HomeMy WebLinkAboutStaff Report 449-10TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS
DATE: DECEMBER 13, 2010 CMR:449:10
REPORT TYPE: CONSENT
SUBJECT: Approval of Agreement with Association of Bay Area Governments for
Local Agency Participation in Grant-Funded Bay Area-Wide Trash
Capture Demonstration Project
RECOMMENDATION
Staff recommends that Council authorize the City Manager or his designee to execute the
attachea agreement with the Association of Bay Area Governments (ABAG) for Local Agency
Participation in the Grant-Funded Bay Area-Wide Trash Capture Demonstration Project and to
negotiate and execute a related procurement and design contract with an ABAG-preferred trash
capture device vendor.
BACKGROUND
In October 2009, the San Francisco Bay Regional Water Quality Control Board (Water Board)
issued a new regional National Pollutant Discharge Elimination System (NPDES) permit to the
City of Palo Alto and 76 other Bay Area entities for discharge of municipal storm water to local
creeks and San Francisco Bay. This Municipal Regional Permit (MRP) specifies programs and
measures to be conducted by local agencies to minimize storm water pollution over the next five
years. One of the key areas of emphasis in the MRP is a new mandate to reduce the amount of
trash entering local waterways via municipal storm drain systems. The MRP requires the
development and implementation of a Bay Area-wide plan to reduce the amount of trash by 40%
by the year 2014, with the stated goal of completely eliminating trash attributable to storm drains
by 2022.
The two primary trash management requirements are the identification and annual clean-up of
trash hot spots in local creeks and the installation of trash capture devices in municipal storm
drain systems. The MRP specifically requires the City of Palo Alto to identify two creek trash
hot spots and to install manufactured devices in its storm drain system that will achieve "full
capture" of trash from atributary watershed area of at least 84 acres prior to July 2014. The "full
capture" standard is defined in the MRP as "any single device or series of devices that traps all
particles retained by a 5 mm mesh screen and has a design treatment capacity of not less than the
peak flow rate resulting from a one-year, one-hour, storm in the sub-drainage area". In practical
terms, the full capture devices must trap solids in storm water runoff down to the size of a
cigarette butt. The devices are designed to filter out and capture trash without decreasing the
capacity of the storm drain system to convey runoff during storm events.
CMR:449:10 Page 1 of4
In order to help local agencies to comply with the MRP's trash management requirements, the
Association of Bay Area Governments (ABAG) has secured a $5 million grant from the State
Water Resources Control Board to be used for the purchase of trash capture devices. ABAG
staff and regional storm water managers have developed a formula to distribute the grant dollars
to individual local agencies based on their population and amount of commercially-zoned land
area. The initial allocation of ABAG grant funds available to the City of Palo Alto is $52,445.
This allocation may increase depending on the level of participation by Bay Area agencies in the
ABAG grant program. Any allocations not claimed during the initial phase of the program (by
December 31, 2010) will be redistributed to the participating agencies. ABAG also conducted a
Request for Proposals (RFP) process to solicit written proposals from vendors to provide trash
capture devices and related sizing, siting,' and design services to local agencies. ABAG and
Water Board staff have reviewed the proposals and determined which devices comply with the
MRP's trash capture requirements. Local agencies may piggyback on the proposals as a means
to select a preferred vendor to install a trash capture device in their jurisdiction.
DISCUSSION
Public Works staff has been devising a City-specific trash management plan since the MRP was
adopted by the Water Board in October 2009. Staff has selected segments of Adobe and
M~t~dero~Creek~near Highway 101 as Palo Alto's two designated trash hot spots and worked
cooperatively with staff from the cities of Menlo Park and East Palo Alto and the San
Francisquito Creek Joint Powers Authority (JPA) to identify two locations along San
Francisquito Creek for their hot spots. The City of Menlo Park has selected San Francisquito
Creek between EI Camino Real and the Alma Street BicyclelPedestrian Bridge, and the City of
East Palo Alto has selected the reach of creek between Manhattan Avenue and University
Avenue. Staff led a joint effort by Palo Alto, Menlo Park, East Palo Alto, the JP A, and the San
Francisquito Watershed Project to conduct two trash clean-up events at the four hot spots during
2010. During these creek clean-ups, which were scheduled to coincide with Coastal Clean-Up
Day and National Rivers Clean-Up Day, over 6400 pounds of trash was removed from these
local creeks. These annual clean-up events have been conducted for the past five years and will
continue in the coming years. .
Public Works staff has also been studying the options for complying with the MRP's full trash
capture requirements in an effective and efficient manner. The two basic compliance strategy
options are 1) installing a large number of small-scale trash capture devices at individual storm
drain catch basins, or 2) installing one or more large-scale devices within the storm drain
pipeline network to capture trash from the entire drainage system upstream of the device(s). The
small-scale devices have a lower initial capital cost, but higher maintenance costs due to their
widespread multiple locations and a greater tendency to clog with leaves and other debris.
Although the large-scale devices cost more to purchase and install, they are relatively much
easier and less expensive to maintain. Primarily based upon the substantial potential for
maintenance savings and the limitations of Palo Alto's small storm drain maintenance staff (two
crew members and a half-time supervisor), staff has decided to utilize a single large-scale trash
capture device to comply with the MRP requirements. Based on maintenance accessibility,
watershed size requirements, and land use criteria, the device is tentatively proposed to be
installed in a 30" -diameter storm drain on Ross Road that collects runoff from the Midtown
commercial district and the surrounding residential neighborhood. The final location will be
CMR:449:1O Page 2 of4
determined during the procurement process, dependent on the exact type and size of trash
capture device selected.
ABAG has offered an initial grant program allocation of $52,445 to the City of Palo Alto for the
purchase of a trash capture device. In order to claim the available grant funds, Council must
approve the attached agreement. Based upon preliminary research conducted by staff, the grant
fund allocation will pay for approximately 70% of the estimated purchase cost of a large-scale
trash capture device. The balance of the dollars needed to purchase and install the device will
corne from funds previously appropriated in the Storm Drain System Replacement and
Rehabilitation Capital Improvement Project (CIP No. SD-06101). By executing the attached
agreement and accepting the associated grant funds, the City of Palo Alto agrees to install and
maintain a trash capture device in its municipal storm drain system for a minimum term of
twenty-five years. The agreement also obligates the City to conduct regular maintenance of the
device, to collect and document maintenance and monitoring data, and to submit the data to
ABAG on a regular periodic basis. Since the grant funds originated from the American
Reinvestment and Recovery Act (ARRA) federal stimulus program, the agreement also requires
the City to comply with various ARRA Program requirements and to specify that contractors
hired to install the trash capture device shall pay prevailing wages in compliance with the Davis
Bacon Act.
Following the approval of the attached ABAG grant agreement, staff will follow a two-step
process to purchase and install a trash capture device into the City's storm drain system. First,
staff will review the proposals received by ABAG and select a preferred vendor to 1) provide a
trash capture device compliant with the MRP full capture standard, and 2) provide design
services to prepare plans and specifications for the installation of the proposed trash capture
device. Staff will then use the plans an4; sp¢'cifications prepared by the selected vendor to solicit
competitive bids by licensed contactors to install the trash capture device. Per the terms of the
attached agreement, once the trash capture device has been installed to the satisfaction of the
City, ABAG will distribute the grant funds directly to the trash capture device vendor to partially
cover the purchase price. The City will be responsible for paying the vendor the balance of the
purchase price as well as paying the contractor the full cost of installation.
RESOURCE IMPACT
Approval of the attached agreement will secure $52,445 in funds from the ABAG Bay Area
Wide Trash Capture Demonstration Project grant program to be applied towards the City of Palo
Alto's purchase of a large-scale trash capture device. The remaining funds needed for purchase
and installation of the device are available in the Storm Drainage Fund Capital Improvement
Program Project No. SD-06101, Storm Drain System Replacement and Rehabilitation. Funds for
the long-term maintenance of the trash capture device will be available in the annual Storm
Drainage F~d maintenance and operations budget, utilizing existing st~ff resources.
POLICY IMPLICATIONS
Execution of the attached agreement is consistent with a number of policies and programs
contained in the Comprehensive Plan:
CMR:449:10 Page 3 of4
Program N-29: Actively participate in programs such as the Santa Clara Valley Urban Runoff
Pollution Prevention Program to improve the quality of stormwater runoff.
Policy N-21: Reduce non-point source pollution in urban runoff from residential, commercial,
industrial, municipal, and transportation land uses.
Program N-27: Work with regulatory agencies, environmental groups, affected businesses, and
other stakeholders to identify economically viable Best Management Practices (BMPs) for
reducing pollution.
ENVIRONMENTAL REVIEW
Approval of the attached agreement is exempt from the provisions of the California
Environmental Quality Act (CEQA) under CEQA Guidelines Section 15061(b)(3).
ATTACHMENTS
Attachment A: Agreement with Association of Bay Area Governments for Local Agency
Participation in Grant-Funded Bay Area-Wide Trash Capture Demonstration
Project
PREPARED BY: Ck~~ . JfiRESI~
Senior Engineer
APPROVED BY:
J. HAELSARTOR
CITY MANAGER APPROVAL:
cc: Janet Cox, Water Board
Adam Olivieri, Santa Clara Valley Urban Runoff Pollution Prevention Program
Storm Drain Oversight Committee
CMR:449:10 Page 4 of4
ATTACHMENT A
ASSOCIATION OF BAY AREA GOVERNMENTS
Agreement for Local Agency Participation in Grant-Funded
Bay Area-wide Trash Capture Demonstration Project
This agreement is made and entered into effective , 2010, by and between the Associati on of Bay
Area Governments (ABAG), a public entity formed under the California Joint Exercise of Powers Act,
Government Code Sections 6500, et seq. and the City of Palo Alto (Palo Alto), a City.
Recitals
A. ABAG and the California State Water Resources Control Board (State Water Board) have entered into Project
Finance Agreement No. 09-823-550 (PFA) in the amount of$5,000,000 (five million dollars) for Clean Water
State Revolving Fund Project No. C-06-6441-11 0, the Bay Area-wide Trash Capture Demonstration Project
(Project). Funding is provided by the federal American Recovery and Reinvestment Act of2009 (ARRA).
The PFA and amendments are located at http://www.bayareatrashtracker.orglcontent/contract-resources
B. The Project is comprised of the following elements: acquisition of trash capture devices (TCDs), provision
and/or installation of TCDs in existing storm drainage infrastructure, maintenance of installed TCDs and
monitoring of installed TCDs ..
C. Palo Alto is one of many local government entities that are eligible to participate in the Project (collectively,
"Potential Participants") by facilitating installation of the TCDs in its existing storm drainage infrastructure
and by mail1taining and monitoring installed TCDs, as set forth in the attached Exhibit A, Scope of Work,
which is incorporated herein by this reference.
D. ABAG issued Requests for Proposals for small capacity trash capture devices (small TCDs) and for high flow
capacity trash capture devices (large TCDs) (collectively, "TCDs") and assembled a panel of vendors for
devices in both categories that can meet minimum trash capture permit requirements when properly installed
and maintained.
E. ABAG has contracted with each vendor on the panel to furnish, and if requested, install small TCDs selected
by Participating Entities [as defined in section 2(a)]; and to provide large TCDs; and for ABAG to pay the
cost thereof.
F. ABAG has made an initial determination that each Potential Participant will have access to a portion of the
funds available under the PF A (PF A Funds) for the acquisition and installation of TCDs, all as shown in
Exhibit A-I.
ABAG and Palo Alto mutually agree as follows:
1. Initial Allocation and Current Balances. Palo Alto has access to $52,445 (fifty-two thousand, four hundred
and forty-five dollars) in PFA Funds to acquire and install TCDs. PFA Funds may only be used to fund or
defray the costs of acquiring and/or installing TCDs from the panel of vendors listed in Exhibit A-2 (see
section 3). ABAG will calculate the amount ofPFA Funds to which Palo Alto has access on any given day by
reducing the initial allocation by the amount encumbered by TCDs on order (see section 3) and amounts paid
. for accepted TCDs. This information will be posted at http://www.bayareatrashtracker.org/content/contract
resources and will be adjusted on an as-needed basis.
2. Reallocations.
(a) Palo Alto acknowledges that the success ofthe Project depends on maximum use of the PFA Funds and
that greater use may be achieved by reallocating access to PF A Funds among the Potential Participants that
have executed an "Agreement for Local Agency Participation Grant Funded SF Bay Area Trash Capture
Demonstration Project" by January 1, 2011 (Participating Entities). All reallocations will be reflected in the
current balance (see section 1).
(b) All of the initial allocations for any Potential Participants that have not executed an "Agreement for Local
Agency Participation Grant Funded SF Bay Area Trash Capture Demonstration Project" by January 1, 2011
will be reallocated among Participating Entities by ABAG at its sole discretion after soliciting input from the
Project's Technical Advisory Group. Reallocations under this provision will be implemented by written
notice from ABAG to each Participating Entity that is given access to the additional PF A Funds. Palo Alto
agrees that any written notice(s) it receives pursuant to this section will automatically amend the allocation in
section 1 in accordance with its terms.
(c) ABAG may reallocate access to any unused PFA Funds during the period from January 1,2011 to March
1,2011 as follows: ABAG will provide written notice of the proposed reallocation to the affected
Participating Entities no less than 30 (thirty) calendar days prior to the date that ABAG intends to implement
the reallocation. The affected Participating Entities and ABAG may negotiate a different reallocation and
implement it by a writing executed by the authorized representatives of the affected Participating Entities and
ABAG. If the affected Participating Entities and ABAG cannot agree on a different reallocation, ABAG may
(i) unilaterally implement the reallocation described in the notice on the date set forth therein or (ii) rescind
the notice. Palo Alto agrees that ABAG may unilaterally amend Palo Alto's allocation in accordance with this
subsection (c).
3. Ordering TCDs. ABAG has published a document that lists and describes all available TCDs, which is
labeled Exhibit A-2 and is online for downloading at http://www.bayareatrashtracker.org/content/trash
capture-devices, and may be amended from time to time by ABAG. To order a TCD, Palo Alto must submit
to ABAG a completed Purchase Order signed by representatives of Palo Alto and the vendor of the TeD in
tl1~iQml a!t!!(:Qed to this Agreement as Exhibit A-3. Palo Alto is responsible for negotiating and reaching
agreement with the vendor on the additional information required by the Purchase Order, and such other
additional terms and conditions as Palo Alto and the vendor deem necessary, including without limitation,
location of installation, date of delivery or installation, per unit cost, design, engineering and other technical
collaboration or assistance. Palo Alto is responsible for coordinating its ordering of TCDs in a manner that
entitles it, alone or in conjunction with others, to discounted prices for TCDs. The Purchase Order is not
effective until approved by ABAG. ABAG may unilaterally amend Exhibit A-2 from time to time to reflect
changes in TCD availability or specifications or vendor information.
4. Project Sites. Palo Alto must locate all TCDs acquired under this agreement at locations (Project Sites) that
meet the requirements set forth in Exhibits D-l through D-4, inclusive (Certifications).
5. Accepting TCDs. Upon Palo Alto's acceptance of a TCD, ABAG will pay the vendor of the TCD. Palo Alto
may accept a TCD only by submitting to ABAG a completed Notice of Acceptance executed by Palo Alto
and the vendor. Payment will be made after ABAG approves the Notice of Acceptance, attached to this
Agreement as Exhibit A-4. The Notice of Acceptance Form is available online for downloading at
http://www.bayareatrashtracker.orglcontentlcontract-resources and may be amended from time to time by
ABAG.
6. Deadline for TCD Installation. ABAG will not approve any Notices of Acceptance submitted for any TeD
installed after November 1, 2012. Palo Alto acknowledges and accepts the risks described in section 9 that
may result from Palo Alto's failure to comply with the installation deadline.
7. Vendor Contracts. Palo Alto's right to order and acquire a TCD is based on its status as a third party
beneficiary of ABAG's contract with the vendor of the TCD. The current version of ABAG's contract with
each vendot is online at http://www.bayareatrashtracker.org/contentitrash-capture-devices
8. Transfer of Rights to TCDs. Immediately upon ABAG's approval ofthe Notice of Acceptance and payment
to the vendor for a TCD, all rights to said TCD, including but not limited to title, warranties, and protection
from patent infringement claims, are transferred to Palo Alto.
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9. Fabrication and Installation Risk. If for any reason, Palo Alto and the vendor ofthe TCD do not submit a
Notice of Acceptance, or ABAG disapproves the Notice of Acceptance for a TCD, agrees that if there is any
liability to the vendor for amounts owed for the TCD or for any damages, Palo Alto, and not ABAG, will be
solely liable to the vendor for any amounts owed or damages caused thereby.
10. Operation and Maintenance ofTCD. Palo Alto agrees to provide for operation and maintenance of each TCD
acquired under this agreement throughout the useful life of the TCD (not to exceed 25 years).
11. Monitoring. See Exhibit A, Scope of Work, for monitoring requirements.
12. Hold Harmless. Contractor shall hold harmless, defend and indemnify ABAG, its directors, officers, agents
and employees from and against any and all liability, claims, losses, or damages arising from all acts or
omissions to act of Contractor or its officers, agents, employees or subcontractors in rendering services under
this agreement, excepting liability, claims, losses or damages based solely on ABAG's acts or omissions.
13. Entire Agreement. This agreement and its attachment are entire as to the activities covered by it. This
agreement supersedes any and all other agreements either oral or in writing between ABAG and Palo Alto
with respect to the subject matter hereof. ABAG and Palo Alto acknowledge that no representations,
inducements, promises or agreements, orally or otherwise, have been made to any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other contracts, statement, or promise not
contained in this agreement shall be valid or binding.
14. Conflict ofInterest. Palo Alto covenants that presently there is no interest, and none shall be acquired, direct
or indirect, which conflicts in any manner or degree with its performance as required under this agreement.
Palo Alto further covenants that in the performance of this agreement, no person having any interest shall be
employed by it.
15. Notices. Any notices, demands, or elections required or permitted to be given or made hereunder shall be in
writing, shall be personally delivered or mailed by certified or registered mail, return receipt requested,
addressed to the Authorized Representatives of the respective parties as follows:
ABAG
San Francisco Estuary Partnership
1515 Clay Street, Suite 1400
Oakland, CA 94612
Attn.: Janet Cox, Contract Manager
Phone: (510) 622-2334
Email: iwcox@waterboards.ca.gov
City
City of Palo Alto
250 Hamilton Ave 6th Floor
Palo Alto, CA 94301
Attention: Joe Teresi
Phone: 650.329.2129
Email: joe.teresi@cityofPaloalto.com
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16. Binding on Heirs. This agreement shall be binding upon the heirs, successors, assigns, or transferees, of
ABAG or Palo Alto, as the case may be. This provision shall not be construed as an authorization to assign,
transfer, hypothecate or pledge this agreement other than as provided above.
17. Other Contract Provisions. This Contract shall be subject to the Standard Contract Provisions and Federal
ARRA and State Water Resources Control Board Contract Provisions as set forth in Exhibits Band h.
respectively, which are incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below.
Dated: ------------------
City:
By:
(Print name and title)
(Tax ID #)
Dated: ~( l-f-=-<L/3--t-o l_1 v __
ASSOCIATION OF BAY AREA GOVERNMENTS:
Ezra Rapport
Executive Director
Approved as to legal form and content:
Kenneth K. Moy, Legal Counsel
Association of Bay Area Governments
Approved as to legal form and content:
Print Name & Title
City of Palo Alto
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EXHIBIT A
SCOPE OF WORK
The Bay Area-Wide Trash Capture Demonstration Project is funded by the State Water Resources Control Board
Clean Water State Revolving Fund (CWSRF) with funds from the American Reinvestment and Recovery Act
(ARRA). The San Francisco Estuary Partnership (SFEP), a project ofthe Association of Bay Area Governments
(ABAG) will administer the project, which will retrofit and/or improve storm drainage infrastructure in order to
address trash pollution in San Francisco Bay and local creeks.
The project will demonstrate to municipalities and the public that trash can be managed, and that reductions in the
volume oftrash enhance the Estuary and its water quality. Municipal staff will gain experience with, and share
information about, different types of trash capture devices. The project will facilitate early compliance with the
San Francisco Bay Regional Water Quality Control Board's Municipal Regional Stormwater National Pollutant
Discharge Elimination System Permit affecting Phase I communities, and anticipated requirements for operators
of small municipal separate storm sewer systems (Phase II).
SFEP/ABAG has developed an initial distribution of project resources, posted at
http://www .bayareatrashtracker.org/content/contract-resoufces, which allocates a proportion of available funds to
all project area municipalities (Exhibit A-1) based on population and regulatory requirement to capture trash. This
allocation will be revised to reflect the municipalities that choose to contract with ABAG and join the project.
SFEP/ABAG has solicited proposals from, and is contracting with vendors to provide trash capture devices for
installation in municipal storm drain systems throughout the project area, in a range of scales and designs
appropriate to different locations and conditions.
All construction: must be complete, and all devices installed, by November 1, 2012.
The project completion date (end of project term) is December 1,2013.
Participating entities that opt to join the project will undertake the following tasks:
1. Contract with the Association of Bay Area Governments to participate in the Bay Area-wide Trash
Capture Demonstration Project. This contract includes provisions required by both ARRA and the
CWSRF.
2. Review the list of vendors and trash capture devices included in the project (Exhibit A-2); identify high
trash-generating locations for installation of devices; and work with vendors' representatives to select and
size devices appropriate to those sites. Each individual installation must either be covered by the Project's
categorical exemption from requirements ofthe California Environmental Quality Act (CEQA Guidelines
Section 1 5302(c), Replacement or Reconstruction), or the municipality must submit to ABAG complete
CEQA documentation that was been duly filed with the Governor's Office of Planning and Research
before September 15,2009.
3. Complete a purchase order form (example in Exhibit A-3) fOf each vendor of selected devices, specifying
devices and locations; sign the form along with the vendor's representative; and submit to the SFEP
project manager. Submit multiple purchase orders if necessary.
4: Either supervise installation of each device by the vendor; install the device with municipal staff labor; or
contract separately with an appropriate installer (using municipal funds unless otherwise arranged with
ABAG legal staft) to place the device in accordance with specifications.
~ When the device is properly installed and functioning, complete a Notice of Acceptance (Exhibit A-4)
and submit the ABAG.-When a representative of the city or county signs the Notice of Acceptance,
ownership and responsibility for upkeep and maintenance of the device pass from ABAG to the
municipality .
6. Display a project placard, to be provided by ABAG, in city/county offices or other appropriate public
space
7. Maintenance: Municipal staff will perform or supervise appropriate regular maintenance of each device
according to manufacturer's instructions or best practices. Each device will be maintained so as to
maximize effectiveness and minimize both flooding and flow of trash through the storm drainage system;
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and to filter the one-hour/one-year storm at all times. The municipality will maintain the device in good
working order for the useful life of the TCD (not to exceed 25 years), unless otherwise authorized by
ABAG and the State Water Resources Control Board Division of Financial Assistance.
8. Monitoring and reporting: Municipal staffwill use the online reporting website operated by ABAG/SFEP
to record the following:
a. Installation/location
i. Device inventory number, name, and type
ii. Size/capacity of device
iii. Installation location
iv. Catchbasin dimensions, if applicable
v. Outflow pipe diameter
vi. Best estimate of catchment area (required for high flow capacity devices, optional for
small devices)
vii. Major land uses in catchment, estimated percentages (high flow capacity devices); or
dominant land use adjacent to catchbasin (small TCDs)
b. Maintenance reporting for each maintenance event during the project term:
i. Date of maintenance
ii. Staffing, time, and equipment required to perform maintenance
iii. Estimated percentage full at time of maintenance
iv. Optional:
1. Condition of catchbasin and device
2. Characteristics of trash removed from device (visual estimate)
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Alameda County
Alameda
Albany
Berkeley
Dublin
Emeryville
Fremont
Hayward
Livermore
Newark
Oakland
Piedmont
Pleasanton
San Leandro
Union City
County of Alameda
Contra Costa County
Antioch
Brentwood
Clayton
Concord
Danville
El Cerrito
Hercules
Lafayette
Martinez
Moraga
Oakley
Orinda
Pinole
Pittsburg
Pleasant Hill
Richmond
San Pablo
SanRamon
Walnut Creek
County of Contra Costa
EXHIBIT A-l
LIST OF POTENTIAL PARTICIPANTS
Marin County
Belvedere
Corte Madera
Fairfax
Larkspur
Mill Valley
Novato
Ross
San Anselmo
San Rafael
Sausalito
Tiburon
County of Marin
Napa County
American Canyon
Calistoga
Napa
St Helena
Yountville
County of Napa
San Mateo County
Atherton •
Belmont
Brisbane
Burlingame
Colma
Daly City
East Palo Alto
Foster City
Half Moon Bay
Hillsborough
Menlo Park
Millbrae
Pacifica
Portola Valley
Redwood City
San Bruno
San Carlos
San Mateo
South San Francisco
Woodside
County of San Mateo
Santa Clara County
Campbell
Cupertino
Los Altos
Los Altos Hills
Los Gatos
Milpitas
Monte Sereno
Mountain View
Palo Alto
San Jose
Santa Clara
Saratoga
Sunnyvale
County of Santa Clara
Solano County
Benicia
Fairfield
Suisun City
Vallejo
County of Solano
Sonoma County
Petaluma
Sonoma
County of Sonoma
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EXHIBIT A-2
Bay Area-wide Trash Capture
Demonstration Project
Vendors and devices approved March 18,2010
Small devices with San Francisco Bay Water Board certification for full trash capture
Device ID Vendor Device Name
AS-1 Advanced Solutions Stormtek 8T3
AS-2 Advanced Solutions Stormtek 8T3-G
BMP-1 Best Management Products, Inc. SNOUT Oil-Debris Separator (with Trash
Screen)
BC-1 Bio Clean Environmental Services, Grate Inlet Skimmer Box (square design) Inc.
cBG-2--Bio Glean Environmental Services, High Capacity Round Grate Inlet Skimmer Box Inc. e
BC-3 Bio Clean Environmental Services, Modular Connector Pipe Screen Inc. .
BC-4 Bio Clean Environmental Services, Trash Guard Inc.
ECI-1 Ecology Control Industries Debris Dam (American Stormwater)
G2-1 G2 Construction, Inc. Collector Pipe Screen
G2-1R G2 Construction, Inc. Collector Pipe Screen Removable
GFI-1 Gentile Family Industries WA VY GRATE Trash Catcher (Waterway Solutions)
KS-1 KriStar Enterprises, Inc. Flo Gard Plus Catch Basin Filter Insert,
combination inlet style -C3 (stainless steel)
KS-2 Flo Gard Plus Catch Basin Filter Inserts, flat
KriStar Enterprises, Inc. grated inlet style, rectangular or round -C3
(stainless steel)
KS-3 KriStar Enterprises, Inc. FloGard Catch Basin Outlet Screen Insert
REM-1 Revel Environmental Manufacturing, Triton Bioflex Drop Inlet Trash Guard Inc.
USW-1 United Stormwater, Inc. Connector Pipe Screen
WCS-1 West Coast Storm, Inc. Connector Pipe Screen
XP-1 Xeripave, LLP (pending)
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Devices not certified by the Water Board, but eligible for ordering by municipalities where
they will be used in combination with full capture devices
Device 10 Vendor Device Name
ECI-2 Ecology Control Industries Surfgate (American Stormwater)
G2-2 G2 Construction, Inc. Cam Lock Debris Gate
G2-3 G2 Construction, Inc. FS 10
GFI-2 Gentile Family Industries ARS -automatic retractable screen (Waterway Solutions)
KS-4 KriStar Enterprises, Inc. Trash and Debris Guard
USW-2 United Stormwater, Inc. Clean Screen III
XP-2 Xeripave LLC Intill existing grate
XP-3 Xeripave LLC Storm Grate and Lintel
WCS-2 West Coast Storm, Inc. ARS -automatic retractable screen
High Flow ,Capacity Devices with Water Board certification
--------------
Device 10 Vendor Device Name
BC-5HF Bio Clean Environmental Services, Nutrient Separating Baffle Box Inc.
CCP-1HF Contech Construction Products Continuous Deflective Separator (CDS)
FCT-1HF Fresh Creek Technologies, Inc. Inline Netting Trash Trap
KS-5HF KriStar Enterprises, Inc. CleansAIl
KS-6HF KriStar Enterprises, Inc. Downstream Defender
KS-7HF KriStar Enterprises, Inc. FloGard Dual-Vortex Hydrodynamic Separator
KS-8HF KriStar Enterprises, Inc. . FloGard Perk Filter
KS-9HF KriStar Enterprises, Inc. FloGard Swirl-Flo Screen Separator
KS-10HF KriStar Enterprises, Inc. Nettech Gross Pollutant Trap -In Line
RMC-1HF Roscoe Moss Company Storm Flo Screen
Devices with Water Board certification to be approved on a case-by-case basis, pending
the Water Board's determination that installation qualifies for CEQA Categorical Exemption
15302(c), "Replacement or reconstruction of existing utility systems and/or facilities ... "
Device 10 Vendor Device Name
FCT-2HF Fresh Creek Technologies, Inc. End of Pipe Netting Trash Trap
KS-11HF KriStar Enterprises, Inc. Nettech Gross Pollutant Trap-End of Line
9
EXHIBIT A-3
SAMPLE PURCHASE ORDER FORM
[Do NOT use this paper form. Use the electronic version downloadable from
http://www.bayareatrashtracker.org/content/contract-resources]
USE ONE FORM PER VENDOR. ATTACH ADDITIONAL SHEETS, SHOWING ALL INSTALLATION
LOCATIONS, AS NECESSARY.
THIS PURCHASE ORDER IS NOT FINAL UNTIL APPROVED BY ABAG
P.O. No. (city/county name + 4-digit number)
Date
Municipality Information Vendor information
City/County: Company name:
Attention: Vendor Tax ID:
Address Attention:
Address
,
City Zip City State Zip
Phone Fax Phone Fax
Email Email
Order Details (Use one row for each installation. Add rows as necessary)
Line # Device Description / Model Location* Delivery Install / Price number Date Noninstall
1
2
Tax
Shipping/delivery, if applicable
TOTAL
* Location must be specific (SW corner 6th St. & Main or GPS coordinates). See online form for specification
instructions.
I Special Conditions**:
** Attach additional sheets, showing all special conditions, as necessary.
Approved by ______________________ Date:
(Signature of authorized Representative, Participating Entity)
Name (print) _______________________ Phone
Approved by _______________________ Date: _________ _
(Signature of device vendor representative)
Name (print) _______________________ Phone ________ _
Approved by _______________________ Date:
(ABAG)
OWP# 102147
10
EXHIBIT A-4
SAMPLE NOTICE OF ACCEPTANCE
[Do NOT use this form. Use the electronic version downloadable from
http://www.bayareatrashtracker.org/content/contract-resources]
USE ONE FORM PER VENDOR. ATTACH ADDITIONAL SHEETS, SHOWING ALL INSTALLA TION
LOCATIONS, AS NECESSARY.
Date: _________ _
This form verifies installation of trash control device(s), as required by the State Water Resources Control Board Clean
Water State Revolving Fund Project Finance Agreement with ABAG for the Bay Area-Wide Trash Capture Demonstration
Project, Agreement No. 09-823-550.
To: San Francisco Estuary Partnership
Attn.: Janet Cox
1515 Clay Street, Suite 1400
Oakland, CA 94612
(510) 622-2334
Please be advised that [PARTICIPATING ENTITY NAME] has received the following goods (TCD), pursuant to
Purchase Order # , dated _________ _
--Date ---~Line# Project device (from Description / Model Location Installed p.o.) number
Tax
Shipping/delivery (if applicable)
TOTAL
Price
Authorized representatives of [PARTICIPATING ENTITY NAME] and [VENDOR NAME] have inspected the trash
capture devices (TCD) which have been received and installed in good condition, with no defects and in conformity with
the order.
We accept the TCD(s) noted above and authorize ABAG to pay the vendor the total amount listed above, $XXX.
Approved by ______________________ Date:
(Signature of authorized Representative, Participating Entity)
Name (print) _______________________ Phone ________ _
Approved by _______ ----------------Date: _________ _
(Signature of device vendor representative)
Name (print) ______________________ Phone ________ _
Approval to pay by: ____________________ -Date:
(Project Manager, SFEP)
Comments/Instructions:
• Payment will be based on this NOA. If Vendor is using its own invoicing system, the invoice must be attached to this
NOA for payment.
OWP# 102147
11
EXHIBITB
STANDARD CONTRACT PROVISIONS
1. Definitions:
"Contractor" as used in Exhibit B is Palo Alto.
2. Conflict ofInterest. No employee, officer, or agent of ABAG shall participate in selection, or in the award or
administration of a contract if a conflict of interest, real or apparent, would be involved. Such a conflict
would arise when:
a) The employee, officer or agent;
b) Any member of his or her immediate family;
c) His or her partner; or
d) An organization which employs, or is about to employ, any of the above has a financial or other interest
in the firm selected for award. .
ABAG's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of
monetary value from contractors, potential contractors, or parties to subcontracts.
3. Extensions of Time. The granting of or acceptance of extensions of time to complete performance by
Contractor will not operate as a release to Contractor or otherwise modify the terms and conditions of this
Tontract.-
4. Headings. The descriptive headings used in this Contract are for convenience only and shall not control or
affect the meaning or construction of any of its provisions.
5. Prohibited Interest. Contractor's officers, employees or agents shall neither solicit nor accept gratuities,
favors or anything of monetary value from contractors, potential contractors, or parties to subcontracts.
6. Remedies Cumulative. The remedies conferred by this Contract upon ABAG are not intended to be
exclusive, but are cumulative and in addition to all other remedies provided by law.
7. Severability. Should any part of this Contract be declared unconstitutional, invalid, or beyond the authority of
either party to enter into or carry out, such decision shall not affect the validity of the remainder of this
Contract, which shall continue in full force and effect; provided that, the remainder of this Contract can,
absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties.
8. Insurance Requirements. Contractor shall procure and maintain for the duration of this Contract insurance
against claims for injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder by the Contractor, its agents, representatives, or employees. Contractor
may satisfy all of the requirements of this section by documentation of its membership in a California
government agency self-insurance risk pool with coverage at least as broad as the Insurance Requirements set
out in this Contract.
a. Minimum Scope ofInsurance. Coverage shall be at least as broad as:
1) fnsurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).
2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto).
3) Workers' Compensation insurance as required by the State of California and Employer's Liability
Insurance.
12
4) Errors and Omissions Liability insurance appropriate to the Contractor's profession. Architects' and
engineers' coverage is to be endorsed to include contractual liability. The City is not required to obtain
Errors and Omissions Liability insurance for work and services provided by its own employees or
officials.
b. Minimum Limits of Insurance. Contractor shall maintain limits no less than:
1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage.
If Commercial General Liability Insurance or other form with a general aggregate limit is used, either
the general aggregate limit shall apply separately to this project/location or the general aggregate limit
shall be twice the required occurrence limit.
2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3) Employer's Liability: $1,000,000 per accident for bodily injury or disease.
c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to
and approved by ABAG. At the option of ABAG, either: the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects ABAG, its officers, officials, employees and volunteers;
or the Contractor shall provide a financial guarantee satisfactory to ABAG guaranteeing payment of losses
and related investigations, claim administration and defense expenses. (Including operations, products and
completed operations, as applicable.).
d. Other Insurance Provisions. The Contractor will cause its self-insurance government agency risk pool, to
--proviCle-Clocumentation of the following:
I) ABAG, its officers, officials, employees and volunteers are to be covered as insureds as respects:
liability arising out of work or operations performed by or on behalf of the Contractor; or automobiles
owned, leased, hired or borrowed by the Contractor.
2) For any claims related to this project, the Contractor's insurance coverage shall be primary insurance
as respects ABAG, its officers, officials, employees and volunteers. Any insurance or self-insurance
maintained by ABAG, its officers, officials, employees or volunteers shall be excess of the
Contractor's insurance and shall not contribute with it.
3) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after 30 (thirty) days' prior written notice by certified mail, return
receipt requested, has been given to ABAG.
4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional
insured in any case where an agreement to indemnify the additional insured would be invalid under
Subdivision (b) of Section 2782 of the Civil Code.
e. Acceptability of Insurers. Based on Contractor's representation that its self-insurance agency risk pool is
solvent and funded at prudent levels, ABAG accepts the coverage provided in lieu of commercial
insurance.
f. Verification of Coverage. Contractor shall furnish ABAG with original certificates and amendatory
endorsements effecting coverage required by this clause. All certificates and endorsements are to be
received and approved by ABAG before work commences. ABAG reserves the right to require complete,
certified copies of all required insurance policies, including endorsements affecting the coverage required
by these specifications at any time.
g. Authority to Self-Insure. The requirements of this section may be satisfied by the provisions of equivalent
coverage through a program of self-insurance which is certified in writing with an "Affidavit of Insurance",
or functionally equivalent document.
13
EXHIBITC
AMERICAN RECOVERY & REINVESTMENT ACT (ARRA) and
CLEAN WATER STATE REVOLVING FUND (CWSRF)
CONTRACT PROVISIONS
ARTICLE I: DEFINITIONS
"Contractor" as used in Exhibits C, C-l, C-2, C-3, and C-4 is Palo Alto.
"Project" as used in Exhibits C, C-l, C-2, C-3, and C-4 refers to the fabrication and installation of trash capture
devices under a Purchase Order.
"System" as used in Exhibits C, C-l, C-2, C-3, and C-4 means all nonpoint source control or estuary enhancement
facilities (TCDs), together with all additions, betterments, extensions or improvements to such facilities,
properties, structures, or works or any part thereof hereafter acquired and constructed.
ARTICLE II: REPRESENTATIONS AND WARRANTIES
2.1 General Contractor Commitments.
The Contractor 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 Contractor in its application, accompanying documents, and communications filed in
support of its request for financial assistance.
2.2CompletiOn6f Project.
The Contractor agrees to expeditiously proceed with and complete construction of the Project in substantial
accordance with Exhibit A.
2.3 Project Certification.
ABAG shall prepare a Project Certification that includes information collected by the Contractor in accordance
with the Bay Area-wide Trash Capture Demonstration Project monitoring and reporting plan, a determination of
the effectiveness of the Project in preventing or reducing pollution, and the results of the monitoring program. The
Project Certification shall follow the general format provided by the Bay Area-wide Trash Capture Demonstration
Project.
Failure to submit a Project Certification, an affirmative certification, or a corrective action report that meets the
above requirements and is satisfactory to the Division within 15 (fifteen) months of the Project Completion date
will cause the State Water Board to stop processing any pending or future applications for new financial
assistance, withhold payments on any existing financial assistance, and begin administrative proceedings pursuant
to sections 13267 and 13268 of the Water Code. ,
2.4 [not applicable]
2.5 Notice. The Contractor agrees to promptly notify the ABAG Contract Manager in writing of:
(a) Litigation, circulation of a petition to challenge rates, consideration of bankruptcy, dissolution, or
disincorporation, or any other thing that could negatively affect or jeopardize the Contractor's revenues used for
operations, maintenance, and repairs of the Project during its useful life.
(b) Any substantial change in scope of the Project. The Contractor 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 ABAG and
ABAG has given written approval for such change;
(c) [not applicable]
(d) [not applicable]
(e) Discovery of any potential archeological or historical resource. Should a potential archeological or historical
14
resource be discovered during construction of the Project, the Contractor agrees that all work in the area of the
find will cease until a qualified archeologist has evaluated the situation and made recommendations regarding
preservation of the resource, and the State Water Resources Control Board, Division of Financial Assistance
(Division) has determined what actions should be taken to protect and preserve the resource. The Contractor
agrees to implement appropriate actions as directed by the Division;
(t) Discovery of any unexpected endangered or threatened species, as defined in the federal Endangered Species
,Act. Should a federally protected species be unexpectedly encountered during construction of the Project, the
Contractor agrees to promptly notify the ABAG Contract Manager. This notification is in addition to the
Contractor's obligations under the federal Endangered Species Act;
(g) Any monitoring, demonstration, or other implementation activities such that the State Water Resources
Control Board (State Water Board) and/or Regional Water Quality Control Board (Regional Water Board) staff
may observe and document such activities;
(h) Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the
opportunity for attendance and participation by state and federal representatives with at least ten (10) working
days notice; and,
(i) Completion of Construction of the Project, and actual Project Completion.
2.6 Project Access.
The Contractor agrees to insure that ABAG, the State Water Board, the Governor ofthe State, the United States
Environmental Protection Agency (USEPA), the Office ofInspector General, any member of Congress, the
President of the United States, or any authorized representative of the foregoing, will have suitable access to the
Projectsite at.alLreasonable times during Project construction and thereafter for the life of the Project. The
Contractor acknowledges that the Project records and locations are public records.
2.7 Project Completion; Initiation of Operations.
Upon Completion of Construction of the Project, the Contractor agrees to expeditiously initiate Project
operations. The Contractor agrees to make all reasonable efforts to meet the Project Completion date established
in Exhibit A. Such date shall be binding upon the Contractor unless modified in writing by ABAG upon a
showing of good cause by the Contractor. The Contractor shall deliver any request for extension of the Project
Completion date no less than ninety (90) days prior to the Project Completion date. ABAG will not unreasonably
deny such a timely request, but t~e Division will deny requests received after this time.
2.8 Continuous Use of Project; Lease or Disposal of Project.
The Contractor agrees that, except as provided in the Agreement, it will not abandon, substantially discontinue
use of, lease, or dispose of the Project or any significant part or portion thereof during the useful life of the Project
without prior written approval of the ABAG and the Division. Such approval may be conditioned as determined
to be appropriate by the Division, including a condition requiring repayment of all Project Funds together with
accrued interest and any penalty assessments which may be due.
2.9 Reports.
(a) [not applicable]
(b) As Needed Reports. The Contractor agrees to expeditiously provide, during the term of this Agreement, such
reports, data, and information as may be reasonably required by ABAG or the Division, including but not limited
to material necessary or appropriate fo~ evaluation of the CWSRF Program or to fulfill any reporting requirements
of the federal government.
2.1 0 [not applicable]
2.11 [not applicable]
15
2.12 [not applicable]
2.13 Signage.
The Contractor shall post project posters inside its city hall and by posting notice on its website until
the Completion of Construction date specified in Exhibit A. For both posters and website notices, the
Recipient (ABAG) shall ensure the inclusion of the relevant logos and statements required by Section
2.13 ofthe CWSRF Project Finance Agreement with ABAG for the Bay Area-Wide Trash Capture
Demonstration Project, Agreement No. 09-823-550.
ARTICLE III: [not applicable]
ARTICLE IV: MISCELLANEOUS PROVISIONS
4.1 Timeliness.
TIME IS OF THE ESSENCE IN THIS AGREEMENT
4.2 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 this Agreement is
binding on any of the parties.
4.3 Assignability.
This Agreement is not assignable by the Contractor, either in whole or in part, without the consent of the State
Water Board in the form of a formal written amendment.
4.4 [not applicable]
4.5 Compliance with Law, Regulations, etc.
(a) The Contractor agrees that it will, at all times, comply with and require its contractors and subcontractors to
comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without
limitation ofthe foregoing, the Contractor agrees that, to the extent applicable, the Contractor will:
(1) Comply with the provisions of the Categorical Exemption from California Environmental Quality Act
requirements (15302(c)) associated with the Bay Area-wide Trash Capture Demonstration Project, for
the term of this Agreement;
(2) Comply with the State Water Board's "Policy for Implementing the State Revolving Fund for
Construction of Wastewater Treatment Facilities," as amended from time to time; and
(3) Comply with and require its contractors and subcontractors to comply with the list of federal laws
certified to by the Contractor.
4.6 Conflict of Interest.
The Contractor certifies that it is in compliance with applicable state and/or federal conflict of interest laws.
4.7 Damages for Breach Affecting ARRA Compliance.
(a) In the event that any breach of any of the provisions of this Agreement by the Contractor shall result 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
Water Board or ABAG to reimburse the federal government by reason of any arbitrage profits, the Contractor
shall immediately pay the State Water Board or ABAG, as the case may be, in an amount equal to any damages
paid by or loss incurred by the state due to such breach.
16
(b) In the event that any breach of any of the provisions of this Agreement by the Contractor shall result in the
failure of Project Funds to be used pursuant to the provisions of ARRA, or if such breach shall result in an
obligation on the part of the State Water Board or ABAG to reimburse the federal government, the Contractor
shall immediately pay the State Water Board or ABAG, as the case may be, in an amount equal to any damages
paid by or loss incurred due to such breach.
4.8 Disputes.
(a) Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided
by the Division Deputy Director, or his or her authorized representative. The decision shall be reduced to writing
and a copy thereof furnished to the Contractor and to the State Water Board's Executive Director. The decision of
the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division
decision to the Contractor, the Contractor mails or otherwise furnishes a written appeal ofthe decision to the State
Water Board's Executive Director. The decision of the State Water Board's Executive Director shall be final and
conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or
arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In
connection with any appeal under this clause, the Contractor shall be afforded an opportunity to be heard and to
offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall
continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement.
(b) This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed
to make final the decision of the State Water Board, or any official or representative thereof, on any question of
law.
------
(c) The Contractor shall continue with the responsibilities under this Agreement during any dispute.
4.9 Governing Law.
This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California.
4.10 [not applicable]
4.11 Independent Actor.
The Contractor, and its agents and employees, if any, in the performance of this Agreement, shall act in an
independent capacity and not as officers, employees or agents of the State Water Board or ABAG.
4.12 Non-Discrimination Clause.
(a) During the performance of this Agreement, Contractor and its contractors and subcontractors 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 offamily care
leave.
(b) The Contractor, its contractors, and subcontractors shall ensure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and harassment.
(c) The Contractor, its contractors, and subcontractors shall comply with the provisions of the Fair Employment
and Housing Act (Gov. Code, § 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair
Employment and Housing Commission implementing Government Code Section 12990 (a-f), 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 Contractor, its contractors, and subcontractors shall give written notice of their obligations under this
clause to labor organizations with which they have a collective bargaining or other Agreement.
(e) The Contractor shall include the nondiscrimination and compliance provisions of this clause in all
17
subcontracts to perfonn work under the Agreement.
4.13 No Third Party Rights.
The parties to this Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this
Agreement, or of any duty, covenant, obligation or undertaking established herein.
4.14 Operation and Maintenance; Insurance.
The Contractor agrees to properly staff, operate and maintain all portions of the Project for at least 20 years from
the project completion date (see Exhibit A) years or the design life of the devices in accordance with all
applicable state and federal laws, rules and regulations. The Contractor certifies that it has in place and will
maintain a reserve fund for this purpose. See Exhibit D-l.
The Contractor will procure and maintain or cause to be maintained insurance on the System with responsible
insurers, or as part of a reasonable system of self-insurance, in such amounts and against such risks (including
damage to or destruction of the System) as are usually covered in connection with systems similar to the System.
Such insurance may be maintained by the maintenance of a self-insurance plan so long as any such plan provides
for (i) the establishment by the Contractor of a separate segregated self-insurance fund funded in an amount
detennined (initially and on at least an annual basis) by an independent insurance consultant experienced in the
field of risk management employing accepted actuarial techniques and (ii) the establishment and maintenance of a
claims processing and risk management program.
-----------
In the event of any damage to or destruction of the System caused by the perils covered by such insurance, the net
. proceeds thereof shall be applied to the reconstruction, repair or replacement of the damaged or destroyed portion
of the System. The Contractor shall begin such reconstruction, repair or replacement as expeditiously as possible,
and shall payout 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 System shall be free and clear of all claims and liens.
4.15 Penn its, Subcontracting, Remedies and Debarment.
The Contractor shall procure all pennits 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. Signed copies of any such permits or licenses shall be submitted to the Division before
construction begins.
Any subcontractors, outside associates, or consultants required by the Contractor in connection with the services
covered by this Agreement shall be limited to such individuals 9r finns as were specifically identified and agreed
to during negotiations for this Agreement, or as are specifically authorized by the State Water Board's Project
Representative through ABAG during the performance of this Agreement. Any substitutions in, or additions to,
such subcontractors, associates, or consultants, shall be subject to the prior written approval of the Division.
The Contractor shall not subcontract 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 Contractor shall not subcontract with any individual or organization on USEPA's List of
Violating Facilities. (40 CFR, Part 31.35, Gov. Code, § 4477)
The Contractor certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debannent, declared ineligible, or voluntarily excluded by
any federal department or agency;
(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
18
obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation
offederal 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.
4.16 [not applicable]
4.17 Contractor's Responsibility for Work.
The Contractor shall be responsible for all work and for persons or entities engaged in work performed pursuant
to this Agreement, including, but not limited to, contractors, subcontractors, suppliers, and providers of services.
The Contractor shall be responsible for any and all disputes arising out of its contracts for work on the Project.
Neither the State Water Board nor ABAG will mediate disputes between the Contractor and any other entity
concerning responsibility for performance of work.
4.18 [not applicable]
4.19 Rights in Data.
The Gontractor-agrees that all data, plans, drawings, specifications, reports, computer programs, operating
manuals, notes, and other written or graphic work produced in the performance of this Agreement are subject to
the rights of the State as set forth in this section. The State and ABAG shall have the right to reproduce, publish,
and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others
to do so. If any such work is copyrightable, the Contractor may copyright the same, except that, as to any work
which is copyrighted by the Contractor, the State and ABAG reserve a royalty-free, nonexclusive, and irrevocable
license to reproduce, publish, and use such work, or any part thereof, and to authorize others to do so, and to
receive electronic copies from the Contractor upon request. (40 CFR §§ 31.34, 31.36)
4.20 State and ABAG Reviews and Indemnification.
The parties agree that review or approval of Project plans and specifications by ABAG or the State Water Board
is for administrative purposes only and does not relieve the Contractor of its responsibility to properly operate and
maintain the Project. To the extent permitted by law, the Contractor agrees to indemnify, defend and hold
harmless ABAG and the State Water Board against any loss or liability arising out of any claim or action brought
against ABAG or the State Water Board 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 System or the Project or the conditions, occupancy, use, possession, conduct or
management of, work done in or about, or the planning, design, acquisition, installation or construction, ofthe
System or 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 Contractor 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 Contractor agrees to pay and
discharge any judgment or award entered or made against ABAG or the State Water Board with respect to any
such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section
shall survive the term of this Agreement.
19
4.21 State Water Board and ABAG Action; Costs and Attorney Fees.
The Contractor agrees that any remedy provided in this Agreement is in addition to and not in derogation of any
other legal or equitable remedy available to ABAG or the State Water Board as a result of breach of this
Agreement by the Contractor, whether such breach occurs before or after completion of the Project, and exercise
of any remedy provided by this Agreement by ABAG or the State Water Board shall not preclude ABAG or the
State Water Board from pursuing any legal remedy or right which would otherwise be available. In the event of
litigation between the parties hereto arising from this Agreement, it is agreed that each party shall bear its own
filing costs and attorney fees.
4.22 Termination; Immediate Repayment; Interest.
(a) This Agreement will automatically terminate without written notice ifthe Contractor fails to meet the
time lines in Exhibit A to the PFA and the ARRA special conditions of Exhibit C-2. Under such circumstance, the
Contractor shall immediately pay all Project Funds received under this Agreement for purchase of the trash
capture device, at the highest legal rate of interest.
(b) Additionally, this Agreement may be terminated by written notice at any time prior to project completion by
the Contractor, at the option of the State Water Board through ABAG, upon violation by the Contractor of any
material provision of this Agreement after such violation has been called to the attention of the Contractor and
after failure of the Contractor to bring itself into compliance with the provisions of this Agreement within a
reasonable time as established by the Division through ABAG. In the event of such termination, the Contractor
agrees, upon demand, to immediately pay to the State Water Board through ABAG an amount equal to the
pur(;!1~e pric~_o{!he trash cap!ure device.
4.23 Unenforceable Provision.
In the event that any provision ofthis Agreement is unenforceable or held to be unenforceable, then the parties
agree that all other provisions of this Agreement have force and effect and shall not be affected thereby.
4.24 Useful Life of the Project.
The useful life of the Project, commencing at Project Completion, is at least 20 years or the term of this
Agreement, as set forth in Exhibit A hereto, whichever period is longer.
4.25 Venue.
The State Water Board and the Contractor hereby agree that any action arising out of this Agreement shall be filed
and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States
District Court in and for the Eastern District of California.
4.26 Waiver and Rights of the State Water Board.
Any waiver of rights by ABAG or the State Water Board with respect to a default or other matter arising under
the Agreement at any time shall not be considered a waiver of rights with respect to any other default or matter.
Any rights and remedies of ABAG or the State Water Board provided for in this Agreement are in addition to any
other rights and remedies provided by law.
20
EXHIBIT C-l
SPECIAL ENVIRONMENTAL, FINANCIAL AND OTHER PROGRAM CONDITIONS
• The Contractor shall comply with the Special.Environmental, Financial, and Other Program Conditions listed
in Exhibit D of the CWSRF Project Finance Agreement with ABAG for the Bay Area-wide Trash Capture
Demonstration Project. See Exhibits D-2 and D-3 of this contract.
• Reimbursement of Project expenses will be restricted to TCDs installed at locations where the Contractor has
submitted a statement that explains certifications of access fa land, operation and maintenance, and no
litigation to State Water Board staff. See Exhibit D-4.
21
EXHIBIT C-2
FEDERAL ARRA SPECIAL CONDITIONS
The Contractor shall comply with the Federal ARRA Conditions in the CWSRF Project Finance Agreement with
ABAG for the Bay Area-wide Trash Capture Demonstration Project, Exhibit E posted at
http://www.bayareatrashtracker.orglcontentlcontract-resources ) of with the exception of section 1 (t). Section 1 (t)
shall read: '
(t) Reports. In addition to the reports specified in this Agreement, the Contractor may be asked for quarterly
reports related to the goals of ARRA, including jobs created or saved. The Contractor agrees to provide such
reports, if requested, in an expeditious fashion.
22
EXHIBIT C-3
ARRA SECTION 1511 CERTIFICATION
The Contractor shall comply with the Section 1511 Certification in the CWSRF Project Finance Agreement with
ABAG for the Bay Area-wide Trash Capture Demonstration Project, Exhibit G. The CWSRF Project Finance
Agreement is posted at http://www.bayareatrashtracker.org/content/contract-resources.
23
EXHIBITC-4
DAVIS-BACON ACT COMPLIANCE
The Contractor shall comply with the Davis-Bacon Act requirements listed in Exhibit H (available for viewing
from SFEP by request) of the CWSRF Project Finance Agreement with ABAG for the Bay Area-wide Trash
Capture Demonstration Project.
The Contractor shall comply with and use the Davis-Bacon wage determinations while working under this
contract. The wage determinations can be found at: http://www.wdol.gov/dba.aspx#3.
24
EXHIBITD-l
OPERATION AND MAINTENANCE CERTIFICATION
The undersigned certifies by his or her signature the following:
Palo Alto agrees to continue to provide for operations and maintenance (O&M) throughout the useful life of the
Project. Palo Alto provides for operations and maintenance of the Project through its:
o General Fund, of which the estimated costs of O&M will be __ per cent L %);
or
o Other -______ (Name of fund), of which the estimated costs of O&M will be __ percent
L%)·
This fund is an on-going operation of the City of Palo Alto.
Signature Date
Print Name of Signer Position/Title
25
EXHIBITD-2
PROJECT SITE(S) ACCESS CERTIFICATION
The undersigned certifies by his or her signature the following:
The City of Palo Alto (Contractor) certifies that the State Water Board, the Governor of the State, the United
States Environmental Protection Agency, the Office ofInspector General, any member of Congress, the President
of the United States, or any authorized representative of the foregoing, will have suitable access to all Project sites
at all reasonable times during Project construction and thereafter for the life ofthe Project (not to exceed 25
years). The Contractor acknowledges that the Project records and locations are public records.
Signature Date
Print Name of Signer Position/Title
26
EXHIBITD-3
NO LITIGATION CERTIFICATION
The undersigned certifies by his or her signature the following:
The City of Palo Alto (Contractor) is not currently engaged in any pending, threatened, or actual litigation, claims,
or assessments with regard to any of the Project Site(s) or the fund identified in Exhibit C-2.
Signature Date
Print Name of Signer Position/Title
27
EXHIBIT D-4
TITLE CERTIFICATION
The undersigned certifies by his or her signature the following:
All of the Project Site(s) is/are located on land owned by the City of Palo Alto, or land over which the City of
Palo Alto has an easement for access, operation or maintenance, or is in the public right-of-way.
For any Project Site where the City of Palo Alto has an easement, said easement is valid for the life of the Project
(not to exceed 25 years).
All permits necessary for Project have been obtained or will be obtained at the appropriate time.
City of Palo Alto
Attorney or Legal Counsel
Print Name of Signer
Date
28
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