HomeMy WebLinkAbout2013-109 Revolving Loan Agrmt - DEQ - Clean Water #R11751
CLEAN WATER STATE REVOLVING FUND
LOAN AGREEMENT
No. R11751
BETWEEN
THE STATE OF OREGON
ACTING BY AND THROUGH ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
AND
CITY OF ASHLAND
i
r
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE2
TABLE OF CONTENTS
ARTICLE 1: THE LOAN - SPECIFIC TERMS 3 -
ARTICLE2: GENERAL LOAN PROVISIONS ......................................................................................4
ARTICLE 3: GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS ................................7
ARTICLE 4: CONDITIONS TO LOAN ......................:.........................................................................8
- ARTICLE 5: COVENANTS OF BORROWER..' ......:.......................................................10
ARTICLE G: REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS RELATINGTO
CONSTRUCTION PROJECTS ONLY 14
ARTICLE 7: DISCLAIMERS BY DEQ, LIMITATIONS ON DEQ'S LIABILITY ................................17
ARTICLE 8: DEFAULT AND REMEDIES 18
ARTICLE 9: DEFINITIONS 19
- ARTICLE 10: MISCELLANEOUS .....................................................................................................21.
APPENDIX A: REPAYMENT SCHEDULE 25
APPENDIX B: ESTIMATED CWSRF LOAN DISBURSEMENT SCHEDULE 26
APPENDIX C: DBE GOOD FAITH EFFORTS 27
APPENDIX D: APPLICABLE FEDERAL AUTHORITIES AND LAWS ("CROSS-CUTTERS") 28
APPENDIX E: DAVIS-BACON PROVISION 29
APPENDIX F: EQUAL EMPLOYMENT OPPORTUNITY .................................................38
APPENDIX G: CERTIFICATION REGARDING LOBBYING ..............................................40
CITY OF ASHLAND: R11751: 2718473 (8115111) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 3
THIS LOAN AGREEMENT is made and entered into as of the date it is fully executed
by both parties (and in the case of the State, approved by the Attorney General's Office, if
required) and is by and between the State of Oregon, acting by and through its Department of
Environmental Quality ("DEQ"), and the Borrower (as defined below). Unless the context
requires otherwise, capitalized terms not defined below shall have the meanings assigned to them
by ARTICLE 9 of this Loan Agreement. The reference number for the Loan made pursuant to
this Loan Agreement is Loan No. RI 1751.
DEQ agrees to make, and Borrower agrees to accept, the Loan on the terms and subject to the
conditions set forth below.
ARTICLE 1: THE LOAN - SPECIFIC TERMS
DEQ agrees to make the Loan on the following terms and conditions:
(A) BORROWER: City of Ashland.
(B) _ BORROWER'S ADDRESS: City of Ashland
20 E. Main Street
Ashland, Oregon 97520 .
Fax 541-488-6006
(C) LOAN AMOUNT: $4,549,691.
(D) TYPE AND PURPOSE OF LOAN. The Loan is a "Revenue Secured Loan" made by
DEQ pursuant to OAR Section 340-054-0065(2) for the purpose of financing the Project. This is
a sponsorship option loan, issued to the Borrower under OAR 340-054-0022(6)(c).
(E) PROJECTTITLE: Wastewater Membrane System Upgrade.
(F) DESCRIPTION OF THE PROJECT: Purchase and installation of new membrane
system upgrade at the wastewater treatment facility, per the Borrower's application dated January 8,
2009. This is also a sponsorship option Loan, which includes riparian restoration work within the
Bear Creek.Watershed..
(G) INTEREST RATE: One and 00/100 percent (1.00%) per annum. Calculation of
interest is also discussed in ARTICLE 2(E) and in ARTICLE 2(F)(4) of this Agreement.
(H) REPAYMENT PERIOD: An interest-only payment shall be made
September 1, 2015 and payments thereafter shall be made according to the schedule at
Appendix A. Repayment of amounts owed for the wastewater membrane system upgrade
shall end no later than (a) fifteen (15) years after the Completion Date or (b) fifteen (15)
years after the estimated Completion Date set forth in ARTICLE 3(A)(10), whichever
date is earlier.
(I) TERMS OF REPAYMENT: An interest-only payment within six months after the
estimated Project Completion Date set forth in ARTICLE 3(A)(10) and thereafter semi-annual
Cn'Y OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 4
payments of principal and interest in accordance with APPENDIX A and ARTICLE 2(F) of this
Agreement.
(.n PLEDGE: The Borrower hereby grants to DEQ a security interest in and
irrevocably pledges its Net Operating Revenues to secure payment of and to pay the amounts due
under this Loan Agreement. The Net Operating Revenues so pledged and hereafter received by
the Borrower shall immediately be subject to the lien of such pledge without physical delivery or
further act, and the lien of the pledge shall be superior to all other claims and liens whatsoever, to
the fullest extent permitted by ORS 287A.310. The Borrower represents and warrants that the
pledge of Net Operating Revenues hereby made by the Borrower complies with, and shall be
valid and binding from the date of this Agreement pursuant to, ORS 287A.310. The Borrower
covenants with DEQ. and any assignee of this Agreement that except as otherwise expressly
provided herein, the Borrower shall not issue any other obligations which have a pledge or lien
on the Net Operating Revenues superior to or on a parity with the pledge herein granted without
the written permission of DEQ. This Loan is a parity obligation with all other CWSRF loans
between DEQ and the Borrower; provided, however, that this provision shall not affect the
priority. that prior CWSRF loans are entitled to in relation to any loans between Borrower and
any third parties.
(K) ANNUAL.FEE: An annual fee of 0.5% of the Outstanding Loan Amount (as
determined prior to the posting of the payment due on that date) is due during the Repayment
Period commencing with the second-payment date hereunder and annually thereafter. Annual fee
payments due during the. calendar years 2013 and 2014, if any, will be 0.25% of the Outstanding
Loan Amount.
ARTICLE 2: GENERAL LOAN PROVISIONS
(A) AGREEMENT OF DEQ TO LOAN. DEQ agrees to loan the Borrower an amount not
to exceed the Loan Amount, subject to the terms and conditions of this Loan Agreement, but solely
from funds available to DEQ in the Water Pollution Control Revolving Fund for its Clean Water
State Revolving Fund program. This Loan Agreement is given as evidence of a Loan to the
Borrower made by DEQ pursuant to ORS Chapters 190, 286A, 287A, and 468, and OAR Chapter
340, all as amended from time to time, consistent with the express provisions hereof.
(B) AVAILABILITY OF FUNDS. DEQ's obligation to make the Loan described in this
Agreement is subject to the availability of funds in the Water Pollution Control Revolving Fund
for its CWSRF program, and DEQ shall have no liability to the Borrower or any other party if
such funds are not available or are not available in amounts sufficient to fund the entire Loan
described herein, as determined by DEQ in the reasonable exercise of its administrative
discretion. Funds may not be available ahead of the estimated schedule of disbursements .
submitted by the Borrower, which is attached as APPENDIX B. This schedule may be revised
from time to time by the parties without the necessity of an amendment by replacing the then
current APPENDIX B with an updated APPENDIX B which is dated and signed by both parties.
(C) DiSBURSEMF,NT OF LOAN PROCEEDS.
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OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND - PAGE5
(1) Project Account(s). Loan proceeds (as and when disbursed by DEQ to the
Borrower) shall be deposited in a Project account(s). The Borrower shall maintain
Project account(s) as segregated account(s). Funds in the Project account(s) shall only be
used to pay for Project costs, and all earnings on the Project account(s) shall be credited
to the account(s).
(2) Documentation of Expenditures. The Borrower shall provide DEQ with
written evidence of materials and labor furnished to and performed upon the
Project and such receipts for the payment of the same, releases, satisfactions and other
signed statements and forms as DEQ may reasonably require. DEQ will disburse funds to
pay Project costs only after the Borrower has provided documentation satisfactory to DEQ
that such Project costs have been incurred and qualify for reimbursement hereunder.
(3) Adjustments and Corrections. DEQ may at any time review and audit
requests for disbursement and make adjustments for, among other things, ineligible
expenditures, mathematical errors, items not built or bought, unacceptable work and other
discrepancies. Nothing in this Agreement requires DEQ to pay any amount for labor or
materials unless DEQ is satisfied that the claim therefor is reasonable and that the
Borrower actually expended and used such labor or materials in the Project. In addition,
DEQ shall not.be required to make any disbursement which would cause the total of all
disbursements made hereunder (including the requested disbursement) to be greater than
the total estimated cost of the work completed at the time of the disbursement, as
determined by DEQ.
(4) Contract Retainage Disbursement. DEQ will not disburse Loan proceeds to
cover contractor retainage unless the Borrower is disbursing reUnage to an escrow account
and provides proof of the deposit, or until the Borrower provides proof that it paid retained
funds to the contractor.
(D) AGREEMENT OF BORROWER TO REPAY. The Borrower agrees to repay all
amounts owed on this Loan asdescribed in ARTICLE 1(I) and ARTICLE 2(F) in U.S. Dollars in
immediately available funds at the place listed for DEQ in ARTICLE 10(A). In any case, the
Borrower agrees to repay all amounts owed on this Loan within the Repayment Period.
(E) INTEREST. Interest will accrue at the rate specified in ARTICLE 1(G) from the date
that a disbursement hereunder is mailed or delivered to the Borrower or deposited into an account of
the Borrower. Interest will accrue using a 365/366 day year and actual days elapsed until the Final
Loan Amount is determined and the final repayment schedule is prepared and thereafter on a 360-
day year basis and actual days elapsed.
(F) LOAN REPAYMENT. -
(1) Preliminary Repayment Schedule; Interim Payments. The attached
APPENDix A is a preliminary repayment schedule based on the estimated date of the first
disbursement hereunder and Loan Amount. Until the final repayment schedule is effective,
the Borrower shall make the payments set forth in the preliminary repayment schedule.
(2) Final Repayment Schedule. After the Borrower has submitted its final
request for Loan proceeds and DEQ has made all required disbursements hereunder, DEQ
CrrvoF ASHLAND: RI 1751: 2718473(8/15/11) LOAN AGREEMENT -
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 6.
will determine the Final Loan Amount and prepare a final payment schedule that provides
for level semi-annual installment payments of principal and interest (commencing on the
next semi-annual payment date), each in an amount sufficient to pay accrued interest to the
date of payment and to pay so much. of the principal balance as to fully amortize the then
Outstanding Loan Amount over the remaining Repayment Period.
(3) Crediting of Scheduled Payments. A scheduled payment received before
the scheduled repayment date will be applied to interest and principal on the scheduled
repayment date, rather than on the day such payment is received. Scheduled payments
will be applied first to fees due, if any, and then to interest, according to the applicable
repayment schedule, and then to principal.
(4) Crediting of Unscheduled Payments. All unscheduled payments, including
any prepayments and partial payments, will be applied first to fees due, if any, and then to
accrued unpaid interest (which will be computed as otherwise provided in this Agreement,
except that interest from the last payment date will be calculated using a 365/366 day year
and actual days elapsed), and then to principal. In the case of a Loan prepayment that does
not prepay all of the principal of the Loan, DEQ will determine, in its sole discretion,
how it will apply such Loan prepayment to the Outstanding Loan Amount. After a partial
payment, DEQ may, in its sole and absolute discretion, reamortize the Outstanding Loan
Amount at the same interest rate for the same number of payments to decrease the Loan
payment amount; provided, however, that nothing in this Agreement requires DEQ to accept
any partial payment or to reamortize the Outstanding Loan Amount if it accepts a partial
payment.
.(5) Final Payment. The Outstanding Loan Amount, all accrued and unpaid
interest, and all unpaid fees and charges due hereunder are due and payable no later than
twenty (20) years after the Completion Date.
(G) PREPAYMENT.
(1) Optional Prepayment. The Borrower may prepay any amount owed on this
Loan without penalty on any business 'day upon 24 hours prior written notice. Any
prepayment made hereunder will be applied in accordance with ARTICLE 2(F)(4).
(2) Refinancing of Loan by the Borrower. If the Borrower refinances the portion
of the Project financed by this Loan or obtains an additional grant or loan that is intended to
finance the portion of the Project financed by this Loan, it will prepay the portion of the
Loan being refinanced by the additional grant or loan.
(3). Ineligible Uses of the Project. If the Borrower uses the Project for uses that
are other than those described in ARTICLE 1(17) ('ineligible uses"), the Borrower shall,
upon demand by DEQ, prepay an amount equal to the Outstanding Loan Amount
multiplied by the percentage (as determined by DEQ) of ineligible use of the Project.
Such prepayment shall be applied against. the most remotely maturing principal
installments and shall not postpone the due date of any payment(s) hereunder.
CITY OF ASHLAND: RI 1751:2718473 (9115111) LOAN AOREHMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 7
(H) LATE PAYMENT FEE. The Borrower agrees to pay immediately upon DEQ's
demand a late fee equal to five percent (5%) of any payment (including any loan fee) that is not
received by DEQ on or before the tenth (10`x') calendar day after such payment is due hereunder.
(1) TERMINATION OF LOAN AGREEMENT. Upon performance by the Borrower of all
of its obligations under tlvs Loan Agreement, including payment in full of the Final Loan Amount,
all accrued interest and all fees, charges and other amounts due hereunder, this Loan Agreement will
terminate, and DEQ will release its interest in any collateral given as security under this Loan
Agreement.
ARTICLE3: GENERAL REPRF,SEN'TATIONS,WARRANTIESANDCOVENANTS
-
(A) REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and Warrants to DEQ that:
(1) It is a duly formed and existing public agency (as defined in ORS
468.423(2)) and has full power and authority to enter into this Loan Agreement
(2) This Agreement has been duly authorized and executed and delivered by
an authorized officer of the Borrower and constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms.
(3) All acts, conditions and things required to exist, happen and be performed
precedent to and in the issuance of this Agreement have existed, have happened, and have
been performed in due time, form and manner as required by law.
(4) Neither the execution of this Loan Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with any of the
terms and conditions of this Loan Agreement will violate any provision of law, or any
order of any court or other agency of government, or any agreement or other instrument
to which the Borrower is now a party or by which the Borrower or any of its properties or
assets is bound. Nor will this Loan Agreement be in conflict with, result in a breach of,
or constitute a default under, any such agreement or other instrument, or, except as
provided hereunder, result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the
Borrower.
n
(5) This Loan Agreement does not create any unconstitutional indebtedness.
The Loan Amount together with all of the Borrower's other obligations does not, and will
not, exceed any limits prescribed by the Constitution, any of the statutes of the State of
Oregon, the Borrower's charter, or any other authority.
(6) The Project is a project which the Borrower may undertake pursuant to
Oregon law and for which the Borrower is authorized by law to borrow money.
(7) The Borrower has full legal right and authority and all necessary licenses
and permits required as of the date hereof to own, operate and maintain the Facility and
CITY of ASHLAND: RI 1751:2718473 (8/15/11) - LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIAONK ENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 8
the Project, other than licenses and permits relating to the Facility or the Project which
the Borrower expects to and shall receive in the ordinary course of business, to carry on
its activities relating thereto, to execute and deliver this Agreement, to undertake and
complete t he Project, and to carry out and consummate all transactions contemplated by
this Agreement.
(8) The information contained herein which was provided by the Borrower is
true and accurate in all respects, and there is no material adverse information relating to
the Project or the Loan, known to the Borrower, that has not been disclosed in writing to
DEQ.
(9) No litigation exists or has been threatened that would cast doubt on the
enforceability of the Borrower's obligations under this Loan Agreement.
(10) The estimated Completion Date of the Project is June '30,2018. The
Borrower agrees to complete the Project by the estimated Completion Date.
(11) The estimated total Costs of the Project are $4,549,691.
(12) The Borrower is in compliance with all laws, ordinances, and .
governmental rules and regulations to which it is subject, the failure to comply with which would
materially adversely affect the ability of the Borrower to conduct its activities or undertake or
complete the Project or the condition (financial or otherwise) of the Borrower or the Project.
(B) CONTINUING REPRESENTATIONS OF THE BORROWER. The representations of
the Borrower contained herein shall be true on the closing date for the Loan and at all times
during the term of this Agreement.
(C) REPRESENTATIONS AND WARRANTIES OF DEQ. DEQ represents and warrants
that the Director has power under ORS Chapter 468 and OAR Chapter 340, Division 54, to enter
into the transactions contemplated by this Loan Agreement and to carry out DEQ's obligations
thereunder and that the Director is authorized to execute and deliver this,Loan Agreement and to
make the Loan as contemplated hereby.
ARTICLE 4: CONDITIONS TO LOAN
(A) CONDITIONS TO CLOSING. DEQ's obligations hereunder are subject to the
condition that on or prior to June 26, 2013, the Borrower will duly execute and deliver to DEQ
the following items, each in form and substance satisfactory to DEQ and its counsel:
(1) this Agreement duly executed and delivered by an authorized officer of the
Borrower;
(2) a copy.of the ordinance, order or resolution of the governing body of the
Borrower authorizing the execution and delivery of this Agreement, certified by an
authorized officer of the Borrower;
CITY OF ASHLAND: RI 1751: 2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 9
(3) Certification Regarding Lobbying, substantially in the form of APPENDIx G,
duly executed and delivered by an authorized officer of the Borrower; .
(4) an opinion of the legal counsel to the Borrower to the effect that:
(a) The Borrower has the power and authority to execute and deliver and
perform its obligations under this Loan Agreement;
(b) This Loan Agreement has been duly executed and acknowledged
where necessary by the Borrower's authorized representative(s), all required
approvals have been obtained, and all other necessary actions have been taken, so
that this Loan Agreement is valid, binding, and enforceable against the Borrower in
accordance with its terms, except as such enforcement is affected by bankruptcy,
insolvency, moratorium, or other laws affecting creditors rights generally;
(c) To such counsel's knowledge, this Loan Agreement does not violate
any other agreement, statute, court order, or law to which the Borrower is a party or
by which it or any of its property or assets is bound; and
(d) The Gross Revenues from which the -Net Operating Revenues are
derived and that are used as security for the Loan will not constitute taxes that are
limited by Section l lb, Article Xl of the Oregon Constitution; and
(5) such other documents, certificates, opinions and information as DEQ or its
counsel may reasonably require:
(B) CONDITIONS To DISBURSEMENTS. Notwithstanding anything in this Agreement
to the contrary, DEQ shall have no obligation to make any disbursement to the Borrower under
this Agreement unless:
(1) No Event of Default and no event, omission or failure of a condition which
would constitute an Event of Default after notice or lapse of time or both has occurred
and is continuing;
(2) All of the Borrower's representations and warranties in this Agreement are
true and correct on the date of disbursement with the same effect as if made on such date;
and
(3) The Borrower submits a disbursement request to DEQ that complies with the
requirements of ARTICLE 2(C);
provided, however, DEQ shall be under no obligation to snake any disbursement if:
(x) DEQ determines, in the reasonable exercise of its administrative discretion,
there is insufficient money available in the SRF and CWSRF Program for the Project; or
(y) there has been a change in any applicable state or federal law, statute, rule or
regulation so that the Project is no longer eligible for the Loan.
CITY OF ASHLAND: RI-1751:2718473 (8115111) Lok.N AGPFFA4ENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 10
ARTICLES:. COVENANTS OF BORROWER
(A) GENERAL COVENANTS OF THE BORROWER. Until the Loan is paid in full, the
Borrower covenants with DEQ that:
(1) The Borrower shall use the Loan lands only for payment or reimbursement of the
Costs of the Project in accordance with this Loan Agreement. The Borrower acknowledges and
agrees that the Costs of the Project do NOT include any Lobbying costs or expenses incurred by
Borrower or any person on.behalf of Borrower and that Borrower will not request payment or
reimbursement for Lobbying costs and expenses.
(2) If the Loan proceeds are insufficient to pay for the Costs of the Project in full, the
Borrower shall pay from its own funds and without any right of reimbursement from DEQ all such
Costs of the Project in excess of the Loan proceeds.
(3) The Borrower is and will be the owner of the Facility and the Project and shall
defend them against the claims and demands of all other persons at any time claiming the same
or any interest therein. .
(4) The Borrower shall not sell, lease, transfer, or encumber or enter into any
management agreement or special use agreement with respect to the Facility or any financial or
fixed asset of the utility system that produces the Net Operating Revenues without DEQ's prior
written approval, which approval may be withheld for any reason. Upon sale, transfer or
encumbrance of the Facility or the Project, in whole or in part, to a private person or entity, this
Loan shall be immediately due and payable in full.
(5) Concurrent with the execution and delivery of this Loan Agreement, or as soon
thereafter as practicable, the Borrower shall take all steps necessary to cause the Project to be
completed in a timely manner in accordance with all applicable DEQ requirements. Project
construction must begin within five (5) years of the environmental determination required by
OAR 340-054-0022(5)(c). Borrower shall take reasonable steps to begin using the Loan
proceeds within two (2) years after execution of this Agreement, and if Borrower fails to do so,
DEQ may terminate this Agreement.
(6) The Borrower shall take no action that would adversely affect the eligibility of the
Project as a CWSRF project or cause a violation of any Loan covenant in this Agreement.
(7) The Borrower shall undertake the Project, request disbursements under this Loan
Agreement, and use the Loan proceeds in full compliance with all applicable laws and
regulations of the State of Oregon, including but not limited to ORS Chapter 468 and Oregon
Administrative Rules Sections 340-054-0005 to 340-054-0065, as they may be amended from
time to time, and all applicable federal authorities and laws and regulations of the United States,
including but not limited to Title VI of the Clean Water Act as amended by the Water Quality
Act of 1987, Public Law 100-4, the federal cross-cutters listed at APPENDIX D, the equal
employment opportunity provisions in APPENDIX F, and the regulations of the U.S.
Environmental Protection Agency, all as they may be amended from time to time.
(8) The Borrower shall keep the Facility in good repair and working order at all times
and operate the Facility in an efficient and economical manner. The Borrower shall provide the
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND - PAGE 11
necessary resources for adequate operation, maintenance and replacement of the Project and retain
sufficient personnel to operate the Facility.
(9) Interest paid on this Loan Agreement is not excludable from gross income
under Section 103(a) of the Internal Revenue Code of 1986, as amended (the "Code").
However, DEQ may have funded this Loan with the proceeds of State bonds that bear
interest that is excludable from gross income under Section 103(a) of the Code. Section
141 of the Code requires that the State not allow the proceeds of the State bonds to be
used by private entities (including the federal government) in such a way that the State
bonds would become "private activity bonds" as defined in Section 141 of the Code. To
protect the State bonds the Borrower agrees that it shall not use the Loan proceeds or
lease, transfer or otherwise permit the use of the Project by any private person or entity in
any way that that would cause this Loan Agreement or the State bonds to be treated as
"private activity bonds" under Section 141' of the Code and the regulations promulgated
under that Section of the Code.
(B) DEBT SERVICE COVERAGE REQUIREMENT; WASTEWATER RATE
COVENANT; REPORTING.
(1) Debt Service Coverage Requirement. The Borrower shall maintain
wastewater rates and charge fees in connection with the operation of the Facility that are
adequate to generate Net Operating Revenues in each fiscal year sufficient to pay (i) all debt
service (excluding debt service on the Loan), (ii) all other financial obligations imposed in
connection with prior lien obligations of the Borrower, and (iii) an amount equal to the debt
service coverage factor of 105% multiplied by the debt service payments due under this
Loan Agreement in that fiscal year. .
(2).. Wastewater Rate Adjustments. The Borrower shall review its wastewater
rates and fees at least annually. If, in any fiscal year, the Borrower fails to collect fees
sufficient to meet the debt service coverage requirement described in ARTICLE 5(B)(1), the
Borrower shall promptly adjust its wastewater rates and fees to assure'future compliance
with such coverage requirement. The Borrower's adjustment of the wastewater rates and
fees does not constitute a cure of any default by the Borrower of the debt service coverage
requirement set forth in ARTICLE 5(B)(1). The Borrower's failure to adjust rates shall not, .
at the discretion of DEQ, constitute a default if the Borrower transfers to the fund that holds
the Net Operating Revenues unencumbered resources in an amount equal to the revenue
deficiency to the Facility that produces the Net Operating Revenues.
(3) Reporting Requirement. By December 31 of each year the Borrower shall
provide DEQ with a report that demonstrates the Borrower's compliance with the
requirements of this ARTICLE 5(B). If the audit report described in ARTICLE 5(F)
identifies the Net Operating Revenues and contains a calculation demonstrating the
Borrower's satisfaction of the requirements of this ARTICLE 5(B), that audit will satisfy the
requirements of this ARTICLE 5(B)(3).
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OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 12
(C) LOAN RESERVE REQUIREMENT; LOAN RESERVE ACCOUNT.
(1) Loan Reserve Requirement. The Loan reserve requirement equals 100%
times one-half of the average annual debt service based on the final repayment schedule.
Until the Final Loan Amount is calculated, the Loan reserve requirement is $210,174. The
Borrower shall deposit the Loan reserve requirement amount into the Loan Reserve Account
no later than the date the first payment is due hereunder.
(2) Loan Reserve Account. The Borrower shall create a segregated Loan
Reserve Account that shall be held in trust for the benefit of DEQ. The Borrower hereby
grants to DEQ a security interest in and irrevocably pledges the Loan Reserve Account to
pay the amounts due under this Loan Agreement. The funds in Loan Reserve Account so
pledged and hereafter received by the Borrower shall immediately be subject to the lien
of such pledge without physical delivery or further act, and the lien of the pledge shall be
superior to all other claims and liens whatsoever, to the fullest extent permitted by ORS
287A.310. The Borrower represents and warrants that the pledge of the Loan Reserve
Account hereby made by the Borrower complies with, and shall be valid and binding
from the date of this Agreement pursuant to, ORS 287A.310. The Borrower shall use the
funds in the Loan Reserve Account solely to pay amounts due hereunder until the principal,
interest, fees, and any other amounts due hereunder have been fully paid.
(3) Additional Deposits. If the balance in the Loan Reserve Account falls below
the Loan reserve' requirement, the Borrower shall promptly deposit from the first Net
Operating Revenues available after payment of the arnounts due hereunder (unless the
Borrower has previously made such deposit from other money of the Borrower) an amount
sufficient to restore the balance up to the Loan reserve requirement.
(D) INSURANCE. At its own expense, the Borrower shall, during the term of this
Agreement, procure and maintain insurance coverage (including, but not limited to, hazard, flood
and general liability insurance) adequate to protect DEQ's interest and in such amounts and against
such risks as are usually insurable in connection with similar projects and as is usually carried by
entities operating similar facilities. The insurance shall be with an entity which is acceptable to
DEQ. The Borrower shall provide evidence of such insurance to DEQ. Self insurance maintained
pursuant to a recognized municipal program of self-insurance will satisfy this requirement.
(E) ]NDEMNlF/CAT70N. The Borrower shall, to the extent permitted by law and the
Oregon Constitution, indemnify, save and hold the State, its officers, agents and, employees
harmless from and (subject to ORS Chapter 180) defend each of them against any and all claims,
suits, actions, losses, damages, liabilities, cost and expenses of any nature whatsoever resulting
from, arising out of or relating to the acts or omissions of the Borrower or its officers, employees,
subcontractors or agents in regard to this Agreement or the Project.
(F) TAE BORROWER'S FINANCIAL RECORDS, FINANCIAL REPORTING
REQUIREMENTS.
(1) . Financial Records. The Borrower shall keep proper and complete books
of record and account and maintain all fiscal records related to this Agreement, the
CITY OF ASHLAND: R11751: 2718473 (8115111) - LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVTNG FUND PACE 13
Project, and the Facility in accordance with generally accepted accounting principles,
generally accepted government accounting standards, the requirements of the
Governmental Accounting Standards Board, and state minimum standards for audits of
municipal corporations. The Borrower must maintain separate Project accounts in
accordance with generally accepted government accounting standards promulgated by the
Governmental Accounting Standards Board. The Borrower will permit DEQ and the
Oregon Secretary of State and their representatives to inspect its properties, and all work
done, labor performed and materials furnished in and about the Project, and DEQ, the
Oregon Secretary of State and the federal government and their duly authorized
representatives shall have access to the Borrower's fiscal records and other books,
documents, papers, plans and writings that are pertinent to this Agreement to perform
examinations and audits and make excerpts and transcripts and take copies.
(2) Record Retention Period. The Borrower shall retain and keep accessible
files and records relating to the Project for at least six (6) years (or such longer period as
may be required by applicable law) after Project completion as determined by DEQ and
financial files and records until all amounts due under this Loan Agreement are fully repaid,
or until the conclusion of any audit, controversy, or litigation arising out Of or related to this
Agreement, whichever date is later.
(3) Audit. Federal enabling legislation and applicable regulations require an
audit of each CWSRF Loan. The Borrower agrees to provide to DEQ the following which
DEQ agrees to accept as adequate to meet this federal audit requirement.
(a) As soon as possible, but in no event later than six (6) months
following the Project Completion Date, a full and complete accounting of the Costs
of the Project, including but not limited to documentation to support each cost
element and a summary of the Costs of the Project and the sources of funding; and
(b) As soon as possible, but in no event later than nine (9) months after
the end of each fiscal year, a copy of the Borrower's annual audit report, if requested
by DEQ.
(4) Single Audit Act Requirements. The CWSRF Program receives
capitalization grants through the Catalog of Federal Domestic Assistance ("CFDA") No.
66.458: Capitalization Grants for State Revolving Funds and is subject to the regulations
of the U.S. Environmental Protection Agency ("EPA"). The CWSRF Program is subject
to the U.S.. Office of Management and Budget Circular A-133, "Audits of States, Local
Governments, and Non-Profit Organizations" implementing the Single Audit Act of
1984, 31 U.S.C. §§7501-7507 (1994) as amended by Pub. L. 104-156, §§1-3, 110 Stat.
1397 (1996) ("Circular A-133"). As a sub-recipient of a federal grant, the Borrower is
subject to Circular A-133 to the extent that Loan proceeds include federal capitalization
grant funds. DEQ will notify the Borrower of the sources of the Loan funds at the end of
each fiscal year, and to the extent required, the Borrower is responsible for compliance
with the requirements of Circular A-133.
(G) DBE GOOD FAITH EFFORT. Pursuant to the good faith efforts described in
APPENDIX C, the Borrower shall make a good faith effort to promote fair share awards to
Minority Business Enterprises ("MBE"), Women's Business Enterprises ("WBE"), and Small
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) IRAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 14
Businesses in Rural Areas ("SBRA") on all contracts and subcontracts awarded as part of the
Project. The Borrower agrees to include in its contract(s) with its prime contractor(s), the
following language, which must not be altered in any way:
"The contractor shall not discriminate on the basis of race, color, national
origin or sex in the performance of this contract. The contractor shall carry out
applicable requirements of 40 CFR part 33 in the award and administration of
contracts awarded under EPA financial assistance agreements. Failure by the
contractor to carryout these requirements is a material breach of this contract
which may result. in the termination of this contract or other legally available
remedies."
The Borrower also agrees to include, in its contract(s) with its prime contractor(s), and shall
cause each contract awarded by its prime contractor(s) to include, language to the following
effect (the exact language may vary):
(1) A prime contractor must pay its subcontractor(s) no more than 30 days from
the prime contractor's receipt of payment from the Borrower.
(2) The Borrower must be notified in writing by its prime contractor prior to any
termination of a DBE subcontractor for convenience by the prime contractor.
(3) If a DBE subcontractor fails to complete work under the subcontract for any
reason, the prime contractor must employ the Six Good Faith Efforts described in 40
C.F.R. 33.301 if soliciting a replacement subcontractor.
(4) A prime contractor must employ the Six Good Faith Efforts even if the
prime contractor has achieved its Fair Share Objectives under Subpart D of 40 C.F.R.
Part 33.
(11) CONTRACT LANGUAGE. The Borrower shall include in all contracts (unless
exempt) with its prime contractor(s) the language set forth in APPENDIX F. Further, the Borrower
agrees to fully comply with Subpart C of 2 C.F.R. 180 and Subpart C of 2 C-F-R. 1532 regarding
debarment and suspension and agrees to include. or cause to be included in any contract at any
tier the requirement that a contractor comply with Subpart C of 2 C.F.R. 180 and Subpart C of 2
C.F.R. 1532 if the contract is expected to equal or exceed $25,000.
(1) PROJECT ASSURANCES. Nothing in this Loan Agreement prohibits the Borrower
from requiring more assurances, guarantees, indemnity or other contractual requirements from any
party performing Project work.
ARTICLE 6: REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS RELATING TO
CONSTRUCTION PROJECTS ONLY
(A) TDE BORROWER'S REPRESENTATION AND WARRANTY REGARDING COSTS
ALREADY INCURRED. .
(1) The Borrower represents and warrants to DEQ that, as of the date of this
Loan Agreement, the Costs of the Project actually incurred by the Borrower for
construction, do not exceed $-1,645,280-.
CITY OF A$I'IIANn: RI 1751:2718473 (8/15111) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY -
CLEAN WATER STATE REVOLVING FUND - PAGE 15
(2) The Borrower acknowledges that DEQ is relying upon the Borrower's
representation regarding the amount of Costs of the Project incurred by the Borrower for
construction prior to the date of this Loan Agreement as set forth in ARTICLE 6(A)(1)
above to determine what portion of the Loan qualifies as a "refinancing" under the EPA's
Clean Water State Revolving Fund regulations, 40 C.F.R. Part 35, that may be disbursed on
a reimbursement basis-
(B) CONDITION TO DISBURSEMENTS. DEQ's obligation to make disbursements
hereunder is further conditioned on the following:
(1) The Borrower's plans, specifications and related documents for the Project
shall be reviewed and approved by DEQ, as required by OAR Chapter 340, Division 054.
(2) The Borrower has submitted documentation satisfactory to DEQ that the
disbursement is for work that complies with plans, specifications, change orders and
addenda approved by DEQ, in accordance with OAR Chapter 340, Division 054.
(3) The Borrower has submitted a copy of the awarded contract and bid
documents (including a tabulation of all bids received) to DEQ for the portion of the
Project costs that will be funded with the disbursement.
(C) GENERAL PROVISIONS. The Borrower covenants with DEQ that:
(1) Construction Manual. Unless stated otherwise in this Agreement, the
Borrower shall comply with the requirements set forth in the Manual as in effect from
time to time. DEQ will provide the Borrower with a copy of the Manual upon request.
(2) Plans and Specifications. The Borrower shall obtain DEQ's review and
approval of the Borrower's plans, specifications, and related documents for the Project, as
required by OAR Chapter 340, Division 054, prior to any disbursement of Loan proceeds
hereunder.
(3) Change Orders. The Borrower shall submit all change orders to DEQ.
The Borrower must submit prior to its execution any change order that exceeds $100,000 or
will alter Project performance. The Borrower shall not use any Loan proceeds to pay for
costs of any change order that DEQ has not approved in writing. This ARTICLE 6(C)(3)
shall not prevent the Borrower from using funds other than Loan proceeds to pay for -
a change order before DEQ approves it, but the Borrower bears the risk that DEQ will not
approve the change order.
(4) Inspections; Reports. The Borrower shall provide inspection reports
during the construction of the Project as required by DEQ to ensure that the Project
complies with approved plans and specifications. Qualified inspectors shall conduct
these inspections under the direction of a registered civil, mechanical or electrical
engineer, whichever is appropriate. DEQ or its representative(s) may enter property
owned or controlled by the Borrower to conduct interim inspections and require progress
reports sufficient to determine compliance with approved plans and specifications and
with the Loan Agreement, as appropriate.
CITY OF ASHLAND: R11751: 2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 16
(5) Asbestos and Other Hazardous Materials. The Borrower, shall ensure that
only persons trained and qualified for removal of asbestos or other Hazardous Materials will
remove any asbestos or Hazardous Materials, respectively, which may be part of this
Project
(6) Operation and Maintenance Manual. The Borrower shall submit to DEQ a
draft Facility operation and maintenance manual before the Project is fifty percent (50%)
complete. The Borrower shall submit to DEQ a final Facility operation and maintenance
manual that meets DEQ's approval before the Project is ninety percent (90%) complete.
(7) Proiect Performance Certification. The Borrower shall submit to DEQ draft
performance standards before the Project is fifty percent (50%) complete. The Borrower
shall submit to DEQ final performance standards that meet DEQ's approval before the
Project is ninety percent (90%) complete. The Borrower shall submit to DEQ the following
done in accordance with the Manual: (i) no later than 10.5 months after the Initiation of
Operation (as that term is defined in OAR 340-054-0010(26)), a performance evaluation
report based on the approved performance standards; (ii) within one year after the Project's
Initiation of Operation, Project performance certification statement; and (iii) within two (2)
months of submission of such Project performance certification statement, a corrective
action plan for any Project deficiencies noted in said statement.
(8) Alterations After Completion. The Borrower shall not materially alter the
design or structural character of the Project after completing the Project without DEQ's
written approval.
(9) Project Initiation of Operations.
(a) The Borrower shall notify DEQ of the Initiation of Operation no
more than thirty (30) days after the actual Project Completion Date.
(b) If the Project is completed, or is completed except for minor
items, and the Project is operable, but DEQ has not received a notice of
Initiation of Operation from the Borrower, DEQ may assign an Initiation of
Operation date.
(D) PROVISION APPLICABLE TO CONTRACTS AND SUBCONTRACTS AWARDED
FOR THE PROJECT
(1) Davis-Bacon Requirements. All contracts and subcontracts awarded as.
part of the Project shall comply with (1) the wage requirements of the Davis-Bacon Act,
as amended, 40 U.S.C. §§3141 to 3144, 3146 and 3147 (2002), and (2) the requirements
of the Prevailing Wage Rates for Public Works Projects in Oregon established under
ORS 279C.800 through 279C.870 and OAR 839-025-0000 through 839-025-0540. The
Borrower agrees that it will insert into any contract in excess of $2,000 for construction,
and will cause its subcontractors to insert in any sub-contract in excess of $2,000 for .
construction, the Davis-Bacon language set forth in Part 1 of APPENDIX E, and Part 2 of
APPENDIX E as applicable. -
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 17 . .
(2) Retainage. The Borrower shall require a five percent (5%) retaiuage in all of
its contracts related to the Project for an amount greater than One Hundred Thousand
Dollars ($100,000).
ARTICLE 7: DISCLAIMERS BY DEQ; LIMITATION OFDEQ'S LIABILITY
(A) DISCLAIMER OF ANY WARRANTY. DEQ EXPRESSLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, REGARDING THE PROJECT, THE QUALITY OF MATERIALS
SUPPLIED TO AND THAT BECOME A PART OF THE PROJECT, THE QUALITY OF THE
WORKMANSHIP PERFORMED UPON THE PROJECT, OR TIC EXTENT AND STAGE OF
COMPLETION OF THE PROJECT. No such warranty or guarantee shall be implied by virtue of
any inspection or disbursement made by DEQ. Any inspection done by DEQ shall be for its sole
benefit.
(B) DISCLAIMER OF LIABILITY OF DEQ. DEQ EXPRESSLY DISCLAIMS
LIABILITY OF ANY KIND OR CHARACTER WHATSOEVER FOR PAYMENT OF
LABOR OR MATERIALS OR OTHERWISE IN CONNECTION WITH THE COMPLETION
OF THE PROJECT OR CONTRACTS ENTERED INTO BY THE BORROWER WITH
THIRD PARTIES FOR THE COMPLETION OF THE PROJECT. All Project costs of labor,
materials and construction, including any indirect costs, shall be the responsibility of and shall be
paid by the Borrower.
(C) NONLIABILITY OF STATE.
(1) The State and its officers, agents and employees shall not be liable to the
Borrower or to any other party for any death, injury, damage, or loss that may result to
any person or property by or from any cause whatsoever, arising out of any defects in the
plans, design drawings and. specifications for the Project, any agreements or documents
between the Borrower and third parties related to the Project or any activities related to
the Project. DEQ shall not be responsible for verifying cost-effectiveness of the Project,
doing cost comparisons or reviewing or monitoring compliance by the Borrower or any
other party with state procurement laws and regulations.
(2) The Borrower hereby expressly releases and discharges DEQ, its officers,
agents and employees from all liabilities, obligations and claims arising.out of the Project
work or under the Loan, subject only to exceptions previously agreed upon in writing by
the parties.
(3) Any findings by DEQ concerning the Project and any inspections or analyses
of the Project by DEQ are for detennining eligibitity for the Loan and disbursement of Loan
proceeds only. Such findings do not constitute an endorsement of.the feasibility of the
Project or its components or an assurance of any kind for any other purpose.
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREET~'Nr
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND - PAGE 18
(4) Review and approval of Facilities plans, design drawings and specifications
or other documents by or for DEQ does not relieve the Borrower of its responsibility to
properly plan, design, build and effectively operate and maintain the Facility as required by
law, regulations, permits and good management practices.
ARTICLE 8: DEFAULT AND REMEDIES
(A) EVENTS OF DEFAULT. The occurrence of one or more of the following events
constitutes an Event of Default, whether occurring voluntarily or involuntarily, by operation of law
or pursuant to any order of any court or governmental agency:
(1) The Borrower fails to make any. Loan payment within thirty (30) days
after the payment is scheduled to be made according to the repayment schedule;
(2) Any representation or warranty made by the Borrower hereunder was untrue
in any material respect as of the date it was made;
(3) The Borrower becomes insolvent or admits in writing an inability to pay its
debts as they mature or applies for, consents to, or acquiesces in the appointment of a trustee
or receiver for the Borrower or a substantial part of its property; or in the absence of such
application, consent, or acquiescence, a trustee or receiver is appointed for the Borrower or a
substantial part of its property and is not discharged within sixty (60) days; or any
bankruptcy, reorganization, debt arrangement or moratorium or any dissolution or
liquidation proceeding is instituted by or against the Borrower and, if instituted against the
Borrower, is consented to or acquiesced in by the Borrower or is not dismissed within
twenty (20) days;
.(4) As a result of any changes in the United States Constitution or the
Oregon Constitution or as a result of any legislative, judicial, or administrative action, any
part of this Loan Agreement becomes void, unenforceable or impossible to perform in
accordance with the intent and purposes of the parties hereto or is declared unlawful;
(5) The Borrower defaults in the performance or observance of any covenants
or agreements contained in any loan documents between itself and any lender or lenders,
and the default remains uncured upon the expiration of any cure period provided by said
.loan documents; or
(6) The Borrower fails to cure non-compliance in any material respect with any
other covenant, condition, or agreement of the Borrower hereunder, other than as set forth in
(1) through (5) above within a period of thirty (30) days after DEQ provides notice of the
noncompliance.
(B) REMEDIES. If DEQ determines that an Event of Default has occurred, DEQ may,
without further notice:
CITY OF ASHLAND: RI 1751:2718473 (8/15111) - LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 19
(1) Declare the Outstanding Loan Amount plus any unpaid accrued interest, fees
and any other amounts due hereunder immediately due and payable;
(2) Cease making disbursement of Loan proceeds or make some
disbursements of Loan proceeds and withhold or refuse to make other disbursements;
(3) Appoint a receiver, at the Borrower's expense, to operate the Facility that
produces-the pledged revenues and collect the Gross Revenues;
(4) Set and collect utility rates and charges;.
(5) Pay, compromise or settle any liens on the Facility or the Project or pay other
sums required to be paid by the Borrower in connection with the Project, at DEQ's
discretion, using the Loan proceeds and such additional money as may be required. If DEQ
pays any encumbrance, lien, claim, or demand, it shall be subrogated, to the extent of the
amount of such payment, to all the rights, powers, privileges, and remedies of the holder of
the encumbrance, lien, claim, or demand, as the case may be. Any such subrogation rights
shall be additional cumulative security for the amounts due under this Loan Agreement;
(6) Direct the State Treasurer to withhold any amounts otherwise due to the
Borrower from the State of Oregon and, to the extent permitted by law, direct that such
funds be applied to the amounts due DEQ under this Loan Agreement and he deposited into
the SRF; and
(7) Pursue any other legal or equitable remedy it may have.
ARTICLE 9: DEFINITIONS
(A) "BORROWER" means the public agency (as defined in ORS 468.423(2)) shown as
the "Borrower" in Article 1(A) of this Agreement.
(B) "COMPLETION DATE" means the date on which the Project is completed. If the
Project is a planning project, the Completion Date is the date on which DEQ accepts the planning
project. If the Project is a design project, the Completion Date is the date on which the design
project is ready for the contractor bid process. If the Project is a construction project, the
Completion Date is the date on which the construction project is substantially complete and ready
for Initiation of Operation.
(C) "COSTS OF TAE PROJECT" means expenditures approved by DEQ that are
necessary to construct the Project in compliance with DEQ's requirements and may include but are
not limited to the following items:
(1) Cost of labor and materials and all costs the Borrower is required to pay
under the terms of any contract for the design, acquisition, construction or installation of the
Project;
(2) Engineering fees for the design and construction of the Project.
CITY OF Asf (LAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE20
(3) The costs of surety bonds and insurance of all kinds that may be required or
necessary during the course of completion of the Project;
(4) The legal, financing and administrative costs of obtaining the Loan and
completing the Project; and
(5) Any other costs approved in writing by DEQ.
(D) "CWSRF PROGRAM" or "CWSRF" means the Clean Water State Revolving Fund
Loan Program, a loan program administered by DEQ under ORS 468.423 to 468.440.
(E) "DEQ" means the Oregon Department of Environmental Quality.
(F) "DIRECTOR" means the Director of DEQ or the Director's authorized representative.
(G) "FACiLITV" means all property owned or used by the Borrower to provide
wastewater collection, treatment and disposal services, of which the Project is a part.
(H) "FINAL LOAN AMOUNT" means the total of all Loan proceeds disbursed to the
Borrower under the Loan Agreement, determined on the date on which the Borrower indicates that
no further Loan funds will be requested, all eligible expenditures have been reimbursed from the
Loan proceeds, or all Loan proceeds have been disbursed hereunder, whichever occurs first.
(1) "GROSS REVENUES" means all fees and charges resulting from operation of the
Facility and any interest earnings thereon; provided however, Gross Revenues does not include: the
proceeds of any grants; the proceeds of any borrowings for capital improvements; the proceeds of
any liability insurance; or the proceeds of any casualty insurance which the Borrower intends to and
does utilize for repair or replacement of the Facility or a part thereof.
(,n "HAZARDOUS MATERIALS" means and includes flammable explosives, radioactive
materials, asbestos and substances defined as hazardous materials, hazardous substances or
hazardous wastes in the Comprehensive Environmental Response, Compensation, and Liability Act,
as amended by the Superfund Amendments and Reauthorization Act (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq.) and the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.), and regulations
promulgated thereunder.
(In "LOAN" means the loan made pursuant to this Loan Agreement.
(L) "LOAN AGREEMENT" or "AGREEMENT" means this loan agreement and its
exhibits, appendices, schedules and attachments (which are by this reference incorporated
herein)', and any amendments thereto.
(M) "LOAN AMOUNT" means the maximum amount DEQ agrees to loan the Borrower
hereunder.
(1V) "LOAN RESERVE ACCOUNT" means the account described in ARTICLE 5(c)(2).
CrrY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGPEEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE21.
(O) "LOBBYING" means influencing or attempting to influence a member, officer or
employee of a governmental agency or legislature in connection with the awarding of a
government contract, the making of a government grant or loan or the entering into of a
cooperative agreement with such governmental entity or the extension, continuation, renewal,
amendment or modification of any of the above.
(P) "MANUAL" means the CWSRF Manual for Construction Projects.
(Q) "NET OPERATING REVENUES" means the Gross Revenues less the Operating
Expenses for the Facility.
(R) "OPERATING ExPENSES" means all direct and indirect expenses incurred for
operation, maintenance and repair of the Facility, including but is not limited to administrative
expenses, legal, financial and accounting expenses, insurance premiums, claims (to the extent that
monies are not available from insurance proceeds), taxes, engineering expenses relating to operation
and maintenance, payments and reserves for pension, retirement, health, hospitalization, and sick
leave benefits, and any other similar expenses to be paid to the extent properly and directly
attributable to operations of the Facility. Operating expenses include an appropriate amount for
reserves for repair and replacement of the Facility based on the expected life of the collection,
treatment and disposal facilities.
(S) "OUTSTANDING LOAN AMOUNT" means, as of any date, the sum of all
disbursements to the Borrower hereunder less the sum of all Loan principal payments received by
DEQ.
(T) "PROJECT" means the facilities, activities or documents described in ARTICLE
I (E) and (F).
(11) "REPAYMENT PERIOD" means the repayment period ending on the date specified in
ARTICLE 1(H) which date shall not in any event be later than twenty (20) years after the
Completion Date.
M "SRF" means the Water Pollution Control Revolving Fund established under ORS
468.427, also known as the State Revolving Fund.
(W) "STATE" means the State of Oregon.
ARTICLE 10: MISCELLANEOUS
(A) NOTICES. All notices, payments, statements, demands, requests or other
communications under this Loan Agreement by either party to the other shall be in writing and shall
be sufficiently given and served upon the other patty if delivered by personal delivery, by certified
mail, return receipt requested, or by facsimile transmission, and, if to the Borrower, delivered,
addressed or transmitted to the location or number listed in ARTICLE 1(B), and if to DEQ,
delivered, addressed or transmitted to:
Clean Water State Revolving Fund Loan Program
Water Quality Division
Department of Environmental Quality
811 S.W. Sixth Avenue
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN Aomu E-NT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE22
Portland, Oregon 97204-1390
Fax (503) 229-6037
or to such other addresses or numbers as the parties may from time to time designate. Any notice or
other communication so addressed and mailed shall be deemed to be given five (5) days after
mailing. Any notice or other communication delivered by facsimile shall be deemed to be given
when receipt of the transmission is generated by the transmitting machine. To be effective against
DEQ, such facsimile transmission must be confirmed by telephone notice to DEQ's CWSRF
Program Coordinator. Any notice or other communication by personal delivery shall be deemed to
be given when actually delivered.
(B) WAIVERS AND RESERVATION OF RIGHTS.
(1) DEQ's waiver of any breach by the Borrower of any term, covenant or
condition of this Loan Agreement shall not operate as a waiver of any subsequent breach of
the same or breach of any other term, covenant, or condition of this Loan Agreement. DEQ
may pursue any of its remedies hereunder concurrently or consecutively without being
deemed to have waived its right to pursue any other remedy.
(2) Nothing in this Loan Agreement affects DEQ's right to take remedial
action, including, but not limited to, administrative enforcement action and action for
breach of contract against the Borrower, if the Borrower fails to carry out its obligations
under this Loan Agreement.
(C) TIME Is OF THE ESSENCE. The Borrower agrees that time is of the essence under
this Loan Agreement.
(D) RELATIONSHIP OF PARTIES. The parties agree and acknowledge that their
relationship is that of independent contracting parties, and neither party hereto shall be deemed
an agent, partner, joint venturer or related entity of the other by reason of this Loan Agreement.
(E) No THIRD PARTY BENEFICIARIES. DEQ and the Borrower are the only parties to
this Loan Agreement and are the only parties entitled to enforce the terms of this Loan
Agreement. Nothing in this Loan Agreement gives, is intended to give, or shall be construed to
give or provide any benefit or right not held by or made generally available to the public,
whether directly, indirectly or otherwise, to third persons unless such third persons are
individually identified by name herein and expressly described as intended beneficiaries of the
terms of this Loan Agreement. Any inspections, audits, reports or other assurances done or
obtained, or approvals or consents given, by DEQ are for its benefit only for the purposes of
administering this Loan and the CWSRF Program.
(F) ASSIGNMENT. DEQ shall have the right to transfer the Loan or any part thereof,
or assign any or all of its rights under this Loan Agreement, at any time after execution of this
Loan Agreement upon written notice to the Borrower. Provisions of this Loan Agreement shall
inure to the benefit of DEQ's successors and assigns. This Loan Agreement or any interest
therein may be assigned or transferred by the Borrower only with DEQ's prior written approval
(which consent may be withheld for any reason), and any assignment or transfer by the
Borrower in contravention of this ARTICLE 10(F) shall be null and void.
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OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 23
(G) DEQ NOT REQUIRED To ACT. Nothing contained in this Loan Agreement requires
DEQ to incur any expense or to take any action hereunder in regards to the Project.
(H) FURTHER ASSURANCES. The Borrower and DEQ agree to execute and deliver any
written instruments necessary to carry out any agreement, term, condition or assurance in this Loan
Agreement whenever a party makes a reasonable request to the other party for such instruments.
(I) VALIDITY AND SEVERARILITY; SURVIVAL. If any part, term, or provision of this
Loan Agreement or of any other Loan document shall be held by a court of competent jurisdiction
to be void, voidable, or. unenforceable by either party, the validity of the remaining portions, terms
and provisions shall not be affected, and all such remaining portions, terms and provisions shall
remain in full force and effect. Any provision of this Agreement which by its nature or terms is . .
intended to survive termination, including but not limited to ARTICLE 5(E), shall survive
termination of this Agreement.
(.t) No CONSTRUCTION AGAINST DRAFTER. Both parties acknowledge that they, are
each represented by and have sought the advice of counsel in connection with this Loan Agreement
and the transactions contemplated hereby and have read and understand the terms of this Loan
Agreement. The terns of this Loan Agreement shall not be construed against either party as the
drafter hereof.
(K) HEADINGS. All headings contained herein are for convenience of reference only and
are not intended to define or limit the scope of any provision of this Loan Agreement.
(L) ATTORNEYS' FEES AND EXPENSES. In any action or suit to enforce any right or
remedy under this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs, to the extent permitted by law:
(M) CHOICE OF LAw; DESIGNATION OF FORUM; FEDERAL FORUM.
(1) The laws of the State of Oregon (without giving effect to its conflicts of law.
principles) govern all matters arising out of or relating to this Agreement, including, without
limitation, its validity, interpretation, construction, performance, and enforcement.
(2) Any party bringing a legal action or proceeding against any other party arising out
of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of
the State of Oregon for Marion County (unless Oregon law requires that it be brought and
conducted in another county). Each party hereby consents to the exclusive jurisdiction of such
court, waives any objection to venue, and waives any claim that such forum is an inconvenient
forum.
(3) Notwithstanding ARTICLE I O(M)(2), if a claim must be brought in a federal forum,
then it must be brought and adjudicated solely and exclusively within the United States District
Court for the District of Oregon. This ARTICLE I0(M)(3) applies to a claim brought against the
State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon's
sovereign immunity and is not consent by the State of Oregon to be sued in federal court. This
ARTICLE 10(M)(3) is also not a waiver by the State of Oregon of any form of defense or
immunity, including but not limited to sovereign immunity and immunity based on the Eleventh
Amendment to the Constitution of the United States.
CITY OF ASHLAND: RI 1751: 2718473(8/15/11) LOAN AGREEMENT
OREGON.DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATEP STATE. REVOLVING FUND PAGE24 jjj
(N) COUNTERPARTS. This Loan. Agreement may be executed in any number of
counterparts, each of`which is,deemed.to:bc,an..original, but all together,constitute but, one and the
same instrument.
(O): ENTIRE .AGREEMENT,' AMF,NDMENTS. This Loan Agreement, including all .
appendices and attachments that are by this reference incorporated-herein. constitutes the entire
agreement between the Borrower' and DEQ on the,,subject matter-hereof, and.it'shall,be binding on
the parties thereto when executed by all the parties and'vhen all approvals required: to be obtained.
by DEQ have been obtained. This Loan Agreement, including all related Loan, documents and
instruments, may not be amended; changed; modified'; or altered, without.the written consenvof the
parties.
CITY OF ASHLAND'
I
By 5 ZZ - 1~
Author" Officer Date-
TypedName;:JO1kn r~rr-on,~Pra
Title; r
i
' STATE OF OREGON,ACTING,BY AND THROUGH. ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
Gregory K. 1 ,ch; Water Quality Administrator ate
Approved as to Legal:'Sufticiency by
The Attomey:General's Office
Lynn T. Nagasako,,Senior AAG Date
errun,.1 a~~+~-egal S/a~-f 1nn31I--''
- LOAN AGREEMENT -
CITY or.ASrILA,NO. R 11751 [ 2718473(8/15/11);
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 25
APPENDIX A: REPAYMENT SCHEDULE
BORROWER: City of Ashland ANNUAL INTEREST RATE: 1.00% .
SRF LOAN NO.: R11751 PAYMENTAMOUNT: Variable
LOAN AMOUNT: $ 4,549,691 ANNUAL FEE: 0.50%
Due PAYMENT Principal
Date Pmt# Principal Interest Fees Total Balance
4,549,691
9/1/2015 1 0 .68,600 0 68,600 4,549,691
3/1/2016 2 - 120,494 22,748 22,748 165;990 4,429,197
9/1/2016 3' 121,096 22,146 0 143,242 4,308,101
3/1/2017 4 121,702 21,540 21,540 164,782 4,186,399
9/112017 5 122,310 20,932 0 143,242 4,064,089
.3/112018 6 122,922 20,320 20,320 163,562 3,941,167
9/1/2018 7 123,536 19,706 0 143,242 3,817,631
3/1/2019 8 . 124,153 19,089 19,089 162,331 3,693,478
91112019 9 124,775 18,467 0 143,242 3,568,703
3/112020 10 125,398 17,844. 17,844 161,086 3,443,305
9/112020 11 126,026 17,216 0 143,242 3,317,279
311/2021 12 126,656 _ 16,586 16,586 159,828 3,190,623
911/2021 13 127,289 15,953 0 143,242 3,063,334
3/1/2022 14 127,925 15,317 15,317 .158,559 2,935,409 .
9/1/2022 15 128,565 14,677 0 143,242 2,806,844
3/1/2023 16 129,208 14,034 14,034 157,276 2,677,636
911/2023 17 129,854 13,388 0 143,242 2,547,782
_ 3/1/2024 18 130,503 12,739 12,739 155,981 2,417,279
9/112024 19 131,155 12,087 0 143,242 2,286,124
3/1/2025 20 131,812 11,430 11,430. 154,672 2,154,312
9/1/2025 21 132,470 10,772 0 143,242 - 2,021,842
3/1/2026 .22 133,133 10,109 10,109 153,351 1,888,709
9/1/2026 23 133,799 9,443 0 143,242 1,754,910
3/112027 24 134,467 8,775 8,775 152,017 1,620,443
91112027 25 135,140 8,102 0 143,242 1,485,303
3/112028 26 135,815 7,427 7,427 150,669 1,349,488
911/2028 27 136,494 6,748 0 143,242 1,212,994
3/1/2029 28 137,177 6,065 6,065 149,307 1,075,817
9/1/2029 29 137,863 5,379 0 143,242 937,954
3/1/2030 30 138,545 4,690 4,690 147,925 799,409
9/1/2030 31 78,157 3,997 0. 82,154 721,252
3/1/2031 32 78,548 3,606 3,606 85,760 642,704
9/1/2031 33 - 78,940 3,214 0 82,154 563,764
3/1/2032 34 79,335 2,819 2,819 84,973 484,429
9/1/2032 35 - 79,732 2,422 0 82,154 404,697
3/112033 36 80,131 2,023 2,023 .84,177 324,566
9/1/2033 37 80,531 1,623 0 - 82,154 244,035
3/112034 38 80,934 1,220 1,220 83,374 163,101
9/112034 39 - 81,338 816 0 82,154 81,763
3/1/2035 40 - 81,763 409 409 82,581 0
TOTALS 4,549,691 494,478 218,790 5,262,959 -
REQUIRED LOAN RESERVE: $ 210,174
CITY OF ASHLAND: R11751: 2718473 (8115/11) - LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL: QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 26
APPENDIX B: ESTIMATED CWSRF LOAN DISBURSEMENT SCHEDULE
Loan funds are expected to be available based on the following Project schedule:
4/13 - 6/13: $2,274,845
7/13 - 9/13: $2,274,846
CITY OF AsliL.AND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 27
APPENDIX C: DBE GOOD FAITH EFFORTS
At a minimum the Borrower or its prime contractor must take six affirmative steps (which apply
to any procurement of construction, supplies, equipment or services) to demonstrate good faith
effort to utilize minority (MBE), women-owned (WBE) and small (SBE) businesses. The six
steps are:
1) To include qualified small, minority and women's businesses on solicitation lists;
2) To assure that small, minority, women's businesses are solicited whenever they are potential
sources;
3) To divide total requirements, whenever economically feasible, into smaller tasks or quantities to
permit maximum participation by small, minority or women's businesses;
4) To establish delivery schedules whenever the requirements of the work permit, which will
encourage participation by small, minority and women's businesses;
5) To use the services and assistance of the Small Business Administration (http://pro-net.sba.gov)
and the Office of Minority Business Enterprise of the U.S. Department of Commerce
(http://v wNv.mbdagov) to identify appropriate small, minority and women businesses; and
6) To require subcontractors to take all of the affirmative action steps described above and set forth
in 40 CFR 35.3145(d)) in any contract awards or procurements.
The Borrower shall, and shall cause its contractors to, document compliance with the above
requirements on forms found at Tab 6 of the Manual for Construction Projects.
Additional resources available to recipients and contractors include the following:
EPA Office of Small and Disadvantaged Business Utilization:
Phone: 206 - 553 - 2931
Web Site: www.epa.Qov/osdbu
Oregon Office of Minority, Women and Emerging Small. Business
350 Winter Street N.E., Room 300
Salem, OR 97301-3878
Phone: 503 - 947 - 7922
Web Site: www.cbs.state.or.us/ornwesb
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 28
Appendix D: APPLICABLE FEDERAL AUTHORITIES AND LAWS ("CROSS-CUTTERS")
ENVIRONMENTAL LEGISLATION:
Archaeological and Historic Preservation Act of 1974, PL 93-291
Clean Air Act, 42 U.S.C. 7506(c).
Coastal Barrier Resources Act, 16 U.S.C. 3501, et seq.
Coastal Zone Management Act of 1972, PL 92-583, as amended.
Endangered Species Act 16 U.S.C. 1531, et seq.
Executive Order 11593, Protection and Enhancement of the Cultural Environment.
Executive Order 11988, Floodplain Management.
Executive Order 11990, Protection of Wetlands.
Farmland Protection Policy Act, 7 U.S.C. 4201, et seq.
Fish and Wildlife Coordination Act, PL 85-624, as amended.
National Historic Preservation Act of 1966, PL 89-665,as amended.
Safe Drinking Water Act, Section 1424(e), PL 92-523, as amended.
Wild and Scenic Rivers Act, PL 90-542, as amended.
Federal Water Pollution Control Act Amendments of 1972, PL 92-500.
ECONOMIC LEGISLATION:
Demonstration Cities and Metropolitan Development Act of 1966, PL 89-754, as amended,
Section 306 of the Clean Air Act and Section 508 of the Clean Water Act, including
Executive Order 11738, Administration of the Clean Air Act and the Federal Water
Pollution Control Act With Respect to Federal Contracts, Grants or Loans.
SOCIAL LEGISLATION:
The Age.Discrimination Act of 1975, Pub. L. No. 94-135, 89 Stat. 713, 42 U.S.C. §6102 (1994).
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 252, 42 U.S.C. §2000d (1988).
Section 13 of PL 92-500; Prohibition against Sex Discrimination under the Federal Water Pollution
Control Act.
Rehabilitation Act of 1973, Pub. L. No. 93-1123, 87 Stat. 355,29 U.S.C. §794 (1988), including
Executive Orders 11914 and 11250).
Executive Order 12898, Environmental Justice in Minority Populations
Exec. Order No. 11,246, 30 F.R. 12319 (1965), as amended by Exec. Order No. 11,375, 32 F.R.
14303 (1967), reprinted in 42 U.S.C. §2000e (1994), and its regulations at 41 C.F.R.
§§60-1.1 to 60-999.1.
MISCELLANEOUS AUTHORITY:
Uniform Relocation and Real Property Acquisition Policies Act of 1970, PL 92-646.
Executive Order 12549 and 40 CFR Part 32, Debarment and.Suspension.
Disclosure of Lobbying Activities, Section 1352, Title 31, U.S. Code.
CITY of ASHLAND: RI 1751:2718473 (8/15/11.) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 29
APPENDIX E: DAMS-BACON PROVISION
Part 1
(1) Minimum wages.
(i) All laborers and mechanics employed or working upon the site of the work wilt be paid
unconditionally and not less often than once a week, and without subsequent deduction or rebate
on any account (except such payroll deductions as are permitted by regulations issued by the
Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona
fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not
less than those contained in the wage determination of the Secretary of Labor which is attached
hereto and made a part hereof, regardless of any contractual relationship which may be alleged to
exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section
I (b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also,
regular contributions made or costs incurred for more than a weekly period (but not less often
than quarterly) under plans, funds, or programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such weekly period. Such laborers and
mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination .
for the classification of work actually performed, without regard to skill, except as provided in §
5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein:
Provided, that the employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination (including any additional
classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-
Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at
the site of the work in a prominent and accessible place where it can be easily seen by the
workers.
Subrecipients may obtain wage determinations from the U.S. Department of Labor's web site,
www.dol.gov.
(ii)(A) The subrecipient(s), on behalf of EPA, shall require that any class of laborers or
mechanics, including helpers, which is not listed in the wage determination and which is to be
employed.under the contract shall be classified in conformance with the wage determination. The
State award official shall approve a request for, an additional classification and wage rate and
fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification
in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination.
CrrY OF A$NLAND: R 11751: 2718473(8/15/11) - LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 30 .
(B) If the contractor and the laborers and mechanics to be employed in the classification (if
known), or their representatives, and the subrecipient(s) agree on the classification and wage rate
(including the amount designated for fringe benefits where appropriate), documentation of the
action taken and the request, including the local wage determination shall be sent by the
subrecipient (s) to the State award official. The State award official will transmit the request, to
the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, Washington, DC 20210 and to the EPA DB Regional Coordinator
concurrently. The Administrator, or an authorized representative, will approve, modify, or
disapprove every additional classification request within 30 days of receipt and so advise the
State award official or will notify the State award official within the 30-day period that
additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or
their representatives, and the subrecipient(s) do not agree on the proposed classification and
wage rate (including the amount designated for fringe benefits, where appropriate), the award
official shall refer the request and the local wage determination, including the views of all
interested parties and the recommendation of the State award official, to the Administrator for
determination. The request shall be sent to the EPA DB Regional Coordinator concurrently. The
Administrator, or an authorized representative, will issue a determination within 30 days of
receipt of the request and so advise the contracting officer or will notify the contracting officer,
within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraphs (a)(1)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the
classification under this contract from the first day on which work is performed in the
classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or
mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall
either pay the benefit as stated in the wage determination or shall pay another bona fide fringe
benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor
may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably
anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the
Secretary of Labor has found, upon the written request of the contractor, that the applicable
standards of the. Davis-Bacon Act have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the meeting of obligations under the plan
or program.
(2) Withholding. The subrecipient(s), shall upon written request of the EPA Award Official or an
authorized representative of the Department of Labor, withhold or cause to be withheld from the
contractor under this contract or any other Federal contract with the same prime contractor, or
any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements,
which is held by the same prime contractor, so much of the accrued payments or advances as
may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and
helpers, employed by the contractor or any subcontractor the full amount of wages required by
the contract. In the event of failure to pay any laborer or mechanic, including any apprentice,
trainee, or helper, employed or working on the site of the work, all or part of the wages required
CITY OF Asi iLAND: R 11751: 2718473 (8/15111) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY _
CLEAN WATER STATE REVOLVING FUND PAGE 31
by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or
owner, take such action as may be necessary to cause the suspension of any further payment,
advance, or guarantee of fluids until such violations have ceased.
(3) Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the contractor during the
course of the work and preserved for a period of three years thereafter for all laborers and
mechanics working at the site of the work. Such records shall contain the name, address, and
social security number of each such worker, his or her correct classification, hourly rates of
wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or
cash equivalents thereof of the types described in section l(b)(2)(B) of the Davis-Bacon Act),
daily and weekly number of hours worked, deductions made and actual wages paid. Whenever
the Secretary of Labor has found under 29 CFR 5.5(a)(I)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a
plan or program described in section I(b)(2)(B) of the Davis-Bacon Act, the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable, that
the plan or program is financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and records which show the costs
anticipated or the actual cost incurred in providing such benefits. Contractors employing
apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs, the registration of
the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly, for each week in which any contract work is
performed, a copy of all payrolls to the subrecipient, that is, the entity that receives the sub-grant
or loan from the State capitalization grant recipient. Such documentation shall be available on
request of the State recipient or EPA. As to each payroll copy received, the subrecipient shall
provide written confirmation in a form satisfactory to the State indicating whether or not the
project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent
payroll copies for the specified week. The payrolls shall set out accurately and completely all of
the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social
security numbers and home addresses shall not be included on the weekly payrolls. Instead the
payrolls shall only need to include an individually identifying number for each employee (e.g.,
the last four digits of the employee's social security number). The required weekly payroll
information may be submitted in any form desired. Optional Form WH-347 is available for this
purpose from the Wage and Hour Division Web site at
http://www.dol.pov/esa/whd/foniis/wh347instr.html or its successor site. The prime contractor is
responsible for the submission of copies of payrolls by all subcontractors. Contractors and
subcontractors shall maintain the full social security number and current address of each covered
worker,. and shall provide them upon request to the subrecipient(s) for transmission to the State
or EPA if requested by EPA , the State, the contractor, or the Wage and Hour Division of the
Department of Labor for purposes of an investigation or audit of compliance with prevailing
wage requirements. It is not a violation of this section for a prime contractor to require a
subcontractor to provide addresses and social security numbers to the prime contractor for its
own records, without weekly submission to the subrecipient(s).
I The correct website address is as follows: http / /N'ebapps.dol.gov/libraryforms/FormsByNum.asp
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREDARTr
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND - PAGE 32
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the
contractor or subcontractor or his or her agent who pays or supervises the payment of the persons
employed under the contract and shall certify the following:
(1) That the payroll -for the payroll period contains the information required to be provided under
§ 5.5 (a)(3 )(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained
under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and
complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on
the contract during the payroll period has been paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no deductions have been made either directly or
indirectly from the full wages earned, other than permissible deductions asset forth in
Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and
fringe benefits. or cash equivalents for the classification of work performed, as specified in the
applicable wage determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of
Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of
Compliance" required by paragraph (a)(3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of
title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of
this section available for inspection, copying, or transcription by authorized representatives of
the State, EPA or the Department of Labor, and shall permit such representatives to interview
employees during working hours on the job. If the contractor or subcontractor fails to submit the
required records or to make them available, the Federal agency or State may, after written notice
to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to
submit the required records upon request or to make such records available may be grounds for
debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and trainees--
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the
work they performed when they are employed pursuant to and individually registered in a bona
fide apprenticeship program registered with the U.S. Department of Labor, Employment and
Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or
with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his
or her first 90 days of probationary employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but who has been certified by the
Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship
Agency (where appropriate) to be eligible for probationary employment as an apprentice. The
allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 33
greater t han the ratio permitted to the contractor as to the entire work force under the registered
program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or
otherwise employed as stated above, shall be paid not less than the applicable wage rate on the
wage determination for the classification of work actually perforned. In addition, any apprentice
performing work on the job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage determination for the work
actually performed. Where a contractor is performing construction on a project in a locality other
than that in which its program is registered, the ratios and wage rates (expressed in percentages
of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered
program shall be observed. Every apprentice must be paid at not less than the rate specified in
the registered program for the apprentice's level of progress, expressed as a percentage of the
journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid
fringe benefits in accordance with the provisions of the apprenticeship program. If the
apprenticeship program'does not specify fringe benefits, apprentices must be paid the full
amount of fringe benefits listed on the wage determination for the applicable classification. If the
Administrator determines that a different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that determination. In the event the Office
of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency
recognized by the Office, withdraws approval of an apprenticeship program, the contractor will
no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the
work performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CPR 5.16, trainees will not be permitted to work at less
than the predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal
certification by the U.S. Department of Labor, Employment and Training Administration. The
ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Every trainee must be paid at not .
less than the rate specified in the approved program for the trainee's level of progress, expressed
as a percentage of the journeyman hourly rate specified in the applicable wage determination.
Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If
the trainee program does not mention fringe benefits, trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour
Division determines that there is an apprenticeship program associated with the corresponding
journeyman wage rate on the wage determination which provides for less than full fringe benefits
for. apprentices. Any employee listed on the payroll at a trainee rate who is not registered and
participating in a training plan approved by the Employment and Training Administration shall
be paid not less than the applicable wage rate on the wage determination for the classification of
work actually performed. In addition, any trainee performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. In the. event the Employment
and Training Administration withdraws approval of a training program, the contractor will no
longer be permitted to utilize trainees at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen
under this part shall be in conformity with the equal employment opportunity requirements of
Executive Order 11246, as amended, and 29 CFR part 30.
CITY OF ASHLAND: RI 1751: 2718473 (8/15/11) LOAN AGREEMF_NT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 34
(5) Compliance with Copeland Act requirements. The contractor shall comply with the
requirements of 29. CFR part 3, which are incorporated by reference in this contract.
(6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses
contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the EPA determines may
by appropriate, and also a clause requiring the subcontractors to include these clauses in. any
lower.tier subcontracts. The prime contractor shall be responsible for the compliance by any
subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
(7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be
grounds for termination of the contract, and for debarment as a contractor and a subcontractor as
provided in 29 CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All rulings.and interpretations
of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein
incorporated by reference in this contract.
J
(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of
this contract shall not be subject to the general disputes clause of this contract. Such disputes
shall be resolved in accordance with the procedures of the Department of Labor set forth in 29
CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the
contractor (or any of its subcontractors) and Subrecipient(s), State, EPA, the U.S. Department of
Labor, or the employees or their representatives.
(10) Certification of eligibility.
(i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any
person or firm who has an interest in the contractor's firm is a person or firm ineligible to be
awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR
5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C.
1001.
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMFNT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 35
Part 2
Contract Provision for Contracts in Excess of $100,000.
(a) Contract Work Hours and Safety Standards Act. The subrecipient shall insert the following
clauses set forth in paragraphs (a)(1), (2), (3), and (4) of this section in full in any contract in an
amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours
and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by
Item 3, above or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics
include watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any workweek in which he or she is employed
on such work to work in excess of forty hours in such workweek unless such laborer or mechanic
receives compensation at a rate not less than one and one-half times the basic rate of pay for all
hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the
clause set forth in paragraph (a)(1) of this section the contractor and any subcontractor
responsible therefore shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work done under contract for the
District of Columbia or a territory, to such District or to such territory), for liquidated damages.
Such liquidated damages shall be computed with respect to each individual laborer or mechanic,
including watchmen and guards, employed in violation of the clause set forth in paragraph (a)(1)
of this section, in the sum of $10 for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (a)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The subrecipient shall upon the
request of the EPA Award Official or an authorized representative of the Department of Labor,
shall withhold or cause to be withheld, from any moneys payable on account of work performed
by the contractor or subcontractor under any such contract or any other Federal contract with the
same prime contractor, or any other federally-assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may
be determined to be necessary. to satisfy any liabilities of such contractor or subcontractor for
unpaid wages and liquidated damages as provided in the clause set forth in paragraph (a)(2) of
this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set
forth in paragraph (a)(1) through (4) of this section and also a clause requiring the subcontractors
to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible
for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in
paragraphs (a)(1) through (4) of this section.
(b) In addition to the clauses contained in Item 3, above, in any contract subject only to the
Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in 29
CFR 5.1, the Subrecipient shall insert a clause requiring that the contractor or subcontractor shall
maintain payrolls and basic payroll records during the course of the work and shall preserve
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE RFV+OLV RAG Fla. PAGE 30
them for a period of three years from the completion of the contract for all laborers and
mechanics, including guards and twtchnien, work-in,_- on the contract. Such records shall con?sin
the narne and address of each such employee; social security number, correct classifications,
hourly rates of d•agcsTaid, daily and weckh' r•umbor of hours worked, deductions made. and
actual wages paid Further, the Subrecipient shall insert in any such contract a clause providing
i
hat the records to be maintained under this paragraph shall be made available by the contractor or
subcontractor for inspection, copying, or transcription by authorized representatives of the
Oregon Deparruent of Environmental Quality and the Department of f_abor, and the contractor
or subcontractor will pei'ndt such representatives to interview employees during u•ork_ng hours
on the job.
5. Compliance Verification
(a) The, subrecipient shall periodically interview a sufficient number of employees entitled to
DB prevailing verges (covered employecs) to verify that coniraciors or subcontractors are pa~mg
the appropriate :Yale. rates. As provided in 29 MI 5.6ta;1(6), till intemcws niiist be conducted
in confidence. The subrecipient must use Standard Font. 1445 (SF 1445) or equivalent
documentation to memorialize the intert•iesss. Copies of the SF 14 5 are available from EPA on
request. ,
(b) The subrecipient shall establish and follow an interview schedule based on its assessment of
the risks of noncompliance with Db posed by contractors of subcontractors and the duration of
rite contract or subcontract a TAR urr ffer~ r r p pink slyomft et t tce~ ors-tti t
-mare,a+niutivc~upo#=cc>4civ4i-e~pls-} •:s-i+ttlrtt,-t~ci-vvice;:s-e€-e3c-ln-;-arttsaetzr-~~---- ~~13
-:t hcutt sacta wba von otats-in z al-w~cl ly }}ayrollslata u i tzsa u t lieu to 4;=c-st+ -
a°'°'e" as c rk3e e ittret. Subrecipients must.corduct more frequent
interviews if the initial interviews or other innforniation indicates that there is a risk that the
contractor or subcontractor is not complying with DB . Subrecipienis shall iminediately conduct
necessary interviews in response to at: alleged violation of the prevailing wage requirements. All
interviews shall be conducted in confidence.
(c) The subrecipient shall periodically conduct spot checks of a representative sample of weekly
payroll data to verify that contractors or subcontraclors are payute the appropriate wage rates.
The subrecipient shall establish and follow a spot check schedule based on its assessment of the
risks of noncompliance with DB posed by contractors or subcontractors and the duration of the
contract or subcortract. At a minimum, if practicable, the subrecipient should spot checkpayroll
data within two weeks of each contractor or subcontractor's submission of its i utial pawol! data
and two weeks prior to the completion date the coniact or subcontract.. Subrecipients must
conduct more frequent spot checks if the initial spot check or other inforrnaiion indicates that
there is a risk that the contractor or subcontractor is trot complyingwith DBAn addition, during
the examinations the subrecipient shall verify evidence of fringe benefit plans arid payments
thereunder by contractors and subcontractors _who claim credit for fringe benefit contributions.
(d) The subrecinienrshall periodically review contractors and subcontractors use of apprentices
and trainees to }•eriry registration and c&tificaiion t+iih respect to apprenticeship and training
programs approved by either the U.S Department of Labor or a state, as appropriate; and that
contractors and subcontractors are not using disproportionate numbers of, laborers, trainees and
CtfY OF A.Si:LAND`. RI 1751:2718473 (Si 15i l 1) LD.A1.AGPELINTNT
` OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 37
apprentices. These reviews shall be conducted in accordance with the schedules for spot checks
and interviews described in Item 5(b) and (c) above.
(e) Subrecipients must immediately report potential violations of the DB prevailing wage
requirements to the EPA DB contact listed above and to the appropriate DOL Wage and Hour
District Office listed at htip:HxvAw.dol.gov/esa/contacts/whd/america2.him. 2
2 The correct website address is as follows: http://www.dol.gov/whd/america2.htm#oregon
CITY OF ASHLAND: RI 1751:2718473 (8/15/11) LOAN AGRFEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 38
APPENDix F
EQUAL EMPLOYMENT OPPORTUNITY
During the performance of this contract the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex or national origin. The contractor will take
affirmative action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading,
demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places, available to.
employees and applicants for employment, notices to be provided by the contracting
officer setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive consideration for
employment without regard to race, color, religion, sex or. national origin.
(3) The contractor will send to each labor union or representative of workers with which he
has a collective bargaining agreement or other contract or understanding, a notice to be
provided by the agency contracting officer, advising the labor union or workers'
representative of the contractor's commitments under Section 202 of Executive Order
11246 of September 24, 1965, and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
.(4) The contractor will comply with all. provisions of Executive Order 11246 of September
24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books, records, and accounts
by the contracting agency and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations and orders.
(6) In the event of the contractor's noncompliance with the nondiscrimination clauses of this
contract or with any of such rules, regulations, or orders, this contract may be canceled,
terminated or suspended in whole or in part and the contractor may be declared ineligible
for further Government contracts in accordance with procedures authorized in Executive
Order 11246 of September 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by
rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
Cn'Y OF ASIiLANO: Rl 1751: 2718473 (8115111) LOAN AGREEMENT
OREGON DEPARTMENT OF ENvRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND - PAGE39
(7) The contractor will include the provisions of paragraphs (1) through (7) in every
subcontract or purchase order unless exempted by rules, regulations, or orders of the
Secretary of Labor issued' pursuant to section 204 of Executive Order 11246 of
September 24, 1965, so that such provisions will be binding upon each subcontractor or
vendor. The contractor will take such action with respect to any subcontract or purchase
order as may be directed by the Secretary of Labor as a means of enforcing such
provisions including sanctions for noncompliance: Provided, however, that in the event
the contractor becomes involved in, or is threatened with, litigation with a subcontractor
or vendor as a result of such direction, the contractor may request the United States to
enter into such litigation to protect the interests of the United States.
CrrY OF ASHLAND: RI 1751:2718473 (8/15111) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 40
APPENDIX G: CERTIFICATION REGARDING LOBBYING
(Contracts in Excess of $100,000.00)
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
Borrower, to any person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan or cooperative agreement.
(2) If any funds other than Federal appropriated fiords have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement,
the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to
Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any
person who fails to file the required certification shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such failure.
Signed
Title AA
Date
Recipient
Crry of ASHLAND: RI1751: 2718473 (8/15/11) LOAN AGRFEMENT