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2012/11/20 Item 16
~=~, ~~ CITY COUNCIL J~ AGENDA STATEMENT ~`~~ CITY OF CHULAVISfA u/ZO/IZ, Item ITEM TITLE: SUBMITTED BY: REVIEWED BY: RESOLUTION AUTHORIZING SUBMITTAL OF A CALRECYCLE WASTE TIRE ENFORCEMENT GRANT APPLICATION IN PARTNERSHIP WITH THE CITY OF SAN DIEGO-SOLID WASTE LOCAL ENFORCEMENT AGENCY AND AUTHORIZING THE CITY OF SAN DIEGO TO ACT ON BEHALF OF THE CITY OF CHULA VISTA TO EXECUTE ALL NECESSARY APPLICATIONS, CONTRACTS, PAYMENT REQUESTS, AGREEMENTS AND AMENDMENTS FOR THE PURPOSE OF SECURING GRANT FUNDS AND IMPLEMENTING THE PURPOSE OF THE GRANT, THROU JUNE 30, 2017. DIRECTOR OF PUBLIC WORKS ,^, ADMINISTRATIVE SERVICES GER F~ CITY MANAGER ~i T~. T S ASSISTANT CITY MANAGER S 4/STHS VOTE: YES ^ NO SUMMARY In 1989 the California Legislature enacted comprehensive requirements for the storage and disposal of waste tires. The California Integrated Waste Management Board, now CalRecycle, was charged with responsibility for tire pile stabilization and remediation where public health and safety and the environment may be at risk. Consequently, CalRecycle adopted regulations to establish and enforce waste tire storage standards. CalRecycle has delegated the responsibility for the administration of the enforcement compliance and surveillance activities at waste tire facilities to local solid waste enforcement agencies. To ensure a stable source of funding for these activities, CalRecycle provides a non- competitive Waste Tire Enforcement Grant program. The City of San Diego-Solid Waste Local Enforcement Agency (LEA) is the lead agency for this program in San Diego County and Chula Vista, Imperial Beach and National City are partnering with San Diego to apply for these grant funds. ENVIRONMENTAL REVIEW The City of San Diego as Lead Agency has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is a "Project" as defined under Section 15378 of the State CEQA Guidelines. The City of San Diego 16-1 11/20/12, Item :~~ Page 2 of 3 has also determined that if any clean-up effort targeted by the subject funds is clearly defined, then additional environmental review will be conducted in accordance with Section 15004 of the State CEQA Guidelines. The Development Services Director has also reviewed the proposed activity for compliance with CEQA and has determined that, notwithstanding the foregoing, the activity is covered under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment, and where it can be seen with certainty that there is ro possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Therefore, because the proposal consists of a grant funding solicitation without the assurance that these funds will be procured and because the purpose of the grant funds, if obtained, is to provide accountability for monitoring the movement of waste and used fire loads generated and transported within the San Diego region, it can be seen with certainty that that the activity in question will not have a significant effect on the environment. Thus, no environmental review is required. RECOMMENDATION Staff reconnnends that Council adopt the resolution authorizing submittal of the CalRecycle Waste Tire Enforcement Grant Program application in partnership with the City of San Diego- Solid Waste Enforcement Agency. BOARDS/COMMISSION RECOMMENDATION On November 5, 2012, the Resource Conservation Commission approved a recommendation that City Council authorize the submittal of a CalRecycle Waste Tire Enforcement grant application in partnership with the City of San Diego-Local Enforcement Agency as the lead agency; and further authorizing San Diego to execute on behalf of Chula Vista all necessary applications, contracts, payment requests, agreements, and amendments for the purpose of securing the gra~rt funds and implementing the purpose of die grant, tlrrough June 30, 2017. DISCUSSION California is faced with the significant challenge of diverting or safely managiug more than 40.2 milliou reusable or waste tires generated each year. It is estimated that 1.5 million waste tires have been illegally dumped or stockpiled. These stockpiles pose a potential threat to public health, safety acrd the environment. In 1990 the California Legislature enacted comprehensive requirements for the storage and disposal of waste tires. CalRecycle was charged with responsibility for tine pile stabilization and remediation where public health and safety a~~d the enviromment may be at risk. Consequently, CalRecycle adopted regulations to establish and enforce waste fire storage and handling standards. Public Resources Code 42961.5 required CalRecycle to develop a "California Uniform Waste and Used Tire Manifest" system. Its purpose is to provide accountability for monitoring the movement of waste and used fire loads generated and tra~rsported withi^ California and that they have been accounted for and delivered to permitted end use facilities. Discrepancies are actively investigated and if necessary regulations are strictly enforced. The maximum civil penalties for violations of the waste fire handling and manifesting requirements is $25,000 per violation per day as described in Public Resources Code Section 42962, and administrative penalties are $5,000 per violation per day. 16-2 11/20/12, Item ~e Page 3 of 3 CalRecycle has delegated the responsibility for the administration of the enforcement compliance and surveillance activities at the waste fire facilities to local solid waste enforcement agencies. The central objective of facility, site and hauler inspections is to achieve compliance through oversight and education to the greatest extent possible acrd to provide accurate information for entry into a statewide database. Inspections may be performed by CalRecycle -staff or by waste fire enforcement grantees. To ensure a stable source of funding for these activities, CalRecycle provides anon-competitive Waste Tire Enforcement Grant Program. Each year there is approximately six million dollars available for the grant program. Eligible applicants may request up to a total of $300,000. To be eligible for grant money the application must have 50 or more waste fire sites in its jurisdiction and must be one of the following: 1. A Local Enforcement Agency 2. An Envirotunental Health Agency 3. A Code Enforcement Agency The City of San Diego Local Enforcement Agency has been operating a Waste Tire Enforcement program for some time and since the cities of Chula Vista, National City and Imperial Beach do not meet all the eligibility requirements to apply for the funding on their own, the City of San Diego invited the South Bay jurisdictions to partner with San Diego for this round of grant funding. The City of San Diego Local Enforcement Agency staff performs the initial inspections and follow-up inspections for all waste fire facilities and sites and will include the facilities and sites located within the partner jurisdictions. If there were anon-compliance issue Enforcement Staff would notify the City and CalRecycle with enforcement activities pursued at the state level. DECISION MAKER CONFLICT Staff bas reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section ]8704.2(a)(]) is not applicable to this decision. Staff is not independently aware, uor has staff been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT YEAR FISCAL IMPACT There is no current impact to the General Pund as a result of applying for and accepting this grant and implementing the work; no matching funds are required. ONGOING FISCAL IMPACT There is no ongoing impact to the General Fund as a result of applying for and accepting this grant and implementing the work; no matching funds are required. ATTACHMENTS Tire Enforcement Grant Terms and Conditions Prepared by: L~~nn F ance, Environmtental Services Program Manager, Pub/ic Works Departnaenf H:IPUBLIC WORKS- ENGIAGENDAICAS20 7 217 1-20-7212012T1reGrantAgSt-71 !9 12-FlNAL.doc 16-3 EXHIBIT A TERMS AND CONDITIONS Local Government Waste Tire Enforcement Grant Program Fiscal Year 2012/13 The following terms used in this Grant Agreement (Agreement) have the meanings given to them below, unless the context clearly indicates otherwise: • "CalRecycle" means the Department of Resources Recycling and Recovery. • "Executive Director" means the Executive Director of CalRecycle or his or her designee. • "Grant Agreement" and "Agreement" means all documents comprising the agreement between CalRecycle and the Grantee for this Grant. • "Grant Manager" means CalRecycle staff person responsible for monitoring the grant. • "Grantee" means the recipient of funds pursuant to this Agreement. • "Program" means the Local Government Waste Tire Enforcement Grant Program. • "State" means the State of Califomia, including, but not limited to, CalRecycle and/or its designated officer. 1. ACKNOWLEDGEMENTS The Grantee shall acknowledge CalRecycle's support each time projects funded, in whole or in part, by this Agreement are publicized in any medium, including, but not limited to, news media, brochures, or other types of promotional materials. The acknowledgement of CalRecycle's support must incorporate CalRecycle logo. Initials or abbreviations for CalRecycle shall not be used. The Grant Manager may approve deviation from the prescribed language on a case- by-case basis where such deviation is consistent with CalRecycle's Communication Strategy and Outreach Plan. If; subsequent to this Agreement, CalRecycle adopts updated or new logos or language (language), the Grant Manager may require the Grantee to include this language in newly printed or generated materials. 2. ADVERTISINGI PUBLIC The Grantee shall submit copies of all draft public education or advertising EDUCnnoN materials to the Grant Manager for review and approval prior to the Grantee's production of materials. Unless omission of the following copyright designation is pre-approved in writing by the Grant Manager, all public education and advertising materials shall state: "© {yeaz of creation} by the Califomia Department of Resources Recycling and Recovery (CalRecycle). All rights reserved. This publication, or parts thereof, may not be reproduced without permission from CalRecycle." $. AIR OR WATER Under the State laws, the Grantee shall not be: POLLUTION VIOLATION a. In violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; b. Subject to cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or c. Finally determined to be in violation of provisions of federal law relating to air or water pollution. 4. 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 understandine or agreement not incomorated into this Agreement is bindine on revised 10/10/2012 -Competitive T's & C's ~ 6_4. 1 any of the parties. This Agreement may be amended, modified or augmented by mutual consent of the parties, subject to the requirements and restrictions of this paragraph. 5. AMERICANS WITH The Grantee assures the State that it complies with the Americans with DISABILITIES ACT Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. § 12101 et seq.) 6. ASSIGNMENT, a. This Agreement may not be assigned by the Grantee, either in whole or in SUCCESSORS AND part, without CalRecycle's prior written consent. ASSIGNS b. The provisions of this Agreement shall be binding upon and inure to the benefit of CalRecycle, the Grantee, and their respective successors and assigns. 7. AUDIT/RECORDS The Grantee agrees that CalRecycle, the Department of Finance, the Bureau of Access State Audits, or their designated representative(s) shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The Grantee agrees to maintain such records for possible audit for a minimum of three (3) years after final payment date or grant term end date, whichever is later, unless a longer period of records retention is stipulated, or until completion of any action and resolution of all issues which may arise as a result of any litigation, dispute, or audit, whichever is later. The Grantee agrees to allow the designated representative(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 or subcontract related to performance of this Agreement. [You may find it helpful to share the Terms and Conditions and Procedures and Requirements with your finance department, contractors and subcontractors. Examples of audit documentation include, but are not limited to: expenditure ledger, payroll register entries and time sheets, personnel expenditure summary form, travel expense log, paid warrants, contracts, change orders, invoices, and/or cancelled checks.) 8. AUTHORIZED The Grantee shall continuously maintain a representative vested with signature REPRESENTATIVE authority authorized to work with CalRecycle on all grant-related issues. The Grantee shall, at all times, keep the Grant Manager informed as to the identity and contact information of the authorized representative. 9. AVAILABILITY OF FUNDS CalRecycle's obligations under this Agreement are contingent upon and subject to the availability of funds appropriated for this grant. 1 O. BANKRUPTCYI If the Grantee files for protection under Chapter 9 of the U. S. Bankruptcy Code DECLARATION OF or declazes a fiscal emergency at any time during the Grant Performance Period, FISCAL EMERGENCY the Grantee shall notify CalRecycle within 15 days of such filing or declaration, NOTIFICATION pursuant to the procedures set forth in the section entitled "Communications" herein. 11. CHILD SUPPORT For any agreement in excess of $100,000, the Grantee acknowledges that: COMPLIANCE AcT a. The Grantee recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and revised l0/10/2012 -Competitive T's 6 C's ~ _ 6 _ 5 b. The Grantee, to the best of its knowledge, is fully complying with the earnings assignment orders of all employees, and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 12. COMMUNICATIONS All communications from the Grantee to CalRecycle shall be directed to the Grant Manager. All notices, including reports and payment requests, required by this Agreement shall be given in writing by E-mail, letter, or FAX to the Grant Manager as identified in Exhibit B-Procedures and Requirements. If an original document is reyuired, prepaid mail or personal delivery to the Grant Manager is required following the E-mail or FAX. 13. COMPLIANCE The Grantee shall comply fully with all applicable federal, state, and local laws, ordinances, regulations, and permits. The Grantee shall provide evidence, upon request, that all local, state, and/or federal permits, licenses, registrations, and approvals have been secured for the purposes for which grant funds are to be expended. The Grantee shall maintain compliance with such requirements throughout the grant period. The Grantee shall ensure that the requirements of the California Environmental Quality Act are met for any approvals or other requirements necessary to carry out the terms of this Agreement. Any deviation from the requirements of this section shall result in non-payment of grant funds. With each Payment Request (CalRecycle 87), the Grantee's signature authority shall submit an updated General Checklist of Permits, Licenses, and Filings (CalRecycle 669), if applicable. The General of Permits, Licenses, and Filings (CalRecycle 669) is available at: httn://www.calrec cl~a.gov/Grants/Forms. 14. CONDITION After the Grant Agreement has been executed by both parties, the Grant will be SUBSEQUENT subject to the following condition: The Grantee agrees not to file for protection under Chapter 9 of the U.S Bankruptcy Code or to declare a fiscal emergency any time within the Grant Performance Period. 1 S. CONFLICT OF INTEREST The Grantee needs to be aware of the following provisions regarding current or former state employees. If the Grantee has any questions on the status of any person rendering services or involved with this Agreement, CalRecycle must be contacted immediately for clazification. Current State Employees (Public Contracts Code (PCC) § 10410): a. No officer or employee shall engage in any employment, activity, or enterprise from which the officer or employee receives compensation or has a fmancial interest and which is sponsored or funded by any state agency, unless the employment, activity, or enterprise is required as a condition of regulaz state erttployment. b. No officer or employee shall contract on his or her own behalf as an independent contractor with any state agency to provide goods or services. Former State Employees (PCC § 10411): a. For the two-year period from the date he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-making process relevant to the contract while employed in any capacity by any state agency. b. For the twelve-month period from the date he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in apolicy-making position in the same general subject azea as the proposed contract within the twelve month period prior to his or her leaving state service. If the Grantee violates any provisions of above paragraphs, such action by the revised f0/10/2012-Competitive T's 8 C's ~ 6-6 Grantee shall render this Agreement void. (PCC § 10420). 16. CONTRACTORS/ The Grantee will be entitled to make use of its own staff and such contractors SUBCONTRACTORS and subcontractors as aze mutually acceptable to the Grantee and CalRecycle. Any change in contractors or subcontractors must be mutually acceptable to the parties. Immediately upon termination of any such contract or subcontract, the Grantee shall notify the Grant Manager. Nothing contained in this Agreement or otherwise, shall create any contractual relation between CalRecycle and any contractors or subcontractors of Grantee, and no agreement with contractors or subcontractors shall relieve the Grantee of its responsibilities and obligations hereunder. The Grantee agrees to be as fully responsible to CalRecycle for the acts and omissions of its contractors and subcontractors and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Grantee. The Grantee's obligation to pay its contractors and subcontractors is an independent obligation from CalRecycle's obligation to make payments to the Grantee. As a result, CalRecycle shall have no obligation to pay or to enforce the payment of any moneys to any contractor or subcontractor. 17. COPYRIGHTS AND a. To the extent the Grantee shall have the legal right to do so, Grantee shall TRADEMARKS assign to CalRecycle any and all rights, title, and interests to any copyrightable material or trademazkable material created or developed in whole or in any part as a result of this Agreement, but which originated from previously copyrighted or trademarked material. With respect to all other copyrightable and trademazkable materials, CalRecycle shall retain any and all rights, title and interests to any copyrightable material or trademazkable material created or developed in whole or in any part as a result of this Agreement. These rights, both assigned and retained, shall include the right to register for copyright or trademark of such materials. Grantee shall require that its contractors and subcontractors agree that all such materials shall be the property of CalRecycle. The Grantee is responsible for obtaining any necessary licenses, permissions, releases or authorizations to use text, images or other materials owned, copyrighted or trademazked by third parties and for assigning such licenses, permissions, releases, or authorizations to CalRecycle pursuant to this section. Copies of any licenses, permissions, releases or authorizations obtained pursuant for the use of text, images or other materials owned, copyrighted or trademarked by third parties shall be provided to the'Grant Manager. Under unusual and very limited circumstances, where to do so would not conflict with the rights of CalRecycle and would serve the public interest, upon written request by the Grantee, CalRecycle may give, at the Executive Director's sole discretion, written consent to the Grantee to retain all or any part of the ownership of these rights. b. CalRecycle hereby grants to the Grantee aroyalty-free, nonexclusive, nontransferable world-wide license to reproduce, translate, and distribute copies of the copyrightable materials produced pursuant this Agreement, for nonprofit, non-commercial purposes, and to have or permit others to do so on the. Grantee's behalf. This license is limited to the copyrightable materials produced pursuant to this Agreement and does not extend to any materials capable of being trademazked. The following shall appear on all intellectual property used by Contractor pursuant to this license, solely for the purpose of protecting CalRecycle's intellectual property rights therein: "© {year of creation} by the Department of Resources Recycling and Recovery revised l0/10/2012-Competitive T's.&Cs ~.6-~ 4 (CalRecycle). Used pursuant to license granted by CalRecycle. All rights reserved. This publication, or parts thereof, may not be reproduced without permission." 78. CORPORATION When work under this Agreement is to be performed in California by a QUALIFIED DOING corporation, the corporation shall be in good standing and currently qualified to BUSINESS IN do business in the State. "Doing business" is defined in Revenue and Taxation CALIFORNIA Code Section 23101 as actively engaging in any transaction for the purpose of financial or pecuniary gain or profit. 19. DISCLAIMER OF CalRecycle makes no warranties, express or implied, including without WARRANTY limitation, the implied warranties of merchantability and fitness for a particulaz purpose, regazding the materials, equipment, services or products purchased, used, obtained and/or produced with funds awarded under this Agreement, whether such materials, equipment, services or products aze purchased, used, obtained and/or produced alone or in combination with other materials, equipment, services or products. No CalRecycle employees or agents have any right or authority to make any other representation, warranty or promise with respect to any materials, equipment, services or products, purchased, used, obtained, or produced with grant funds. In no event shall CalRecycle be liable for special, incidental or consequential damages arising from the use, sale or distribution of any materials, equipment, services or products purchased or produced with grant funds awarded under this Agreement. 20. DISCRETIONARY The Executive Director shall have the right to terminate this Agreement at his or TERMINATION her sole discretion at any time upon thirty (30) days written notice to the Grantee. Within forty-five (45) days of receipt of written notice, Grantee is required to: a. Submit a final written report describing all work performed by the Grantee; b. Submit an accounting of all grant funds expended up to and including the date of termination; and, c. Reimburse CalRecycle for any unspent funds. 21. DISPUTES Unless otherwise instructed by the Grant Manager, the Grantee shall continue with its responsibilities under this Agreement during any dispute. 22. DRUG-FREE The person signing this Agreement on behalf of the Grantee certifies under WORKPLACE penalty of perjury under the laws of California, that the Grantee will comply with CERTIFICATION the requirements of the Drug-Free Workplace Act of 1990 (GC § 8350 et seq.) and will provide adrug-free workplace by taking the following actions: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions that will be taken against employees for violations. b. Establish adrug-free awareness program to inform employees about all of the following: (1) the dangers of drug abuse in the workplace, (2) the Grantee's policy of maintaining a drug-free workplace, (3) any available counseling, rehabilitation, and employee assistance programs, and (4) penalties that may be imposed upon employees for drug abuse violations. c. Require that each employee who works on the grant: (1) receive a copy of the drug-free policy statement of the Grantee, and (2) agrees to abide by the terms of such statement as a condition of employment on the grant. 23. EFFECTIVENESS OF This Agreement is of no force or effect until signed by both parties.. AGREEMENT revised 10/10/2012-Competitive T's & C's ~ 6_8 -5 24. ENTIRE AGREEMENT This Agreement supersedes all prior agreements, oral or written, made with respect to the subject hereof and, together with all attachments hereto, contains the entire Agreement of the parties. 25. ENVIRONMENTAL In the performance of this Agreement, the Grantee shall conduct its programs, JUSTICE policies, and activities that substantially affect human health or the environment in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority populations and low-income populations of the State. 26. EXPATRIATE The person signing this Agreement on behalf of the Grantee certifies under CORPORATIONS penalty of perjury under the laws of California, that the Grantee is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of Public Contract Code Section 10286 and 10286.1, and is eligible to contract with the State of Califomia. 27. FAILURE TO PERFORM CalRecycle will benefit from the Grantee's full compliance with the terms of this AS REQUIRED BY THIS Agreement only by the Grantee's: AGREEMENT a. Investigation and/or application of technologies, processes, and devices which support reduction, reuse, and/or recycling of wastes; or b. Cleanup of the environment; or c. Enforcement of solid waste statutes and regulations, as applicable. Therefore, the Grantee shall be in compliance with this Agreement only if the work it performs results in: a. Application of information, a process, usable data or a product which can be used to aid in reduction, reuse, and/or recycling of waste; or b. The cleanup of the environment; or c. The enforcement of solid waste statutes and regulations, as applicable. If the Grant Manager determines that the Grantee has not complied with the Grant Agreement, the Grantee may forfeit the right to reimbursement any grant funds not already paid by CalRecycle, including, but not limited to, the ten percent (10%) withhold. 2H. FORCE MAJEURE Neither CalRecycle nor the Grantee, its contractors, vendors, or subcontractors, if any, shall be responsible hereunder for any delay, default, or nonperformance of this Agreement, to the extent that such delay, default, or nonperformance is caused by an act of God, weather, accident, labor strike, fire, explosion, riot, waz, rebellion, sabotage, flood, or other contingencies unforeseen by CalRecycle or the Grantee, its contractors, vendors, or subcontractors, and beyond the reasonable control of such party. 29. FORFEIT OF GRANT If grant funds aze not expended, or have not been expended, in accordance with FUNDS/REPAYMENT OF this Agreement, or if real or personal property acquired with grant funds is not FUNDS IMPROPERLY being used, or has not been used, for grant purposes in accordance with this EXPENDED Agreement, the Executive Director, at his or her sole discretion, may take appropriate action under this Agreement, at law or in equity, including requiring the Grantee to forfeit the unexpended portion of the grant funds, including, but not limited to, the ten percent (10%) withhold, and/or to repay to CalRecycle any funds improperly expended. 30. GENERALLY ACCEPTED The Grantee is required to use Generally Accepted Accounting Principles in AccouNnNG documenting all grant expenditures. PRINCIPLES revised 10/10/2012 -Competitive T's & C's ~ 6 _ 9 6 31. GRANT MANAGER'S The Grant Manager does not have the authority to approve any deviation from or AUTHORITY revision to the Terms and Conditions (Exhibit A) or the Procedures and Requirements (Exhibit B), unless such authority is expressly stated in the Procedures and Requirements (Exhibit B). 32. GRANTEE The Grantee is ultimately responsible and accountable for the manner in which ACCOUNTABILITY the grant funds are utilized and accounted for and the way the grant is administered, even if the Grantee has contracted with another organization, public or private, toadminister or operate its grant program. In the event an audit should determine that grant funds are owed to CalRecycle, the Grantee is responsible for repayment of the funds to CalRecycle. 33. GRANTEE'S The Grantee agrees to indemnify, defend and save harmless the State and INDEMNIFICATION AND CalRecycle, and their officers, agents and employees from any and all claims and DEFENSE OF THE losses accruing or resulting to any and all contractors, subcontractors, suppliers, STATE laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by the Grantee as a result of the performance of this Agreement. 34. GRANTEE'S NAME A written amendment is required to change the Grantee's name as listed on this CHANGE Agreement. Upon receipt of legal documentation of the name change, CalRecycle will process the amendment. Payment of Payment Requests presented with a new name cannot be paid prior to approval of the amendment. 35. IN CASE OF In the event of an emergency, or where there is an imminent threat to public health EMERGENCY and safety or the environment, the Grantee may choose, at its own risk, to incur grant-eligible expenses not previously included in the approved Budget, subject to subsequent approval by the Grant Manager of both the Budget change and the need to implement the Budget change on an emergency basis. The Grantee shall notify the Grant Manager of the emergency and the Budget change at the eazliest possible opportunity. CalRecycle reserves the right to accept or reject the Grantee's determination that the circumstances constituted an emergency or a threat to public health and safety or the environment. If the Grant Manager determines that the circumstances did not constitute an emergency or a threat to public health or safety, the Budget change will be disallowed. 36. NATIONAL The person signing this Agreement on behalf of the Grantee certifies under LABORRELATIONS penalty of perjury that no more than one final unappealable finding of contempt BOARD CERTIFICATION of court by a federal court has been issued against the Grantee within the immediately preceding two-year period because of the Grantee's failure to comply with an order of a federal court which orders the Grantee to comply with an order of the National Labor Relations Boazd. (Not applicable to public entities.) 37. NO AGENCY The Grantee and the agents and employees of Grantee, in the performance of this RELATIONSHIP Agreement, shall act in an independent capacity and not as officers or employees eREATeD/ or agents of CalRecycle. INDEPENDENT CAPACITY 38. No WAIVER of RIGHTS CalRecycle shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by CalRecycle. No delay or omission on the part of CalRecycle in exercising any rights shall operate as a waiver of such right or any other right. A waiver by CalRecycle of a provision of this Agreement shall not prejudice or constitute a waiver of CalRecycle's right revised 10/10/2012 -Competitive T's & C's ~ 6 - ~ 0 7 otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by CalRecycle, nor any course of dealing between CalRecycle and Grantee, shall constitute a waiver of any of CalRecycle's rights or of any of Grantee's obligations as to any future transactions. Whenever the consent of CalRecycle is required under this Agreement, the granting of such consent by CalRecycle in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of CalRecycle. 39. NoN-oiscRimiNAnoN a. During the performance of this Agreement, Grantee and its contractors shall cu,usE not unlawfully discriminate, harass, or allow hazassment against any employee or applicant for employment on the bases enumerated in Government Code §§ 12900 et seq. b. The person signing this Agreement on behalf of the Grantee certifies under penalty of perjury under the laws of California that the Grantee has, unless exempted, complied with the nondiscrimination program requirements (Government Code § 12990(a-f)) and Califomia Code of Regulations, Title 2, Section 8103). (Not applicable to public entities.) 4O. ORDER OF The performance of this grant shall be conducted in accordance with the Terms PRECEDENCE and Conditions, Procedures and Requirements/Project Summary, Work Plan/Implementation Schedule, and Budget of this Agreement, or other combination of Exhibits specified on the Grant Agreement Coversheet attached hereto (collectively referred to as "Terms"). CalRecycle's Grant Application and Grant Application Guidelines and Instructions (collectively referred to as "Grant Application Package") and the Grantee's CalRecycle-approved Application (Grantee's Application) aze hereby incorporated herein by this reference. In the event of conflict or inconsistency between the articles, exhibits, attachments, specifications or provisions that constitute this Agreement, the following order of precedence shall apply: a. Grant Agreement Coversheet and any Amendments thereto b. Terms and Conditions c. Procedures and Requirements/Project Summary d. Grant Application Package e. Work Plan/Implementation Schedule and Budget, if applicable E Grantee's Application All other attachments hereto, including any that are incorporated by reference. 41. OWNERSHIP OF The State shall have separate and independent ownership of all drawings, design DRAWINGS, PLANS, plans, specifications, notebooks, tracings, photographs, negatives, reports, AND sPECIFICATIONS findings, recommendations, data, software, and memoranda of every description or any part thereof, paid for in whole or in any part with grant funds. Copies thereof shall be delivered to CalRecycle upon request. Grantee agrees, and shall require that its contractors, subcontractors, and vendors agree, that the State shall have the full right to use said copies in any manner when and where it may determine without any claim to additional compensation. 42. PAVmENT a. The approved Budget, if applicable, is attached hereto and incorporated herein by this reference and states the maximum amount of allowable costs for each of the tasks identified in the Work Plan, if applicable, which is attached hereto and incorporated herein by this reference. CalRecycle shall revised 10/10/2012 -Competitive T's & Cs ~ 6 - reimbwse the Grantee for only the work and tasks specified in the Work Plan or the Grant Application at only those costs specified in the Budget and incurred in the term of the Agreement. b. The Grantee shall carry out the work described on the Work Plan or in the Grant Application in accordance with the approved Budget, and shall obtain the Grant Manager's written approval of any changes or modifications to the Work Plan, approved project as described in the Grant Application or the approved Budget prior to performing the changed work or incurring the changed cost If the Grantee fails to obtain such prior written approval, the Executive Director, at his or her sole discretion, may refuse to provide funds to pay for such work or costs. c. The Grantee shall request reimbursement in accordance with the procedwes described in the Procedwes and Requirements. d. Ten percent (10%) will be withheld from each Payment Request and paid at the end of the grant term, when all reports and conditions stipulated in this Agreement have been satisfactorily completed. Failure by the Grantee to satisfactorily complete all reports and conditions stipulated in this Agreement may result in forfeiture of any such funds withheld pursuant to CalRecycle's ten percent (10%) retention policy. e. Lodgings, Meals and Incidentals: Grantee's Per Diem eligible costs aze limited to the amounts authorized in the California State Administrafrve Manual (contact yow Grant Manager for more information). f Payment will be made only to the Grantee. g. Reimbursable expenses shall not be incurred unless and until the Grantee receives a Notice to Proceed as described in Exhibit B -Procedures and Requirements. 43. PERSONAL The Grantee consents to personal jurisdiction in the State of California for all JURISDICTION proceedings concerning the validity and operation of this Agreement and the performance of the obligations imposed upon the parties. Native American Tribal Grantees expressly waive tribal sovereign immunity as a defense to any and all proceedings concerning the validity and operation of this Agreement and the performance of the obligations imposed upon the parties. 44. PERSONNEL COSTS If there aze eligible costs pursuant to Exhibit B, Procedures and Requirements, any personnel expenditures to be reimbursed with grant funds must be computed based on actual time spent on grant-related activities and on the actual salary or equivalent howly wage the employee is paid for his or her regular job duties, including a proportionate share of any benefits to which the employee is entitled, unless otherwise specified in the Procedures and Requirements (Exhibit B). 45. REAL AND PERSONAL a. All real and personal property, including equipment and supplies, acquired PROPERTY ACQUIRED with grant funds shall be used by the Grantee only for the purposes for which WITH GRANT FUNDS CalRecycle approved their acquisition for so long as such property is needed for such purposes, regazdless of whether the Grantee continues to receive grant funds from CalRecycle for such purposes. In no event shall the length of time dwing which such property, including equipment and supplies, acquired with grant funds, is used for the purpose for which CalRecycle approved its acquisition be less than five (5) years after the end of the grant term, during which time the property, including equipment and supplies, must remain in the State of California. b. Subject to the obligations and conditions set forth in this section, title to all real and personal property acquired with grant funds, including all equipment revised 10/10/2012- Competitive T's & C's ~ 6-~ 2 9 and supplies, shall vest upon acquisition in the Grantee. The Grantee may be required to execute all documents required to provide CalRecycle with a security interest in any real or personal property, including equipment and supplies, and it shall be a condition of receiving this grant that CalRecycle shall be in fast priority position with respect to the security interest on any such property acquued with the grant funds, unless pre-approved in writing by the Grant Manager that CalRecycle will accept a lower priority position with respect to the security interest on the property. Grantee shall inform any lender(s) from whom it is acquiring additional funding to complete the propertypurchase of this grant condition. o, The Grantee may not transfer Title to any real or personal property, including equipment and supplies, acquired with grant funds to any other entity without the express authorization of CalRecycle. d. CalRecycle will not reimburse the Grantee for the acquisition of equipment that was previously purchased with CalRecycle grant funds, unless the acquisition of such equipment with grant funds is pre-approved in writing by the Grant Manages In the event of a question concerning the eligibility of equipment for grant funding, the burden will be on the Grantee to establish the pedigree of the equipment. 46. RECYCLED-CONTENT All documents submitted by the Grantee must be printed double-sided on PAPER recycled-content paper containing one hundred percent (100%) post-consumer (PC) fiber. Specific pages containing full color photographs or other ink- intensive graphics may be printed on photogaphic paper. 47. REDUCnoN of wnsrE In the performance of this Agreement, grantee shall take all reasonable steps to ensure that materials purchased or utilized in the course of the project are not wasted. Steps should include, but not be limited to: the use of used, reusable, or recyclable products; discretion in the amount of materials used; alternatives to disposal of materials consumed; and the practice of other waste reduction measures where feasible and appropriate. 48. REDUCTION OF WASTE Unless otherwise provided for in this Agreement, in the performance of this TIRES Agreement, for all purchases made with grant funds, including, but not limited to equipment and tire-derived feedstock, the Grantee shall purchase and/or process only California waste tires and California waste tire-derived products. As a condition of final payment under this Agreement, the Grantee must provide documentation substantiating the source of the fire materials used during the performance of this Agreement to the Grant Manager. 49. REMEDIES Unless otherwise expressly provided herein, the rights and remedies hereunder are in addition to, and not in limitation of, other rights and remedies under this Agreement, at law or in equity, and exercise of one right or remedy shall not be deemed a waiver of any other right or remedy. 50. sevERAeiuTY If any provisions of this Agreement aze found to be unlawful or unenforceable, such provisions will be voided and severed from this Agreement without affecting any other provision of this Ageement. To the full extent, however, that the provisions of such applicable law may be waived, they aze hereby waived to the end that this Agreement be deemed to be a valid and binding agreement enforceable in accordance with its terms. revised l0/10/2012-Competitive T's&C's- ~6-15 t0 51. SITE ACCESS The Grantee shall allow the State to inspect sites at which grant funds are expended and related work being performed at any time during the performance of the work and for ninety (90) days after completion of the work, or until all issues related to the grant project have been resolved. 52. STOP WORK NOTICE Immediately upon receipt of a written notice from the Grant Manager to stop work, the Grantee shall cease all work under this Agreement. 53. TERMINATION FOR CalRecycle may terminate this Agreement and be relieved of any payments cause should the Grantee fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination, CalRecycle may proceed. with the work in any manner deemed proper by CalRecycle. All costs to CalRecycle shall be deducted from any sum due the Grantee under this Agreement. Termination pursuant to this section may result in forfeiture by the Grantee of any funds retained pursuant to CalRecycle's ten percent (] 0%) retention policy. 54. TIME IS OF THE Time is of the essence to this Agreement. ESSENCE 5$. TOLLING OF STATUTE The Statute Of limitations for bringing any actlOn, adm1Il15tratlve Or Clvll, t0 OF LIMITATIONS enfOrCe the terms Of th15 Agreement Or t0 reCOVer any amOUntS determined t0 be owing to CalRecycle as the result of any audit of the grant covered by this Agreement shall be tolled during the period of any audit resolution, including any appeals by the Grantee to the Executive Director and/or the Boazd. 56. UNION ORGANIZING By signing this Agreement, the Grantee hereby acknowledges the applicability of Government Code §§ 16645, 16645.2, 16645.8, 16646, 16647, and 16648 to this Agreement and hereby certifies that: a. No grant funds disbursed by this grant will be used to assist, promote, or deter union organizing by employees performing work under this Agreement. b. If the Grantee makes expenditures to assist, promote, or deter union organizing, the Grantee will maintain records sufficient to show that no state funds were used for those expenditures, and that Grantee shall provide those records to the Attorney General upon request. 57. VENUE/ CHOICE OF a. All proceedings concerning the validity and operation of this Agreement and LAW the performance of the obligations imposed upon the parties hereunder shall be held in Sacramento County, California. The parties hereby waive any right to any other venue. The place where the Agreement is entered into and place where the obligation is incurred is Sacramento County, California. b. The laws of the State of California shall govern all proceedings concerning the validity and operation of this Agreement and the performance of the obligations imposed upon the parties hereunder. 58. WAIVER OF CLAIMS The Grantee agrees to waive all claims and recourse against the State, its AND RECOURSE officials, officers, agents, employees, and servants, including, but not limited to, AGAINST THE STATE the right to contribution for loss or damage to persons or property azising out of, resulting from, or in any way connected with or incident to this Agreement. This waiver extends to any loss incurred attributable to any activity undertaken or omitted pursuant to this Agreement or any product, structure, or condition created pursuant to, or as a result of, this Agreement. 59. WORK PRODUCTS The Grantee must provide CalRecycle with copies of all final products identified in the WorKPlan. revised taitorzot2-Competitive rs & as 1 6-14 i t 60. WORKERS' The Grantee is aware of Labor Code section 3700, which requires every COMPENSATION/ employer to be insured againsfliability for Worker's Compensation or to LABOR CODE undertake self-insurance in accordance with the Labor Code, and the Grantee affirms to comply with such provisions before commencing the performance of the work of this Agreement. revised 10/102012-Competitive Ts & Cs 1 6-15 ~z RESOLUTION NO 2012- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE SUBMITTAL OF A CALRECYCLE WASTE TIRE ENFORCEMENT GRANT APPLICATION IN PARTNERSHIP WITH THE CITY OF SAN DIEGO-SOLID WASTE LOCAL ENFORCEMENT AGENCY AND AUTHORIZING THE CITY OF SAN DIEGO TO ACT ON BEHALF OF THE CITY OF CHULA VISTA TO EXECUTE ALL NECESSARY APPLICATIONS, CONTRACTS, PAYMENT REQUESTS, AGREEMENTS AND AMENDMENTS FOR THE PURPOSE OF SECURING GRANT FUNDS AND TO IMPLEMENT AND CARRY OUT THE PURPOSE SPECIFIED IN THE GRANT THROUGH JUNE, 30, 2017 WHEREAS, Public Resources Code sections 40000 et seg. authorize the Department of Resources, Recycling and Recovery (CalRecycle) to administer various Grant Programs (Grants) in furtherance of the state of California's (State) efforts to reduce, recycle and reuse solid waste generated in the State, thereby preserving landfill capacity and protecting public health and safety and the environment; and WHEREAS, funds are allocated and available from CalRecycle for Grants to cities, counties, and city and counties with regulatory authority within the city and county government to perform enforcement/compliance and surveillance activities of entities and/or individuals involved with the waste tire industry; and WHEREAS, CalRecycle has been delegated the responsibility for the administration of the Program within the State; and WHEREAS, in furtherance of this authority CalRecycle is required to establish necessary procedures governing the application, awarding and management of the Grants; and WHEREAS, procedures established by the State and CalRecycle require each Applicant's governing body to certify by resolution its approval of the submittal of a Grant Application to CalRecycle; and WHEREAS, the City of San Diego has agreed to perform waste tire activities on behalf of the City of Chula Vista. NOW, THEREFORE, BE IT RESOLVED that the City of Chula Vista authorizes the Ciry of San Diego to submit the California Department of Resources Recycling and Recovery a collaborative application for the Local Government Waste Tire Enforcement Grant on its behalf for the 20`h Grant Cycle and future grant cycles, through June 30, 2017. 16-16 Resolution No. Page 2 BE IT FURTHER RESOLVED that the City of Chula Vista authorizes the City of San Diego to execute all Grant-related documents, including, but not limited to, Applications, Payment Requests, Agreements and Amendments necessary to secure Grant funds and iirtplement and carry out the purposes specified in the Grant Application through June 30, 2017 on behalf of the City of Chula Vista. BE IT FURTHER RESOLVED that the City of Chula Vista authorizes the City of San Diego to conduct waste tire enforcement activities within the jurisdictional boundaries of the City of Chula Vista during the terms of the Local Government Waste Tire Enforcement Grants through June 30, 2017. Presented by Richard A. Hopkins Director of Public Works Approved as to 16-17