violating Facilities. (40 C.F.R., part 31.35; Gov. Code, § 4477) http://echo.eoa.aov. 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, the California Department of Industrial Relations (DIR), or Grantee; b. Have not within a three (3) -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and, d. Have not within a three (3) -year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default. 28. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of the Labor Code regarding prevailing wages and shall monitor all contracts subject to reimbursement from this Agreement to assure that the prevailing wage provisions of the Labor Code are being met. The Grantee certifies that it has a Labor Compliance Program (LCP) in place or has contracted with a third party that has been approved by the Director of DIR to operate an LCP. Current DIR requirements may be found at http://www.dir.ca.gov/lcp.asp. For more information, please refer to DIR's Public Works Manual at: http://www.dir.ca.00v/dlse/PWManualCombined.pdf. 29. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. All technical reports required pursuant to this Agreement that involve planning, investigation, evaluation, or design, or other work requiring interpretation and proper application of engineering or geologic sciences, shall be prepared by or under the direction of persons registered to practice in California pursuant to Business and Professions Code, sections 6735, 7835, and 7835.1. To demonstrate compliance with California Code of Regulations, title 16, sections 415 and 3065, all technical reports must contain a statement of the qualifications of the responsible registered professional(s). As required by these laws, completed technical reports must bear the signature(s) and seal(s) of the registered professional(s) in a manner such that all work can be clearly attributed to the professional responsible for the work. 30. 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; a. 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, b. If a 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. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 18 of 21 31. RELATED LITIGATION: Under no circumstances may a Grantee use funds from any disbursement under this Grant Agreement to pay costs associated with any litigation the Grantee pursues against the State Water Board, any Regional Water Board, or any other party. Regardless of the outcome of any such litigation, and notwithstanding any conflicting language in this Agreement, the Grantee agrees to complete the Project funded by this Agreement or to repay all of the grant funds plus interest. 32. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, audio and video recordings, 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 State Water Board 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. 33. 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 State Water Board 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 State Water Board and the State against any loss or liability arising out of any claim or action brought against the State Water Board 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 State Water Board 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. 35. STATE WATER BOARD 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 State Water Board 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 State Water Board shall not preclude the State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own filing costs and attorney fees. 35. SUPPLEMENTAL ENVIRONMENTAL PROJECTS: Grant Funds shall not be used for supplemental environmental projects required by Regional Water Boards. 36. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written notice at any time prior to completion of the Project, at the option of the State Water Board, 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 State Water Board. In the event of termination, the Grantee agrees, upon demand, to immediately repay to the State Water Board 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. City of Newport Beach State Water Board Grant Agreement No. D1612402 Page 19 of 21 37. TIMELINESS: Time is of the essence in this Agreement. The Grantee shall proceed with and complete the Project in an expeditious manner. 38. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those set by the California Department of Human Resources. These rates may be found at http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. Reimbursement will be at the State travel and per diem amounts that are current as of the date costs are incurred by the Grantee. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the Grant Manager. 39. 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. 40. URBAN WATER MANAGEMENT: The Grantee certifies that this Project complies with the Urban Water Management Planning Act (Water Code, § 10610 et seq.). This shall constitute a condition precedent to this Agreement. 41. URBAN WATER SUPPLIER: If the Grantee is an "urban water supplier" as defined by Water Code section 10617, Grantee must charge each customer for actual water volume measured by water meter according to the requirements of Water Code sections 526 and 527. Section 527 further requires that such suppliers not subject to section 526 install water meters on all municipal and industrial service connections within their service area by 2025. 42. 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 sewer pipelines and sewage treatment plant structures and twenty (20) years for all else. 43. VENUE: The State Water Board 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. 44. WAIVER AND RIGHTS OF THE STATE WATER BOARD: 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. 45. WATER CONSERVATION AND EFFICIENCY PROGRAMS: The Grantee acknowledges that it has appropriate water conservation and efficiency programs in place, and that this provision constitutes a condition of the grant award. A web link with examples of water conservation and efficiency programs is available at: http://www.waterboards.ca.gov/waterrights/water issues/programs/drought/conservation.shtml. The Grantee also agrees to comply with the State Water Board's Drought Emergency Water Conservation regulations in sections 863-865 of title 23 of the California Code of Regulations. If applicable, the Grantee agrees to include a discussion of progress and compliance in its reports submitted pursuant to Exhibit B of this Agreement. 46. WATER RIGHTS: The Grantee acknowledges that its eligibility for this Grant award is conditioned on its compliance with Water Code section 5103(e), if applicable. The Grantee further certifies that it is not required to file a Statement of Diversion and Use pursuant to Water Code section 5101. 47. WATERSHED MANAGEMENT PLAN CONSISTENCY: The Grantee certifies that any watershed protection activity undertaken as part of this Project will be consistent with the applicable, adopted, local watershed . management plans and the applicable Water Quality Control Plan (Basin Plan and/or Statewide) adopted by a Regional Water Board or the State Water Board, where such plans exist. Any such activity occurring in the San Gabriel and Los Angeles watersheds shall be consistent with the San Gabriel and Los Angeles River Watershed and Open Space Plan as adopted by the San Gabriel and Lower Los Angeles Rivers and Mountain Conservancy and the Santa Monica Mountains Conservancy. City of Newport Beach State Water Board Grant Agreement No, D1612402 Page 20 of 21 48. WITHHOLDING OF GRANT DISBURSEMENTS: The State Water Board 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 Newport Beach State Water Board Grant Agreement No. D1612402 Page 21 of 21 EXHIBIT D SPECIAL CONDITIONS — CLEAN BEACHES GRANT PROGRAM 1. The Grantee certifies that the Project is intended to restore and protect the water quality and environment of coastal waters, estuaries and nearshore waters, or groundwater. Further, the Grantee hereby warrants and represents that this Project is capable of contributing to sustained, long-term water quality or environmental restoration or protection benefits for a period of twenty (20) years and to address the causes of degradation, rather than symptoms. 2. This Project is consistent with water quality and resource protection plans prepared, implemented, or adopted by the State Water Board, the applicable Regional Water Board, and the State Coastal Conservancy. 3. Notwithstanding Exhibit A, the Grantee shall submit a monitoring and reporting plan that will do all of the following: a. Identify the nonpoint source or sources of pollution to be prevented or reduced by Project; b. Describe the baseline water quality or quality of the environment to be addressed; c. Describe the manner that Project will prevent or reduce pollution and demonstrate desired environmental results; and, d. Describe the monitoring program, including, but not limited to, the methodology, and the frequency and duration of monitoring. 4. Notwithstanding Exhibit A, upon completion of the Project, the Grantee shall submit a report to the State Water Board that summarizes the completed activities and indicates whether the purposes of the Project have been met. The report shall include information collected by the recipient in accordance with the Project monitoring and reporting plan, including a determination of the effectiveness of the Project in preventing or reducing pollution, and the results of the monitoring program. 5. The Grantee certifies that if a recovery plan for coho salmon, steelhead trout, or other threatened or endangered aquatic species exists, this Project is consistent with such a plan and, if feasible, implements actions in such a plan. 6. The Grantee certifies that any real property or interests in real property acquired for this Project shall be acquired from a willing seller. 7. As part of this Project, the Grantee shall include a monitoring component. The results of this monitoring component shall be submitted as set forth in Exhibit A, paragraphs A.2.2 & A.2.3 of this Agreement. 8. The Grantee certifies it is providing a match of at least 15% of the capital costs to be spent on this Project, as such costs are defined under Public Resources Code section 32025. 9. The Grantee certifies that it has obtained or will obtain all necessary approvals, entitlements, and permits required to implement the Project. Failure to obtain any necessary approval, entitlement, or permit shall constitute a breach of a material provision of this Agreement.