HomeMy WebLinkAbout2018-02-06 Council Meeting
CITY OF
ASHLAND
Important: Any citizen may orally address the Council on non-agenda items during the Public Forum. Any citizen may submit written
comments to the Council on any item on the Agenda, unless it is the subject of a public hearing and the record is closed. Time permitting, the
Presiding Officer may allow oral testimony. If you wish to speak, please fill out the Speaker Request form located near the entrance to the Council
Chambers. The chair will recognize you and inform you as to the amount of time allotted to you, if any. The time granted will be dependent to
some extent on the nature of the item under discussion, the number of people who wish to speak, and the length of the agenda.
AGENDA FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
February 6, 2018
Council Chambers
1175 E. Main Street
Note: Items on the Agenda not considered due to time constraints are automatically continued to the next
regularly scheduled Council meeting [AMC 2.04.030.E.]
7:00 p.m. Regular Meeting
1. CALL TO ORDER
II. PLEDGE OF ALLEGIANCE
III. ROLL CALL
IV. MAYOR'S ANNOUNCEMENTS
V. APPROVAL OF MINUTES
1. Executive Session of January 16, 2018
2. Business Meeting of January 16, 2018
VI. SPECIAL PRESENTATIONS & AWARDS
1. Presentation by OHRA on the Ashland job match report and their Strategic
Plan
2. Update from the ad hoc Senior Program Advisory Committee
VII. MINUTES OF BOARDS, COMMISSIONS, AND COMMITTEES
Airport Conservation Forest Lands
Historic Housing and Human Srvs. Parks & Recreation
Planning Public Arts Transportation
Tree Wildfire Mitigation
Vlll. PUBLIC FORUM Business from the audience not included on the agenda.
(Total time allowed for Public Forum is 15 minutes. The Mayor will set time limits to
enable all people wishing to speak to complete their testimony.) [15 minutes maximum]
IX. CONSENT AGENDA
1. Confirmation of Term End Dates for Recent Appointments to the Citizens'
Budget Committee
2. Approval of a resolution titled, "A resolution authorizing and approving a clean
water state revolving fund loan agreement No. R11754," and further
authorizing the City Administrator to sign the loan documents for both the new
loan and to amend the original loan amount
3. Approval of personal services contract for Hersey Street reconstruction
engineering design
4. Approval of contract for professional recruitment services with Springsted
Waters
5. Approval of a public contract award to Evergreen Job & Safety Training, Inc.
for safety training (onsite for Public Works & Electric Utility departments)
X. PUBLIC HEARINGS (Persons wishing to speak are to submit a "speaker request
form" prior to the commencement of the public hearing. Public hearings shall conclude
at 9:00 p.m. and be continued to a future date to be set by the Council, unless the
Council, by a two-thirds vote of those present, extends the hearing(s) until up to 10:30
p.m. at which time the Council shall set a date for continuance and shall proceed with
the balance of the agenda.)
None
XI. UNFINISHED BUSINESS
None
XII. NEW AND MISCELLANEOUS BUSINESS
1. Support for clean energy jobs bill
XIII. ORDINANCES, RESOLUTIONS AND CONTRACTS
1. First reading by title only of an ordinance titled, "An ordinance amending AMC
6.42 to restrict retail sales of tobacco products or inhalant delivery systems to
adults only," and move onto second reading
XIV. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL
LIAISONS
XV. ADJOURNMENT OF BUSINESS MEETING
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this
meeting, please contact the City Administrator's office at (541) 488-6002 (TTY phone number 1-800-735-
2900). Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1).
COUNCIL MEETINGS ARE BROADCAST LIVE ON CHANNEL 9, OR ON CHARTER CABLE
CHANNEL I80. VISIT THE CITY OF AST-ILAND'S WEB SITE AT WWW.ASHI AND.OR.US
i
AGENDA FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
January 16, 2018
Council Chambers
1175 E. Main Street
Note: Items on the Agenda not considered due to time constraints are automatically continued to
the next regularly scheduled Council meeting [AMC 2.04.030.E.]
6:30 p.m. Executive Session for real property transaction pursuant to
ORS 190.660(2)(e)
7:00 p.m. Regular Meeting
1. CALL TO ORDER
Mayor Stromberg called the meeting to order at 7:08 PM
II. PLEDGE OF ALLEGIANCE
III. ROLL CALL
Councilor Slattery, Councilor Lemhouse, Councilor Morris, Councilor Seffinger and
Councilor Rosenthal. Councilor Darrow was absent.
IV. MAYOR'S ANNOUNCEMENTS
V. APPROVAL OF MINUTES
1. Executive Session of January 2, 2018
2. Business Meeting of January 2, 2018
Councilor Seffinger moved to approve the minutes. Councilor Lemhouse seconded.
Discussion: None. All Ayes. Motion passed unanimously.
VI. SPECIAL PRESENTATIONS & AWARDS
1. Introduction of Fire Chief Mike D'Orazi
Interim City Administrator, John Karns introduced Fire Chief, Mr. D'Orazi. Mr. D'Orazi
introduced himself. Mayor Stromberg spoke on behalf on the Council that all are pleased to
welcome Chief D'Orazi.
2. Update from SOU Small Business Development Center
Administrative Services assistant to the Administrator, Adam Hanks introduced Director,
Marshall Doak.
Mr. Doak thanked Council for the sponsorship for Rogue Valley Business Resource Forum. He
spoke that there were 100 participants this year and 25. He spoke that they had 13 speaker
engagements, 15 workshops and a 9-month business development class.
VII. MINUTES OF BOARDS, COMMISSIONS, AND COMMITTEES
Airport Conservation Forest Lands
Historic Housing and Human Srvs. Parks & Recreation
Planning Public Arts Transportation
Tree Wildfire Mitigation
VIII. PUBLIC FORUM Business from the audience not included on the agenda.
(Total time allowed for Public Forum is 15 minutes. The Mayor will set time limits to
enable all people wishing to speak to complete their testimony.) [15 minutes maximum]
Gwen Davies- 860 Harmony Lane, Ashland - Spoke regarding the recall of 3 parks
Commissioners. She read a letter stating comments and concerns (see attached).
Dennis Miller - 725 Terrace Ave., Ashland-Spoke regarding homeless in Ashland. He explained
that he found and organization called Access Resource Center which has been very helpful with
his current move. He spoke regarding the importance of helping the homeless get off the street.
Huelz Gutcheon- 2253 Hwy 99, Ashland - He spoke regarding Council being the complaint
department. He spoke regarding climate change solutions. He suggested that in City limits to set
the speed at 20 MPH.
IX. CONSENT AGENDA
1. Approval of personal services contract for the preliminary engineering of the Ashland
Canal Piping project
Councilor Rosenthal pulled this item. He questioned why Public Works decided to phase it out
and why the need for a public relations firm instead of in-house. Public Works Director, Paula
Brown explained that the Ashland canal is in many yards in the City; since so many they decided
it would be best to phase the project. The firm selected is outstanding for pipeline but not Public
Relations. She explained the importance to get public awareness on this topic and that it cannot
be done in-house. Councilor Rosenthal questioned when the next phase will go forward. Ms.
Brown explained it will be about 12-18 months engineering phase then will move into
construction.
2. Flexible service maintenance agreement with the Oregon Department of
Transportation
3. Southern Oregon Cooperative intergovernmental agreement for materials and services
4. Request for approval of contract addendum with Northwest code professionals
Councilor Slattery pulled this item. He questioned why this project is getting resourced out
instead of working on it in-house. Planning Director, Bill Molnar gave a Staff report. He
explained that the Planning Department has had a lot of turnover in the last 6 months. They
decided to go with a company to keep up with customer service.
5. Approval of a resolution titled, "A resolution of the City Council of the City of
Ashland, Oregon declaring its intention to reimburse expenditures from proceeds of
tax-exempt obligations"
Councilor Slattery pulled this item. Deputy Public Works Director, Scott Fleury gave a Staff
report.
6. Approval of a resolution titled, "A resolution authorizing the investment policy of the
City of Ashland and repealing Resolution 2009-33"
7. Special procurement for Water Treatment Plant filter media replacement and filter
repair
8. Liquor license application for Restaurant Republic, LLC
Councilor Slattery moved to approve the Consent Agenda. Councilor Lemhouse seconded.
Discussion: None. All Ayes. Motion passed unanimously.
X. PUBLIC HEARINGS (Persons wishing to speak are to submit a "speaker request form"
prior to the commencement of the public hearing. Public hearings shall conclude at 9:00
p.m. and be continued to a future date to be set by the Council, unless the Council, by a
two-thirds vote of those present, extends the hearing(s) until up to 10:30 p.m. at which
time the Council shall set a date for continuance and shall proceed with the balance of the
agenda.)
None
XI. UNFINISHED BUSINESS.
None
XIL NEW AND MISCELLANEOUS BUSINESS
1. Infill strategy update and ordinance revisions
Public Works, Maria Harris gave a Staff report.
Ms. Harris discussed the Ashland Transit Triangle Infill Strategies Project. She went over the
importance of this project.
John Fregonese, from Fregonese Associates presented a PowerPoint presentation (see attached).
Mayor Stromberg explained that tonight Council will need to decide whether or not to refer this
to the Planning Commission to start the Ordinance process. City Attorney, Dave Lohman spoke
that no final decision can be made tonight.
Councilor Lemhouse questioned the feedback from the developers. Mr. Fregonese spoke that the
meeting with the developers went well and they gave positive feedback. He spoke that the
Housing Authority also liked the idea of this project. Ms. Harris spoke that the developers
supported the proposed project and gave suggested alternatives to the step backs.
Councilor Seffinger questioned addressing affordable housing for 50 years and older. Mr.
Fregonese explained that all structures will have elevators. Councilor Slattery questioned the
$1200/household. He spoke regarding the vertical housing option. Mayor Stromberg
questioned if there are more than 20 units for development could you use inclusionary zoning.
Mr. Fregonese explained how to include inclusionary zoning. Councilor Morris questioned if
residential subsidizing commercial. Mr. Fregonese answered yes. He explained if they go ahead
with this project they will get all the zoning in order.
Zach Brombacher - 1370 Tolman Creek, Ashland - Spoke as a developer. He spoke to stay with
the zoning that is current. He suggested to not make it mandatory to have the overlay dictate the
developers. He spoke in concern of lack of parking and issues with infill.
Councilor Lemhouse suggested for Staff to respond to Mr. Brombackers concerns and bring back
to Council.
Councilor Lemhouse moved to direct the Planning Commission to initiate Ordinance
revisions to implement the infill strategy for the transit triangle study area. Councilor
Morris seconded. Discussion: Councilor Lemhouse spoke to the importance of moving
forward with this. He spoke that there are still questions to be answered and discussions to
be had. He suggested for Staff to look at financial incentives. Councilor Morris spoke in
support of the motion. Councilor Rosenthal spoke in support of the motion and excitement
for the project. Councilor Slattery spoke that the City has a great Planning Commission
and is excited for the project. Roll Call Vote: Councilor Lemhouse, Councilor Morris,
Councior Slattery, Councilor Rosenthal and Councilor Seffinger: YES. Motion passed
unanimously.
Councilor Lemhouse moved to direct staff to bring incentive programs similar to the
vertical housing incentive program to a future Study Session. Councilor Slattery seconded.
Discussion: Councilor Lemhouse spoke to the importance in looking at all our tools and
incentives for the citizens. Councilor Slattery agreed with Councilor Lemhouse. Roll Call
Vote: Councilor Lemhouse, Councilor Morris, Councilor Slattery, Councilor Rosenthal
and Councilor Seffinger: YES. Motion passed unanimously.
2. Capital Improvements Plan update
Ms. Brown gave an update of Capital Improvement Plan (CIP) projects approved and the status
of other projects. She went over the spreadsheet (see attached). She explained all projects listed
have begun. She suggested to have CIP updates twice a year instead of quarterly.
3. Annual appointments to the Citizens' Budget Committee
Regina Ayers-199 Hillcrest, Ashland- Spoke regarding gender equity on Commissions and
Committees. She encouraged Council to consider gender equity when making the appointments
tonight. She went over percentages of female Commissioners verses male Commissioners.
Councilor Rosenthal spoke he was impressed with the candidate pool.
Council gave a consensus to not have citizens say their address during public forum and to just
fill it out on the speaker request form.
Council did a silent ballot vote (see attached).
Shane Hunter and Pamela Lucas were appointed to the Budget Committee.
XHL ORDINANCES. RESOLUTIONS AND CONTRACTS
None
XIV. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL
LIAISONS
Councilor Slattery thanked the people who put on the Martin Luther King Day Celebration.
Mayor Stromberg spoke to the importance of history.
XV. ADJOURNMENT OF BUSINESS MEETING
The Business Meeting was adjourned at 9:22 PM
Respectfully submitted by:
City Recorder, Melissa Huhtala
Attest:
Mayor Stromberg
In compliance with the Americans with Disabilities Act, ifyou need special assistance to
participate in this meeting, please contact the City Administrator's office at (541) 488-6002 (TTY
phone number 1-800-735-2900). Notification 72 hours prior to the meeting will enable the City
to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104
ADA Title I).
3. Annual appointments to the Citizens' Budget Committee
Regina Ayers-199 Hillcrest, Ashland- Spoke regarding gender equity on Commissions and
Committees. She encouraged Council to consider gender equity when making the appointments
tonight. She went over percentages of female Commissioners verses male Commissioners.
Councilor Rosenthal spoke he was impressed with the candidate pool.
-
Councilor Slattery spoke that he received a suggestion from a Citizen to not state have to state
their address during Public Comment. Council gave consensus to have citizens fill out a speaker
request form with their address but not to give their addresses when speaking just their name and
City.
Council did a silent ballot vote (see attached).
Shane Hunter and Pamela Lucas were appointed to the Budget Committee.
XIII. ORDINANCES, RESOLUTIONS AND CONTRACTS
None
XIV. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL
LIAISONS
Councilor Slattery thanked the people who put on the Martin Luther King Day Celebration.
Mayor Stromberg spoke to the importance of history.
XV. ADJOURNMENT OF BUSINESS MEETING
The Business Meeting was adjourned at 9:08 PM
Respectfully submitted by:
City Recorder, Melissa Huhtala
Attest:
Mayo romberg
In compliance with the Americans with Disabilities Act, if you need special assistance to
participate in this meeting, please contact the City Administrator's office at (541) 488-6002 (TTY
Council Business Meeting
February • 2018
Title: Confirmation of Term End Dates for Recent Appointments to the Citizens'
Budget Committee
From: Melissa Huhtala City Recorder
Melissa.huhtala@ashland.or.us
Summary:
Confirm appointment of Shane Hunter and Pamela Lucas to the Citizens Budget Committee with
4-year terms ending December 31, 2021.
Actions, Options, or Potential Motions:
I move to confirm appointment of Shane Hunter and Pamela Lucas to 4-year terms on the
Citizens' Budget Committee each ending December 3 I st, 2021.
Staff Recommendation:
None.
Resource Requirements:
N/A
Policies, Plans and Goals Supported:
N/A
Background and Additional Information:
The Council appointed Shane Hunter and Pamela Lucas to the Citizens' Budget Committee at
the January 16th Council Business meeting. The end date of their terms were erroneous stated to
be December 31, 2022. Approval of the suggested motion would clarify that Mr. Hunter's and
Ms. Lucas' terms are for a period of four years - as prescribed by statute - and that their terms
end December 31, 2021.
Attachments:
None.
Page Iof I CITY OF
-ASHLAND
Council Business Meeting
February • 2018
Title: A Resolution Authorizing and Approving a Clean Water State Revolving
Fund Loan Agreement No. R11754 and Amendment Number 1 R11751
From: Paula C. Brown, PE Public Works Director
pauIa.brown(d_)ashland. or.us
Summary:
Before Council is a request to approve loan revisions and a resolution authorizing a financing
loan increase of $1,924,589 to a new loan total of $4,829,000, and adjusting the loan's
subsequent re-payment dates. The new loan increases funding to ensure completion of the
Riparian Shading (Temperature Credits) and for design and construction of the Wastewater
Treatment Plant Outfall Relocation project.
This is an ongoing project with the Oregon Department of Environmental Quality (DEQ) Clean
Water State Revolving Fund Loan (CWSRF) that was initially executed on May 21, 2013, and
included all three projects: Membrane Filter Replacement, Riparian Restoration and Outfall
Relocation.
Tonight's Council actions will do two things:
1. Create an entirely new loan agreement (R11754) for $4,829,000 and authorize a
resolution for this financing agreement with the DEQ CWSRF; and
2. Reduce the original DEQ CWSRF loan (R11751) amount from $4,549,691 to $1,645,280
(through amendment 1), and begin repayment of the Membrane Filter Replacement
project.
Actions, Options, or Potential Motions:
Council may move to approve "A Resolution Authorizing and Approving a Clean Water State
Revolving Fund Loan Agreement No. R11754," and further authorize the City Administrator to
sign the loan documents for both the new loan and to amend the original loan amount
(R11751Al).
Should Council not approve these actions, staff recommends Council move forward with these
projects and direct staff to research alternative funding options such as the Oregon Special Public
Works Fund or conventional financing. Both options would likely incur higher interest rates and
repayment costs.
Staff Recommendation:
Staff recommends moving forward with the new loan amount to include approval of the
resolution for the new loan (R11754- Attachment B), and to reduce the original loan (R11751A
- Attachment C and original agreement as Attachment D).
Page 1 of 3 CITY OF
-ASHLAND
Resource Requirements:
These projects are included in the Public Works Wastewater Treatment Plant fund. Total project
costs for the three projects identified in these two loans are as follows:
R11751AI R11754
Membranes: $1,645,280
Riparian Restoration / Shading $2,000,000
Outfall Relocation: $2,829,000
Total: $1,645,280 $4,829,000
The Membrane Filters were replaced in the summer of 2012. The City entered into an agreement
with DEQ to fully finance the membrane replacement and other wastewater projects in the spring
of 2013. Council's action tonight will split the DEQ loan into two portions; one for the
membranes, and the other for the remaining projects. Loan repayment for the membranes is
scheduled to begin in August 2018 and was anticipated in this biennium's budget.
The Riparian Restoration/Shading (water quality temperature credit) project was budgeted for
$1,262,000 for the BN 2017-19 budget years and will remain within that budget. The additional
amount requested is anticipated as future year funds and will be requested during the following
budget cycle (BN 2019-21). The additional amount should enable staff to complete the project.
Prior year funding includes $33,010 for preliminary shading plan options.
The Outfall Relocation project was budgeted at $660,000 for the BN 2017-19 budget years. In
FY17, staff spent $223,000 on the prior Outfall Relocation Study. Council recently approved
(December 5, 2017) the request for the Wastewater Treatment Plant Outfall Relocation
Preliminary Design and Permitting in the amount of $361,231. It is anticipated that final design
could be completed within this budgeted amount. Construction will be phased with approval by
the Department of Environmental Quality with the new discharge permit.
Policies, Plans and Goals Supported:
The projects presented above represent the development and subsequent Council approval of the
2012 Comprehensive Sanitary Sewer Master Plan. The wastewater master plan and recently
completed WWTP Outfall Relocation Study represent the next steps toward meeting the changes
in an anticipated DEQ National Pollutant Discharge Elimination System (NPDES) permit
renewal.
Council Goals:
4. Evaluate real property and facility assets to strategically support city mission and goals.
22. Prepare for the impact of climate change on the community.
Department Goals:
• Maintain existing infrastructure to meet regulatory requirements and minimize life-cycle
costs
• Deliver timely life cycle capital improvement projects
• Maintain and improve infrastructure that enhances the economic vitality of the community
• Evaluate all city infrastructure regarding planning management and financial resources
Page 2 of 3 CITY OF
-ASHLAND
I
BacklZround and Additional Information:
At the Council's regular business meeting on May 21, 2013, Council authorized approval of the
original loan in the amount of $4,549,691 in CWSRF for replacement of membranes, relocation
of the current effluent outfall and riparian shading project. The allocation of the three projects
was:
Membranes: $1,645,280
Shading & Outfall Relocation: $2,904,411
Total: $4,549,691
The loan repayment schedule detailed the first loan payment due in September of 2015. The loan
repayment schedule was constructed to pay back the membrane portion in 15 years, coinciding
with the useful life of the membranes, while the sponsorship option projects are amortized over a
20-year useful life. In addition, a legal counsel opinion was rendered to finalize the loan
documents so that the City could legally enter into the loan agreement and not violate any other
agreement, statute, order or law. The Membrane Filters were replaced in the fall of 2012 and
declared useable during the next membrane cycle in March 2013.
The WWTP Outfall Relocation Study was completed in August 2017. Staff has had numerous
conversations with DEQ as to the status of this study. DEQ has verbally accepted the concept of
the plan to relocate the treatment plant outfall from Ashland Creek to Bear Creek, and continues
to indicate that the relocation will be required under any new permit. DEQ will not formally
"approve" the project until they have completed the renewal of the City's NPDES permit. Staff
anticipates DEQ starting the permit negotiations within the year. DEQ acknowledges the
awkward position the City is in, and has authorized the design process.
The City has two additional CWSRF loans with DEQ:
• R11752 for $9,900,000 for the Oxidation Ditch and pipeline improvements (approved
May 15, 2017)
• R11753 for $1,300,000 for Irrigation Ditch Piping (approved August 1, 2017)
Attachments:
A. Resolution: "A Resolution Authorizing and Approving a Clean Water State Revolving
Fund Loan Agreement No. R11754"
B. Contract: Clean Water State Revolving Fund Loan Agreement No. R11754
C. Contract Amendment: Clean Water State Revolving Fund Loan Agreement No. R11751
Amendment No. 1
D. Original signed agreement R11751
Page 3of3 CITY OF
ASHLAND
RESOLUTION NO. 2018-
A RESOLUTION AUTHORZING AND APPROVING A STATE
REVOLVING FUND LOAN AGREEMENT TO FINANCE WASTEWATER
SYSTEM PROJECTS
RECITALS:
A. The city of Ashland (the "City") has entered into negotiations with the State of Oregon
Department of Environmental Quality (the "DEQ") for a loan to the City from the Clean
Water State Revolving Fund ("CWSRF") in the approximate amount of $4,829,000 for the
purposes of riparian restoration work (temperature credits/shading within the Bear Creek
Watershed) and wastewater treatment plant effluent outfall relocation.
B. The DEQ has provided to the City a proposed CWSRF Loan Agreement (RI 1754).
C. The Interest rate on the proposed loan is 1.00% per annum.
D. The proposed loan is to be fully repaid 20 years after the estimated or actual date of
completion of the project, whichever is earlier.
E. The proposed loan would be secured by the Net Operating Revenues of the City's wastewater
system.
F. Under the proposed loan, the City would pay an annual fee of 0.5% of the Outstanding Loan
Amount, in addition to interest.
G. The proposed loan requires the City to review its wastewater rates and fees at least annually
and to adjust them as necessary to ensure collections sufficient to meet a specified debt
service requirement.
H. The City Attorney and Director of Finance have approved this proposed agreement as to
legal sufficiency and conformance with generally accepted accounting principles.
THE CITY COUNCIL OF THE CITY OF ASHLAND RESOLVES AS FOLLOWS:
SECTION 1. The City does authorize and approve of the form of the SRF Loan Agreement for
the financing of wastewater system projects.
SECTION 2. The City does authorize and approve the establishment and funding of a
designated reserve account to meet the "Loan Reserve" requirement of the SRF Loan
Agreement, and does direct the Director of Finance to establish this loan reserve.
SECTION 3. The City does authorize and approve the Director of Finance and the City
Administrator, acting for and on behalf of the City and without further action by the City
Council, to execute the final DEQ CWSRF Loan Agreement and such other and additional
Resolution No. 2018- Page 1 of 2
documents as may reasonably be required for the consummation and closing of the loan, and any
amendments required thereafter.
This resolution was duly PASSED and ADOPTED this day of
2018, and takes effect upon signing by the Mayor.
Melissa Huhtala, City Recorder
SIGNED and APPROVED this day of 12018.
John Stromberg, Mayor
Reviewed as to form:
David H. Lohman, City Attorney
Resolution No. 2018- Page 2 of 2
CLEAN WATER STATE REVOLVING FUND
LOAN AGREEMENT
No. R11754 .
BETWEEN
THE STATE OF OREGON
ACTING BY AND THROUGH ITS
DEPARTMENT OF ENviRoNMENTAL QUALITY
AND
CITY OF ASHLAND
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 2
TABLE OF CONTENTS
ARTICLE 1: THE LOAN - SPECIFIC TERMS ....................................................................................3
ARTICLE 2: 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 6: 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
APPENDLY B: ESTIMATED CWSRF LOAN DISBURSEMENT SCHEDULE ......................................26
APPENDIX C: DBE GOOD FAITH EFFORTS .................................................................................27
APPENDIX D: RESERVED ..............................................................................................................28
APPENDIX E: DAMS-BACON PROVISION ...............................................................29
APPENDIX F: EQUAL EMPLOYMENT OPPORTUNITY .................................................38
APPENDIX G: CERTIFICATION REGARDING LOBBYING .............................................40
CITY OF ASHLAND: R11754
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. R11754. This loan replaces the Non-Point source portion of
previously allocated and executed in loan R11751.
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: $4,829,000.
(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) PROJECT TITLE: Riparian Restoration (temperature credits/shading) and outfall
relocation.
(F) DESCRIPTION OF THE PROJECT: Phase 1: Riparian restoration work within the Bear
Creek Watershed. Phase II: Effluent outfall relocation.
(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.
(I1) REPAYMENT PERIOD: An interest-only payment shall be made August 1,
2021 and payments thereafter shall be made according to the schedule at Appendix A.
Repayment of amounts owed shall end no later than (a) twenty (20) years after the
Completion Date or (b) twenty (20) 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
payments of principal and interest in accordance with APPENDIX A and ARTICLE 2(F) of this
Agreement.
CrrY OF ASHI.AND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 4
(T) 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.
(I) 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) DISBURSEMENT OF LOAN PROCEEDS.
(1) Proiect 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
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 5
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 retainage 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 as described 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 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
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 6
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 Pa nom. 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 Prepa ice. 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 I(F) ("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.
(I) LATE PAYMENT FEE. The Borrower agrees to pay immediately upon DEQ's
demand a late fee equal to five percent (51/o) of any payment (including any loan fee) that is not
received by DEQ on or before the tenth (10`h) calendar day after such payment is due hereunder.
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 7
(1) TERMINATION OF LOAN AGREEMENT. Upon performance by the Borrower of all of
its obligations under this 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.
ARTICLE 3: GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
(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.
(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
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 the Project, and to carry out and consummate all transactions contemplated by
this Agreement.
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENviRoNMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 8
(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 February 1, 2021. The
Borrower agrees to complete the Project by the estimated Completion Date.
(11) The estimated total Costs of the Project are $4,829,000.
(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;
(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;
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 9
(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 I Ib, Article XI 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
make 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.
ARTICLE 5: 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 funds 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
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 10
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
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
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LOAN AGREENMNT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 11
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(13)(3).
(C) LOAN RESERVE REQiIIREMENT; LOAN RESERVE ACCOUNT.
(1) Loan Reserve Requirement. The Loan reserve requirement equals 100% of
the average annual debt service based on the final repayment schedule. Until the Final Loan
Amount is calculated, the Loan reserve requirement is $223,277. 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 Loan Reserve
Account that shall be held in trust for the benefit of DEQ. The Borrower hereby grants to
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 12
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 amounts 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) INDEMNIFiCATZON. 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 arty 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) THE 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
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.
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 13
(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. Single Audit Requirements. Federal
enabling legislation and applicable regulations require an audit of each CWSRF Loan. 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").
Borrower is a sub-recipient.
(a) Subrecipients receiving federal funds in excess of $750,000 in
the subrecipient's fiscal year are subject to audit conducted in accordance with the
provisions of 2 CFR part 200, subpart F. The Borrower, if subject to this
requirement, shall at its own expense submit to DEQ a copy of, or electronic link
to, its annual audit subject to this requirement covering the funds expended under
this Agreement and shall submit or cause to be submitted to DEQ the annual audit
of any subrecipient(s), contractor(s), or subcontractor(s) of the Borrower
responsible for the financial management of funds received under this Agreement.
(b) Audit costs for audits not required in accordance with 2 CFR part 200,
subpart F are unallowable. If the Borrower did not expend $750,000 or more in
Federal funds in its fiscal year, but contracted with a certified public accountant to
perform an audit, costs for performance of that audit shall not be charged to the
funds received under this Agreement.
(c) The Borrower shall save, protect and hold harmless DEQ from the
cost of any audits or special investigations performed by the Federal awarding
agency or any federal agency with respect to the funds expended under this
Agreement. The Borrower acknowledges and agrees that any audit costs incurred
by Borrower as a result of allegations of fraud, waste or abuse are ineligible for
reimbursement under this or any other agreement between Borrower and the
State of Oregon.
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LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY -
CLEAN WATER STATE REVOLVING FUND PAGE 14
(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
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 carry out 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.
(I) 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.
CrrY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 15
ARTICLE 6: REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS RELATING TO
CONSTRUCTION PROJECTS ONLY
(A) THE BORROWER'S REPRESENTATION AND WARRANTY REGARDING COSTS
ALREADYINCURRED.
(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 $-0-.
(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.
I
(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)
CITY OF ASHLAND: 811754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 16
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.
(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) Project 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.
CITY OF Aslu.Arm: R11754
LOAN AGREEMENT
I
I
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 17
(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.
(2) Retainage. The Borrower shall require a five percent (5%) retainage 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 OF DEQ'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 THE 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.
CITY of ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 18
(C) NONLIAmLrrY 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 determining eligibility 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.
(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;
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 19
(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:
(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 be 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.
CITY OF AsHLANO: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 20
(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 THE 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.
(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) "FACILITY" 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 fiuther 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.
(I) "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.
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 21
(,I) "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.
(I) "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.
(NI) "LOAN AMOUNT" means the maximum amount DEQ agrees to loan the Borrower
hereunder.
(N) "LOAN RESERVE ACCOUNT" means the account described in ARTICLE 5(c)(2).
(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.
(I) "PROJECT" means the facilities, activities or documents described in ARTICLE 1(E)
and (F).
(U) "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.
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 22
(V) "SRFe1 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 party 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
700 NE Multnomah Street, Suite 600
Portland, Oregon 97232
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.
Crrr of ASHLAND: RI 1754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY .
CLEAN WATER STATE REVOLVING FUND PAGE 23
(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 IO(F) shall be null and void.
(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.
(I3) 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.
(1) VALIDITY AND SEVERABILITY; 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.
(J) 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 terms of this Loan Agreement shall not be construed against either party as the
drafter hereof.
(I) 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)
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENviRoNMENTAL QUALITY
CLEAN WATER STATE. REVOLVING FUND PAGE 24
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 I O(Ivl)(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
IOM(3) is also nota 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.
(N) CouNTERPARTs. This Loan Agreement may be executed in any number of
counterparts, each of which is deemed to be an original, but all together constitute but one and the
same instrument.
(O) ENTIRE AGREEMENT; AMENDMENTS. 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 when 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 consent of the
parties.
CITY of ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 25
CITY OF ASHLAND
By:
Authorized Officer Date
Typed Name:
Title:
STATE OF OREGON ACTING BY AND THROUGH ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
By:
Lydia Emer, Operations Division Administrator Date
CITY OF ASHLAND: RI 1754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 26
APPENDEY A: PRELIMINARY REPAYMENT SCHEDULE
Due PAYMENT Principal
Date Pmts Principal Interest Fees Total Balance
4,829,000
8/1/2021 1 0 31,500 0 31,500 4,829,000
2/1/2022 2 112,448 24,145 24,145 160,738 4,716,552
8/1/2022 3 113,010 23,583 0 136,593 4,603,542
2/1/2023 4 113,575 23,018 23,018 159,611 4,489,967
8/1/2023 5 114,143 22,450 0 136,593 4,375,824
2/1/2024 6 114,714 21,879 21,879 158,472 4,261,110
8/1/2024 7 115,287 21,306 0 136,593 4,145,823
2/1/2025 8 115,864 20,729 20,729 157,322 4,029,959
8/1/2025 9 116,443 20,150 0 136,593 3,913,516
2/1/2026 10 117,025 19,568 19,568 156,161 3,796,491
8/112026 11 117,611 18,982 0 136,593 3,678,880
2/1/2027 12 118,199 18,394 18,394 154,987 3,560,681
8/112027 13 118,790 17,803 0 136,593 3,441,891
21112028 14 119,384 17,209 17,209 153,802 3,322,507
811/2028 15 119,980 16,613 0 136,593 3,202,527
2/1/2029 16 120,580 16,013 16,013 152,606 3,081,947
8/1/2029 17 121,183 15,410 0 136,593 2,960,764
2/1/2030 18 121,789 14,804 14,804 151,397 2,838,975
8/1/2030 19 122,398 14,195 0 136,593 2,716,577
2/1/2031 20 123,010 13,583 13,583 150,176 2,593,567
8/1/2031 21 123,625 12,968 0 136,593 2,469,942
2/1/2032 22 124,243 12,350 12,350 148,943 2,345,699
8/1/2032 23 124,865 11,728 0 136,593 2,220,834
2/1/2033 24 125,489 11,104 11,104 147,697 2,095,345
8/1/2033 25 126,116 10,477 0 136,593 1,969,229
2/1/2034 26 126,747 9,846 9,846 146,439 1,842,482
8/1/2034 27 127,381 9,212 0 136,593 1,715,101
2/1/2035 28 128,017 8,576 8,576 145,169 1,587,084
8/1/2035 29 128,658 7,935 0 136,593 1,458,426
2/1/2036 30 129,301 7,292 7,292 143,885 1,329,125
8/1/2036 31 129,947 6,646 0 136,593 1,199,178
2/1/2037 32 130,597 5,996 5,996 142,589 1,068,581
8/1/2037 33 131,250 5,343 0 136,593 937,331
2/1/2038 34 131,906 4,687 4,687 141,280 805,425
8/1/2038 35 132,566 4,027 0 136,593 672,859
211/2039 36 133,229 3,364 3,364 139,957 539,630
8/1/2039 37 133,895 2,698 0 136,593 405,735
2/1/2040 38 134,564 2,029 2,029 138,622 271,171
8/1/2040 39 135,237 1,356 0 136,593 135,934
2/1/2041 40 135,934 680 680 137,294 0
TOTALS 4,829,000 529,648 255,266 5,613,914
CITY OF ASHLAND: RI 1754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 27
APPENDIX B: ESTIMATED CWSRF LOAN DISBURSEMENT SCHEDULE
Loan funds are expected to be available based on the following Project schedule:
1 167,467 5/31/2017
2 332,967 3/1/2018
3 332,967 5/112018
4 332,967 7/1/2018
5 332,967 911/2018
6 332,967 11/1/2018
7 332,967 1/1/2019
8 332,967 3/112019
9 332,967 5/1/2019
10 332;967 7/1/2019
11 ' 332,967 9/1/2019
12 332,967 11/1/2019
13 332,967 1/1/2020
14 332,967 3/112020
15 332,967 5/1/2020
i
CrrY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 28
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://www.mbda.gov) 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.gov/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/omwesb
CITY OF ASHLAND: RI 1754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 29
Appendix D: RESERVED
CITY OF ASHLAND: R1 1754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 30
APPENDIX E: DAVIS-BACON PROVISION
Part 1
(1) Minimum wages.
(i) All laborers and mechanics employed or working upon the site of the work will 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.
CITY of ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 31
(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 ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENvIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 32
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 funds 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 I (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)(1)(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.aov/esa/whd/forms/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).
'The correct website address is as follows: http://webapps.dol.gov/librarvforms/FormsByNum.asp
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 33
(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 as set 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
Crrv OF ASHLAND: RI 1754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 34
greater than 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 performed. 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 CFR 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: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 35
(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.
(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.
CrrY of AsHLAND: R11754
LOAN AGREEvfENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 36
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: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 37
them for a period of three years from the completion of the contract for all laborers and
mechanics, including guards and watchmen, working on the contract. Such records shall contain
the name and address of each such employee, social security number, correct classifications,
hourly rates of wages paid, daily and.weekly number of hours worked, deductions made, and
actual wages paid. Further, the Subrecipient shall insert in any such contract a clause providing
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 Department of Environmental Quality and the Department of Labor, and the contractor
or subcontractor will permit such representatives to interview employees during working hours
on the job.
5. Compliance Verification
(a) The subrecipient shall periodically interview a sufficient number of employees entitled to
DB prevailing wages (covered employees) to verify that contractors or subcontractors are paying
the appropriate wage rates. As provided in 29 CFR 5.6(a)(6), all interviews must be conducted
in confidence. The subrecipient must use Standard Form 1445 (SF 1445) or equivalent
documentation to memorialize the interviews. Copies of the SF 1445 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 or subcontractors and the duration of
the contract or subcontract. At a minimum, the subrecipient should conduct interviews with a
representative group of covered employees within two weeks of each contractor or
subcontractor's submission of its initial weekly payroll data and two weeks prior to the estimated
completion date for the contract or subcontract. Subrecipients must conduct more frequent
interviews if the initial interviews or other information indicates that there is a risk that the
contractor or subcontractor is not complying with DB . Subrecipients shall immediately conduct
necessary interviews in response to an 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 subcontractors are paying 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 subcontract. At a minimum, if practicable, the subrecipient should spot check payroll
data within two weeks of each contractor or subcontractor's submission of its initial payroll data
and two weeks prior to the completion date the contract or subcontract. Subrecipients must
conduct more frequent spot checks if the initial spot check or other information indicates that
there is a risk that the contractor or subcontractor is not complying with DB. In addition, during
the examinations the subrecipient shall verify evidence of fringe benefit plans and payments
thereunder by contractors and subcontractors who claim credit for fringe benefit contributions.
(d) The subrecipient shall periodically review contractors and subcontractors use of apprentices
and trainees to verify registration and certification with 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
Crrr oe ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 38
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 http://www.dol.gov/esa/contacts/whd/america2.htm.2
2 The correct website address is as follows: http://www.dol.gov/whd/america2.htm#oregon
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 39
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.
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 40
(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.
CnY of ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 41
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 funds 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
Date
Recipient
CITY OF ASHLAND: R11754
LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 1
CLEAN WATER STATE REVOLVING FUND
LOAN AGREEMENT NO. R11751
AMENDMENT NO.1
CITY OF ASHLAND
This Amendment No. 1 to Loan Agreement No. R11751 (as amended "Loan Agreement") is
executed between the STATE OF OREGON ACTING BY AND THROUGH ITS DEPARTMENT OF
ENVIRONMENTAL QUALITY (''DEQ") and City of Ashland (the "Borrower"), effective as of the
Effective Date of Amendment indicated below. Capitalized terms used in this Amendment which
are not defined herein shall have the meanings assigned to them in the Loan Agreement.
The purpose of this amendment is to reduce the total loan amount to the amount disbursed
for the Point Source project associated with the borrower's Sponsorship Option loan pair.
Date of Original Agreement: July 16, 2013
Effective Date of Amendment No.: January 8, 2018
The parties agree as follows:
1. ARTICLE 1(C) is amended and restated as follows:
"(C) LOAN AMOUNT: $1,645,280."
2. The second sentence of ARTICLE 5(C)(1) is amended and restated as follows:
"Until the Final Loan Amount is calculated, the Loan Reserve Requirement is
$79,073."
3. The attached "Appendix A: Repayment Schedule" replaces the current "Appendix
A: Repayment Schedule".
Except as expressly amended above, the terms and conditions of the Loan Agreement shall
remain in full force and effect.
CITY OF ASHLAND: R11751 LOAN AGREEMENT AMENDMENT # 1
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 2
CITY OF ASHLAND
By: Date:
Typed Name:
Title:
STATE OF OREGON ACTING BY AND THROUGH ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
By: Date:
Lydia Emer, Administrator
Operations Division
CITY OF ASHLAND: R1 1751 LOAN AGREEMENT AMENDMENT # 1
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 3
APPENDIX A: REPAYMENT SCHEDULE
Due PAYMENT Principal
Date Pmt# Principal Interest Fees Total Balance
1,645,280
8/1/2018 1 0 82,760 0 82,760 1,645,280
2/1/2019 2 52,862 8,226 8,226 69,314 1,592,418
8/1/2019 3 53,126 7,962 0 61,088 1,539,292
2/ 1 /2020 4 53,392 7,696 7,696 68,784 1,485,900
8/1/2020 5 53,658 7,430 0 61,088 1,432,242
2/11/2021 6 53,927 7,161 7,161 68,249 1,378,315
8/ 1 /2021 7 54,196 6,892 0 61,088 1,324,119
2/ 1 /2022 8 54,467 6,621 6,621 67,709 1,269,652
8/1/2022 9 54,740 6,348 0 61,088 1,214,912
2/ 1 /2023 10 55,013 6,075 6,075 67,163 1,159, 899
8/ 1 /2023 11 55,289 5,799 0 61,088 1,104, 610
2/ 1 /2024 12 55,565 5,523 5,523 66,611 1,049,045
8/ 1 /2024 13 55,843 5,245 0 61,088 993,202
2/ 1 /2025 14 56,122 4,966 4,966 66,054 937,080
8/ 1 /2025 15 56,403 4,685 0 61,088 880,677
2/ 1 /2026 16 56,685 4,403 4,403 65,491 823,992
8/ 1 /2026 17 56,968 4,120 0 61,088 767,024
2/ 1 /2027 18 57,253 3,835 3,835 64,923 709,771
8/ 1 /2027 19 57,539 3,549 0 61,088 652,232
2/ 1 /2028 20 57,827 3,261 3,261 64,349 594,405
8/ 1 /2028 21 58,116 2,972 0 61,088 536,289
2/ 1 /2029 22 58,407 2,681 2,681 63,769 477,882
8/ 1 /2029 23 58,699 2,389 0 61,088 419,183
2/ 1 /2030 24 58,992 2,096 2,096 63,184 360,191
8/ 1 /2030 25 59,287 1,801 0 61,088 300,904
2/ 1 /2031 26 59,583 1,505 1,505 62,593 241,321
8/1/2031 27 59,881 1,207 0 61,088 181,440
2/ 1 /2032 28 60,181 907 907 61,995 121,259
8/ 1 /2032 29 60,482 606 0 61,088 60,777
2/ 1 /2033 30 60,777 304 304 61,385 0
1,645,280 209,025 65,260 1,919,565
CITY OF ASHLAND: R 11751 LOAN AGREEMENT AMENDMENT 1
CLEAN WATER STATE REVOLVING FUND
LOAN AGREEMENT
NO- 811751
BETWEEN
THE STATE OF OREGON
ACTING BY AND THROUGH ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
AND
CTTY OF ASHLAND
e
OREGONDEPARTMENTOF 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 RE PRESENTATIONS, WARRANTIES AND COVENANTS ................................7
ARTICLE 4: CONDITIONS TO LOAN ......................................................................_........................8
- ARTICLE 5: COVENANTS OF BORROWER ..:.............................................................10 .
ARTICLE 6: REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS RELATINGTO
' CONSTRUCTION PROJECTS ONLY 14
ARTICLE 7: DisCLAIMER5 BY DEQ; LIMITATIONS ON DEQ'S LIABILITY
ARTICLE 8: DEFAULTANDRomDIES ..........................................................................................18
ARTICLE 9: DEFINITIONS 19
.ARTICLE 10: MISCELLANEOUS 21
APPENDIX A: REPAYMENTSCHEDULE 25
APPENDDIB: ESTIMATED CWSRFLOAN DISBURSEMENTSCHEDULE .....................................26
APPENDIX C: DBE GOOD FAITH EFFORTS .................................................................................27
APPENDIXD: APPLICABLE FEDERALAUTHORITIES AND LAWS ("CROSS-CUTTERS^)............ 28
APPENDIX E: DAVIS-BACON PROVISION .......................................................:.......29
APPENDIX F: EQUAL EMPLOYMENT OPPORTUNITY .................................................38
APPENDIX G: CERTMCATI ON REGARDING LOBBYING .............................40
CITY OF ASHLAND: 811751:2718473 (8/15/11) 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. R11751.
DEQ agrees to make, and Borrower agrees to accept, the Loan on the terms and subject to the
conditions set forth below.
ARTICLE I: 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) PROJECT TITLE: Wastewater Membrane System Upgrade.
(1(+) 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°/x) 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.
(1) 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
CITY OF ASHLAND: R11751: 2718473 (8115111) LoAN AGREPNENr
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.
(J) 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 287A310. 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 apledge 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 aparity 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.
(Is) ANNUAL.1[~ EE: 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 APPENDrx B with an updated APPENDix B which is dated and signed by both parties.
(C) DISBURSEMENT OF LOAN PROCEEDS.
CrrY OF AsIii- AND: RI 1751:2719473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 5
(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 retainage 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 as described in ARTICLE 1(I) and ARTICLE 2(F) in U.S. Dollars in
immediately available funds at the place listed for DEQ in ARTICLE I O(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 REPAYDIENT.
(1) Preliminary Repayment Schedule; Interim Pa ments. 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 Repyment Schedule. After the Borrower has submitted.its final
request for Loan proceeds and DEQ has made all required disbursements hereunder, DEQ
CITY OF ASHLAND: 811751: 2718473 (8115/11) 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 detenmine, 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.
(S) 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 I (F) ("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: R11751: 2718473 (8/15/11) THAN AGRF-FK4ENT
'
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLyING FUND PAGE 7
(II) 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`~ calendar day after such payment is due hereunder.
(1) TERMINATION OF LOAN AGREEMENT. Upon performance by the Borrower of all 'I
of its obligations under this 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.
ARTICLE 3: GENERAL REPRESHNTATTONS, WARRANTIES AND COVENANTS'
(A) ' REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and v,-anants to DEQ that:
(1) It is a duly formed and existing public agency (as defined in ORS
463.423 (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 lierfomted
.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 ptoperties 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 hereuhder, 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.
(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
CrIYOF ASHLAND: RI 1751:2718473 (8/15111) LOAN AGREEmENT
OREGON DEPARTMENT OF ENVIRONMENTAL 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 the 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 Laan 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;
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.(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 dne 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 X1 of the Oregon Constitution; and
(5) such other documents, certificates, opinions and information as DEQ or its
counsel may reasonably require:
(B) CONDITIONS To DISBURSE, MENTS. 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 make 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.
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ARTICLE 5:. 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 funds 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 maybe withheld for any reason. Upon gale, 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 ofthis 'Loan Agreement, or as soon
thereafter as practicable, the Borrower.shaE 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 thc'Wfter 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
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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; WAS'TE'WATER 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(13)(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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(C) LOAN RESERVEREQvmEmENT;LOAN RESERVEA000UNT.
(1) Loan Reserve Reduirement. 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 hereurider.
(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 iri 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 wan-ants 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. amounts 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) IrvnEARYMCA770N. The Borrower shall, to the extent permitted by law and the
Oregon Constitution, indemn 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 afters, employees,
subcontractors or agents in regard to this Agreement or the Project.
(F) THE BORRowicWs FINANCIAL RECORDS; FINANCIAL REPORTING
REQUIREMENTS.
(1) . Financial Records. The Borrower shall keep proper and complete books
of record and account and maintain al] fiscal records related to this Agreement, the
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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 Pro ject 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 finding; 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) ' Siriele 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'x. 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 FAmu 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
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OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY .
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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 resultin 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.
(It) 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) THE 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 incun'ed by the Borrower for
construction, do not exceed $-1,645,280-.
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OREGON DEPARTMENT OF ENVIRONWENTAL QUALITY
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(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.
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(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 (501/6)
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 (901/o) 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 tern 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
FORTREPROJECT
(t) 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 ITrorkl• Projects in Oregon established under
ORS 27k.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
AFPENDiX E as applicable.
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OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REvoLVrNG FUND PAGE 17 . .
(2) Retainaae. The Borrower shall require a five percent (5%) retainage in all of
its contracts related to the Project for an amount greater than One Hundred Thousand
Dollars ($100,000).
ARTICLE 7: DiscLAIMEns BY DEQ, LLUnTATION OF DEQ's LIABILITY
(A) DIscLAnm 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 THE EXTENT AND STAGE OF
COMPLETION OF THE PROJECT. No such warranty or guarantee shall be implied by virtue of
any inspection of disbursement made by DEQ. Any inspection done by DEQ shall be for its sole
benefit.
(B) DISCLAIMER OF LIABILITY oFDEQ. 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 BYTHE 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 determining eligibility 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.
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(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: DEFAULTANDRExamms '
(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 -
banlmTtcy, 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) REMEwEs. If DEQ determines that an Event of Default has occurred, DEQ may,
without further notice:
Cr Y OF ASHLAND: 811751:27 L8473 (8/15111) LOAN AGREEhEM
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 BorroweV's expense, to operate the Facility that
produces-the pledged revenues and collect the Gross Revenues;
(4) Set and collect utility rates and charges;.
(S) 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 shali 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 dernand, 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 be 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 DAT&" 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) "Cosrs OF THE PRDJECT" 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 lab6r 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 or ASHLAND: R11751:2718473 (8115/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 20
(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
(S) Any other costs approved in writing by DEQ.
(D) "CWSRF PROGRAM" or "0VSRF" 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) "FACILITI1" means all property owned or used by the Borrower to provide
wastewater collection, treatment- and disposal services, of which the Project is apart.
(H) "ANAL 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.
(T) "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.
(J) "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 Superfimd Amendments and Reauthorization Act (42 U.S.C. Section 9641, 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.
(l({) "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.
(N) "LOAN RESERVE ACCouNT" means the account described in ARTICLE 5(c)(2).
My oh AstiLAND: R11751:.2718473 (8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND 1 AGE, 21 .
(0) "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 REvFNUEs" 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
atu-ibutable 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 bereunder'less the sum of all Loan principal payments received by
DEQ.
(T) "PROXECT" means the facilities, activities or documents described in ARTICLE
1(E) and (F).
(U) "REPAYMENT PERIOA" means the repayment period ending on the date specified in
ARTICLE 1(Il) which date shall not in any event be later than twenty (20) years after the
Completion Date.
(V) "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 party 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: 811751: 2718473 (8/15/11) LOAN AGRE[i&E-Nr
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 22
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 ci
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 tbis 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 EssENCR, The Borrower agrees that time is of the essence under
this Loan Agreement.
(D) RELATIONSHIP OF PARTIFs. 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 df this Loan Agreement.
(L+') O THIRD PARTY BENEFICIARIES. DEQ and the Borrower are the only parties to
N
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.
(6) 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 Agreemeht upon written notice to the Borrower. Provisions of Us 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.
Crrr of ASHLAND: 111 1711:2719471 (8115111) LOAN AoREEMENT
OREGON DFPARTMENT OF ENVIRONMENTAL QUALITY '
CLEAN WATER STATF RsV OLVMG 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.
(1) 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 parry, 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 Phis Agreement which by its nature or terms is
intended to survive termination, including but not limited to ARTICLE 5(E), shall survive
temnination of this Agreement.
(J) 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 terms of this Loan Agreement shall not be construed against either party as the
drafter hereof.
(IC) 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
attomeys' fees and costs, to the extent permitted bylaw:
(NI) CHOICEOFLAw;DEsIGNAnoNoFFORUMI.FEDERALFORUn4.
(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 OM(2), if a claim must be brought in a federal forum,
then it•musl be brought and adjudicated solely and exclusivelywithin the United States District
Court for the District of Oregon. This ARTICLE 10(K(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 (8115111) LOAN AOReu&w
i
OREGON DEPARTMENT OF EN V IRONWNTA L QUALITY
CLEAN INTATER STATE REVOLVrNO-FUND - PACE 24 -
(N) CouNTERPARTs_ This Lean Agreement may be executed 'in' any number of
counterpaits, each of which is deemed to be an origirial, but all together constitute but one and the
same instrument.
(4) ENTIRE L CI2EEMZ NT; Ari tvD~aENTS. 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- when 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 consent of the
parties.
i
CITY Of ASHLAND
r/
By:
Authoiz~ld Officer Date
TypedName: .
Title:
STATE OF OREGON ACTING BY AND Ti ROUGH YTS
I)F.PARTN ENT OF EWI RON MENTAL QUALITY
By.
Gregory K. Aldrich, Water QualityAdministrator. Date
Approyed as to Legal Sufficiency by
The Attorney General's Office
Lynn T. Nagasako,. Senior AAG- Date
CrrY bF Asi- A oU Rl 1751: 2715473 (8115/11) LOAN AGREEMEN-r
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`/0 .
SRF LOAN NO.: R11751 PAYMENTAMOUNT: Variable
LOAN AMOUNT: $ 4,549 691 ANNUAL FEE: 0.50`/0
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
3/112017 4 121,702 21,540 21,540 164,782 4,186,399
9/1/2017 5 122,310 20,932 0 143,242 4,064,089
. 3/1/2018 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
911/2019 9 124,775 '18,467 0 143,242 3,568,703
31112020 10 125,398 17,844 17,844 161,086 3,443,305
9/1/2020 11 126,026- 17,216 0 143,242 3,317,279
3/112021 12 126,656 16,586 16,586 159,828 3,190,623
9/112021 13 127,289 15,953 0 143,242 3,063,334
31112022 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
9/1/2023 17 129,854 13,388 0 143,242 " 2,547,782
311/2024 18 130,503 12,739 12,739 155,981 2,417,279
911/2024 '19 131,155 12,087 0 143,242 2,285,124
31112025 20 131,812 11,430 11,430 154,672 2,154,312
91112025 21 132,470 10,772 0 143,242 2,021,842 .
311/2026 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
311/2027 24 134,487 8,775 8,775 152,017 1,620,443
911/2027 25 135,140 8,102 0 143,242 1,486,303
31IM28 26 135,815 7,427' 7,427 150,669 1,349,488
911/2028 27 138,494 6,748 0 143,242 1,212,994
31112029. 28 137,177 6,065 8,065 149,307 1,075,817
911/2029 29 137,863 5,379 0 143,242 937,954
3/1/2030 30 138,545 4,690 4,690 147,925 799,409
9/112030 31 78,157 3,997: 0. 82,154 721,252
311/2031 32 78,548 3,606 3,606 85,760 642,764
911/2031 33 78,940 3,214 0 82,154 563,764
3/112032 34 79;335 2,819 2,819 84,973 484,429
91112032 35 79,732 2,422 0 82,154 404,697
3/1/2033 36 80,131 2,023 2,023 .84,177 324,566
911/2033 37 80,531 1,623 0 - 82,154 244,035
3/112034 38 80,934 1,220 1,220 83,374 163:101
911/2034 39 81,338 816 0 82,154 81,763 .
311/2035 40 81,763 409 409 82,581 0
TOTALS 4 549 691 494,478 218,790 5,262 959
REQUIRED LOAN RESERVE: $ 210,174
CITYYoFASHLAND:RI 1751:2718473(8115/11) LOAN AOFEEME r
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE26
APPENDIXB: F.SnMATEDCWSRFLOANDISBURSEMENTSCHEDULE
Loan funds are expected to be available based on the following Project schedule:
4/13 - 6/13:$2,274,W
7/13 - 9/13: $2,274,846
I
r
Crtv OF Astau tiD: R11751: 2718473 (8/15111) LOAN AGREEM24T
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 27
APPENDIX C: DBE Goon FAIT$ 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
pennit 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://pto-net.sba.gov)
and the Office of Minority Business Enterprise of the U.S. Department of Commerce
(http://www.mbda.gov) 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 - 5 5 3 - 2931
Web Site: wNw.epa.gov/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/omwesb
CrPY or ASHLAND: R11751: 2718473 (8/15/11) LOAN AGREEMENT
OREGON. DEPARTMENT OF ENVIRONMENTAL QUALITY '
CLEAN WATER STATE REVOLVING FUND PAGE28
Appendix D: APPLICABLE FEDERAL. AuTHORIT m 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 f 1990, Protection of Wetlands.
Faunland 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 ()994), and it regulations at 41 C.F.R
§§60-1.1 to 60-999.1.
MISCELLANEOUS AvrHORrrY:
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.
Clrr of ASELAND: R11751:2719473(8/15/11) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 29
APPENDIX E: DA`PIs-BACON PROVISION
Part 1
(1) Min imurn wages.
(i) All laborers and mechanics employed or working upon the site of the work will 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
1(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.
Cn'r OF Asii AND: R11751: 2718473 (8/15111) LOANAGxE&ivfEwr
OREGON DEPARTMENT OF ENVIRONMENTAL QUALrry
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 ofEcial'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
wane 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)(l)(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 Ede 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 ofthe 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
Crrv OF AsiiLANn: R11751: 2718473 (8/15/11) LOAN AGRFSmi!t\rr
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 funds 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 1(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)(1)(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 l(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 CPR 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://w-,,vw.dol.gov/esa/whd(fon-ns/Nvh347instr.htiail or its successor site. The prince 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).
1 The correct website address is as foUows: httL?://,A,ebUps.dol.gov/`libMforms/FC=ByN-um.asp
CrrY or ASHLAND: R11751: 2718473 (8115111) LOAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE Rlivuvrm 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 as set 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 subj tet 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 Depattment.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
CrfY OF ASHLAND: Rl 1751: 2718473 (8/15/11) LOAN AGREaAcNT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE RE VOLVL*!O FUND PADS 33
greater than 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 performed. 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 ofprogress, 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 fall
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 CFR 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 bas 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 fu11 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.appreatices, 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 anacceptable program is approved.
(iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen
under this part shall be in conforinity with the equal employment opportunity requirements of
Executive Order 11246, as amended, and 29 CFR part 30.
CITY OF ASHLAND: R11751: 2718473 (8/15/11) LOAN AouEmENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 34
(5) Compliancewith 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.
'
(S) 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
(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
Governmenf contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for malting false statements is prescribed in the U.S. Criminal Code, IS U.S.C:
1001.
CTYOF ASHLAND: R11751: 2718473 (9/15/11) LOANMREEMENT
OREGON DEPARTMENT TT 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
arnount in excess of $100,000 and subject to the overtb-ne 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
Cry or MHLAND: 811751: 2718473 (8115111) LOAN AGRPEm NT
URfiGO\DEP.AR_rM&-, rCAFi\wmONMETTAL.QUALITY
CLEAN 1'JATER STATE REVOLVING FL? D PAGE 36
them for a l;zriod of three years from the completion of the cowunct for all laborers and
mechanics, including: guards and ttatChn2eI1_ working on the contmci_ Such, records sliall comaln
the narle vind address of each such employee, social sec-urit-v number, correct chassi ticatious,
rtouTly fates of Nvages:.paid, dally and %veclk i> nuinbc.I of hours wori`cd, dedUCtiun, n7adc; and
actual .wages paid. Further, the Subre.cipient shall inser, in any such contract a clause providing
hat the records to be maintwined tinder this paragraph shall be inade available by the contractor or
sabccm tractor for iispection, copying, pr transcription b authorized representatives of the
Ore!.on Department of EnvlronrnenL-d Quality and the Department of Labor, and the contractor
or subcontractor :vill pertnit such repre sentmives to irten'ievv employees auringr t~Url rig hours
on the Job.
5. eompli. nce 'Verification
(are The. subrecipie;it shall pe.riodicalty inlerview a sufficient number of employees entitled to
DB prCvuilin Nvages (cohered employees) tcl verity- that contractors or subcoilirac*-ors are payma
(l'ic appropriate Naugle rates. As provided in 29 C_F P _5.6(a )i 6 all iniervinvs mu_it be conducted
in continence.. The stibYe-c.ipi(nlt mast Use Standard Torn; 1.44f• (SF 144-5) or equivalent
doctimentaiion to me7rnonallze the interN-ietivs, Copies of the SF 1445 are available E-om EP on
request..
(b) The subrecipient shall establish and c,ilow an interview schedule based on its a-ssessmeni of
the risks of rionc.orliolialicc vtilh DB posed by cmitraetors of 5nbconti-actors and the duration of
rile contract or subcontract. =ri tir-,--r , stl :pien.t slier= me at-trrt~E'~~s I- ~ y-eo';~N ti aCrEl~ p of Go`. ~4 C--.Pj0,''e -%44}kliiii4we ivt e4r
iii c?el- • c n;r'aGier' r, ~yZ~t3
-Sll bGC3t1t 3C i3r= tiS d s? S1b1A 3t4ts r ° \Ee l? } r41 ~_lrt~ LA 2 ~ 3 s1?r t~? E ?ti
. i^*;. , a•. =a . tr,ci-E~F Sabrecipients must conduct inore frequent
inter tic•,;•s if the initial int nie~i`s or other information indicates that tHere is a risk tliat.the
coniractor or subcontractor is not complying ttith DB , Subrecipients shall inuuediately conduct
necessary inter. ieEi`s in response to an alleged violation of t11e prevailing wage requirements. All
inters ie%vs sh4ll bt; cuP_ducled in confidence.
(c) The st)Crecipient shall periodically conduct spot chec -,s of -a repremitative sample of weeldy
payroll daia to verify that contractors or subcontraclors are paying the appropriate wage rates.
Thi subrecipient shall establish and follow- a spot checl schedule based on its assessment of the
nslis of noncompliance )Ayitb DB posed by contractors or subcontractors and.the duration of tlw
contract br subcontract. At a minirnuni, if practicable, the subrecipient should spot check payroll
data within tNvo weeks of each contractor or subcortractbr's submission of.its irdtial pa;.roll daia
and vo weeks print to the completion date the contract or subcontract., Surreciplcmts must.
conduct more frequent spot checks if the initial spot check or other information indicates that
there is a risk that the COntraCtOr GE 5131)COJItractor is rlot.cdnipl ing.,1\ ith DI .Au addition, duritlo
the t_xaminadons the subrcc.ipient shall verify evidence of himyt benefit plans and payments
thereunder by contractors and subcontractors who claim credit f6r fringe benefit coiitributions.
id) The subrecipi.em shall ,-vriodicalINs review contractors aria subcontractors use of apprentices
and trainees To verif;' registration incl. certicaiion With respect to apprenti whip and mining
prograill.s approved by eitlier the US Deparinnem of Labor or a sift e.. as appropriate, acid that
COritraciors and subcontractors are not using d15pTLpvrill~IlatP IlIlrlherS Of_. la'orers, trainees and
CifY:?FP, HihNU:Rl1751:??1ST3(a 1511) LtI.;N:A.GP.EZ1 FEINT
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 tho appropriate DOL Wage and Hour
District Office listed at http?//www dol uov/esa/rontacts/whd/arnerica2.htnL2
2' The correct website address is as follows: http://www.doLgov/whd/`auielica2.htm#oregon
CrN OF AsliLMD: 811751:2718473 (8115111) LOAN AoREF?dENT
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 38
APPENDIX F
EQUAL EMPLOYIMENT OPPORTUNPI'Y
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
affirruative 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
contractor with'any of such rules, regulations, or orders, this contract maybe 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.
CF FY OF AsHLANO: R11751: 2718473 (8/15/11) LOAN AGREEmEN'I'
OREGON DEPARTMENT of ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 39
(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: R11751:2718473 (8/15/11) IRAN AGREEMENT
OREGON DEPARTMENT OF ENVIRONMENTAL. QUALITY
CLEAN WATER STATE REVOLVING FUND PAGE 4O
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 funds 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
J
Date
Recipient
CITY or ASHLAND: RI 1751: 2718473 (8/15/11) L.oAN AGREEMENT
Council Business Meeting
February 6, 201EV
Title: Approval of Personal Services Contract for Hersey Street Reconstruction
Engineering Design
From: Scott A. Fleury Deputy Public Works Director
scott.fleuryCaD-ashland. or.us
Summary:
Before Council is a personal services contract for professional engineering and design services
for the Hersey Street Reconstruction Project with OBEC Consulting Engineering. This project
was released through an open request for qualifications (RFQ) based proposals. OBEC was
selected as the best qualified among two proposers. The project has three distinct phases;
preliminary design and permitting; final design and bidding; and construction services. Staff has
negotiated the scope of work with OBEC for phase one and two, preliminary design and
permitting, and final design and bidding services and concurs with the costs for these services.
The construction administration portion will be negotiated upon completion of the final design
and award of bid to a construction contractor.
Actions, Options, or Potential Motions:
Council has the option to approve this contract or refer staff back for a new request for proposals.
Potential motions include:
1. Move approval of a contract for professional engineering and design services with OBEC
Consulting Engineers Inc. for the Hersey Street Reconstruction Project
2. Direct staff to reconsider a new solicitation for the Hersey Street Reconstruction Project
Staff Recommendation:
Staff recommends approval of the personal services contract for professional engineering and
design services for the Hersey Street Reconstruction Project for $627,525 ($490,000 and
contingency tasks in the amount of $137,525). Contingency tasks are associated with right-of-
way acquisition and additional environmental support. if needed, to finalize project engineering.
Resource Requirements:
The 2017-19 Street Division Biennium Budget includes funds for contracted services (Capital
Improvement Program) in the amount of $4,000,000 for this project. Revenues for this project
come directly from the re-apportionment of food and beverage tax monies into the Street Fund.
Policies, Plans and Goals Supported:
City Council:
2.1 Engage community in a conversation about core services, desired service levels and
funding mechanisms
21. be proactive in using best practices in infrastructure management and modernization
22. Prepare for the impact of climate change on the community.
Page 1 of 2 CITY OF
-ASHLAND
Department Goals:
• Maintain existing infrastructure to meet regulatory requirements and minimize life-cycle
costs
• Deliver timely life cycle capital improvement projects
• Maintain and improve infrastructure that enhances the economic vitality of the
community
• Evaluate all city infrastructure regarding planning management and financial resources
Backl4round and Additional Information:
Staff advertised the Hersey Street roadway rehabilitation project RFQ on September 12, 2017,
statewide, on the ORPIN site, in the Mail Tribune, and on the City's website. Two proposals
were received on October 26, 2017. Five city staff members independently graded each proposal
with the criteria developed for the RFQ. OBEC Consulting Engineers, Inc. scored the highest.
Staff subsequently sent a letter of intent to negotiate with OBEC on November 9, 2017. OBEC
has met with staff to finalize the scope of work and cost proposal. They submitted a final scope
and fee proposal on January 24th which has been reviewed and approved by staff. Staff provided
an email notice of intent to award to OBEC on January 25, 2018 conditioned on Council
approval at the February 6, 2018. Staff expects construction to begin on the project in spring of
2019.
Next Steps:
If approved, staff will execute the contract and initiate a project kick off meeting with OBEC.
Attachments:
Personal Services Contract between the City and OBEC Engineering for $627,525 for, the
Hersey Street Reconstruction Project which includes OBEC's Scope of work and costing
breakdown.
Page 2of2 CITY OF
ASHLAND
Contract for Personal Services
•ZONSULTANT: OBEC Consulting Engineers
CITY OF
ASHLAND CONTACT: Jaime Jordan P.E.
20 East Main Street ADDRESS: 831 O'Hare Parkway
Ashland, Oregon 97520 Medford, OR 97504
Telephone: 541/488-6002 TELEPHONE: 541-774-5590
Fax: 5411488-5311
EMAIL: Jjordan@obec.com
EFFECTIVE DATE: COMPLETION DATE: 6/30/2019
COMPENSATION: Not to Exceed (NTE) 627,525.00 as defined in Exhibit C.
SERVICES TO BE PROVIDED: Preliminary and Final Design Services for the Hersey St. reconstruction as
defined in Exhibit C.
ADDITIONAL TERMS: None.
In the event of a conflict or discrepancy among the contract documents, this City of Ashland Contract for Personal Services will be primary and take
precedence, and any exhibits or ancillary agreements having redundant or contrary provisions will be subordinate to and interpreted in a manner that
will not conflict with the said primal. City of Ashland Contract.
FINDINGS:
Pursuant to AMC 2.50.120, after reasonable inquiry and evaluation, the undersigned Department Head finds and
determines that: (1) the services to be acquired are personal services; (2) the City does not have adequate personnel nor
resources to perform the services; (3) the statement of work represents the department's plan for utilization of such
personal services; (4) the undersigned consultant has specialized experience, education, training and capability sufficient
to perform the quality, quantity and type of work requested in the scope of work within the time and financial constraints
provided; (5) the consultant's proposal will best serve the needs of the City; and (6) the compensation negotiated herein
is fair and reasonable.
NOW THEREFORE, in consideration of the mutual covenants contained herein the CITY AND CONSULTANT AGREE as
follows:
1. Findings / Recitations. The findings and recitations set forth above are true and correct and are incorporated herein
by this reference.
2. All Costs by Consultant: Consultant shall, at its own risk and expense, perform the personal services described
above and, unless otherwise specified, furnish all labor, equipment and materials required for the proper performance
of such service.
3. Qualified Work: Consultant has represented, and by entering into this contract now represents, that all personnel
assigned to the work required under this contract are fully qualified to perform the service to which they will be
assigned in a skilled and worker-like manner and, if required to be registered, licensed or bonded by the State of
Oregon, are so registered, licensed and bonded.
4. Completion Date: Consultant shall start performing the service under this contract by the beginning date indicated
above and complete the service by the completion date indicated above.
5. Compensation: City shall pay Consultant for service performed, including costs and expenses, the sum specified
above. Payments shall be made within 30 days of the date of the invoice. Should the contract be prematurely
terminated, payments will be made forwork completed and accepted to date of termination.
6. Ownership of Documents: All documents prepared by Consultant pursuant to this contract shall be the property of
city.
7. Statutory Requirements: ORS 279C.505, 279C.515, 279C.520 and 279C.530 are made part of this contract.
8. Living Wage Requirements: If the amount of this contract is $20,688.86 or more, Consultant is required to comply
with chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in this chapter, to all employees
performing work under this contract and to any Subcontractor who performs 50% or more of the service work under
this contract. Consultant is also required to post the notice attached hereto as Exhibit B predominantly in areas where
it will be seen by all employees.
9. Indemnification: Consultant agrees to defend, indemnify and save City, its officers, employees and agents harmless
from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damages resulting from
injury to any person (including injury resulting in death), or damage (including loss or destruction) to property, of
whatsoever nature arising out of or incident to the performance of this contract by Consultant (including but not
limited to, Consultant's employees, agents, and others designated by Consultant to perform work or services
attendant to this contract). Consultant shall not be held responsible for an losses, ex enses, claims subro ations
Contract for Personal Services less than $35,000.00, 08119/2017, Page 1 of 5
actions, costs, judgments, or other damages, directly, solely, and proximately caused by the negligence of City.
10. Termination:
a. Mutual Consent. This contract may be terminated at any time by mutual consent of both parties.
b. City's Convenience. This contract may be terminated at any time by City upon 30 days' notice in writing
and delivered by certified mail or in person.
C. For Cause. City may terminate or modify this contract, in whole or in part, effective upon delivery of
written notice to Consultant, or at such later date as may be established by City under any of the following
conditions:
I. If City funding from federal, state, county or other sources is not obtained and continued at levels
sufficient to allow for the purchase of the indicated quantity of services;
ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such a way
that the services are no longer allowable or appropriate for purchase under this contract or are
no longer eligible for the funding proposed for payments authorized by this contract; or
ff1. If any license or certificate required by law or regulation to be held by Consultant to provide the
services required by this contract is for any reason denied, revoked, suspended, or not renewed.
d. For Default or Breach.
L Either City or Consultant may terminate this contract in the event of a breach of the contract by
the other. Prior to such termination the party seeking termination shall give to the other party
written notice of the breach and intent to terminate. If the party committing the breach has not
entirely cured the breach within 15 days of the date of the notice, or within such other period as
the party giving the notice may authorize or require, then the contract may be terminated at any
time thereafter by a written notice of termination by the party giving notice.
ii. Time is of the essence for Consultant's performance of each and every obligation and duty under
this contract. City by written notice to Consultant of default or breach may at any time terminate
the whole or any part of this contract if Consultant fails to provide services called for by this
contract within the time specified herein or in any extension thereof.
iii. The rights and remedies of City provided in this subsection (d) are not exclusive and are in
addition to any other rights and remedies provided by law or under this contract
e. Obligation/Liability of Parties. Termination or modification of this contract pursuant to subsections a, b, or
c above shall be without prejudice to any obligations or liabilities of either party already accrued prior to such
termination or modification. However, upon receiving a notice of termination (regardless whether such notice is
given pursuant to subsections a, b, c or d of this section, Consultant shall immediately cease all activities under
this contract, unless expressly directed otherwise by City in the notice of termination. Further, upon termination,
Consultant shall deliver to City all contract documents, information, works-in-progress and other property that are
or would be deliverables had the contract been completed. City shall pay Consultant for work performed prior to
the termination date if such work was performed in accordance with the Contract.
11. Independent Contractor Status: Consultant is an independent contractor and not an employee of the City.
Consultant shall have the complete responsibility for the performance of this contract. Consultant shall provide
workers' compensation coverage as required in ORS Ch 656 for all persons employed to perform work pursuant to
this contract. Consultant is a subject employer that will comply with ORS 656.017.
12. Assignment and Subcontracts: Consultant shall not assign this contract or subcontract any portion of the work
without the written consent of City. Any attempted assignment or subcontract without written consent of City shall be
void. Consultant shall be fully responsible for the acts or omissions of any assigns or Subcontractors and of all
persons employed by them, and the approval by City of any assignment or subcontract shall not create any
contractual relation between the assignee or subcontractor and City.
13. Default. The Consultant shall be in default of this agreement if Consultant: commits any material breach or default
of any covenant, warranty, certification, or obligation it owes under the Contract; its QRF status pursuant to the QRF
Rules or loses any license, certificate or certification that is required to perform the Services or to qualify as a QRF if
consultant has qualified as a QRF for this agreement; institutes an action for relief in bankruptcy or has instituted
against it an action for insolvency; makes a general assignment for the benefit of creditors; or ceases doing business
on a regular basis of the type identified in its obligations under the Contract; or attempts to assign rights in, or
delegate duties under, the Contract.
14. Insurance. Consultant shall at its own expense provide the following insurance:
a. Worker's Compensation insurance in compliance with ORS 656.017, which requires subject employers to
provide Oregon workers' compensation coverage for all their subject workers
b. Professional Liability insurance with a combined single limit, or the equivalent, of not less than Enter one:
$250,000, $500,000, $1,000,000,$2,000,000 or Not Applicable for each claim, incident or occurrence. This is to
cover damages caused by error, omission or negligent acts related to the professional services to be provided
under this contract.
C. General Liability insurance with a combined single limit, or the equivalent, of not less than Enter one:
$200,000, $500,000, $1,000,000, $2,000,000 or Not Applicable for each occurrence for Bodily Injury and Property
Damage.
d. Automobile Liability insurance with a combined single limit, or the equivalent, of not less than Enter one:
Contract for Personal Services less than $35,000.00, 06119/2017, Page 2 of 5
$100,000, $500,000, $1,000,000, or Not Applicable for each accident for Bodily Injury and Property Damage,
including coverage for owned, hired or non-owned vehicles, as applicable.
e. Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or
intent not to renew the insurance coverage(s) without 30 days' written notice from the Consultant or its insurer(s) to
the City.
f. Additional Insured/Certificates of Insurance. Consultant shall name The City of Ashland, Oregon, and its
elected officials, officers and employees as Additional Insureds on any insurance policies, excluding Professional
Liability and Workers' Compensation, required herein, but only with respect to Consultant's services to be provided
under this Contract. The consultant's insurance is primary and non-contributory. As evidence of the insurance
coverages required by this Contract, the Consultant shall furnish acceptable insurance certificates prior to
commencing work under this contract. The certificate will specify all of the parties who are Additional Insureds.
Insuring companies or entities are subject to the City's acceptance. If requested, complete copies of insurance
policies; trust agreements, etc. shall be provided to the City. The Consultant shall be financially responsible for all
pertinent deductibles, self-insured retentions and/or self-insurance.
15. Governing Law; Jurisdiction; Venue: This contract shall be governed and construed in accordance with the laws
of the State of Oregon without resort to any jurisdiction's conflict of laws, rules or doctrines. Any claim, action, suit or
proceeding (collectively, "the claim") between the City (and/or any other or department of the State of Oregon) and
the Consultant that arises from or relates to this contract shall be brought and conducted solely and exclusively within
the Circuit Court of Jackson County for the State of Oregon. If, however, the claim must be brought in a federal
forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the
District of Oregon filed in Jackson County, Oregon. Consultant, by the signature herein of its authorized
representative, hereby consents to the in personam jurisdiction of said courts. In no event shall this section be
construed as a waiver by City of any form of defense or immunity, based on the Eleventh Amendment to the United
States Constitution, or otherwise, from any claim or from the jurisdiction.
16. THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE
PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS CONTRACT SHALL
BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT,
MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR
THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR
REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT.
CONSULTANT, BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT
HE/SHE HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS.
17. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds currently available and
authorized for expenditure to finance the costs of this contract within the City's fiscal year budget. Consultant
understands and agrees that City's payment of amounts under this contract attributable to work performed after the
last day of the current fiscal year is contingent on City appropriations, or other expenditure authority sufficient to allow
City in the exercise of its reasonable administrative discretion, to continue to make payments under this contract. In
the event City has insufficient appropriations, limitations or other expenditure authority, City may terminate this
contract without penalty or liability to City, effective upon the delivery of written notice to Consultant, with no further
liability to Consultant.
Certification. Consultant shall sign the certification attached hereto as Exhibit A and herein incor orated b reference.
Consultant: City of Ashland
By By
Signature Department Head
Print Name Print Name
Title Date
(W-9 is to be submitted with the signed contract.
Purchase Order No.
Contract for Personal Services less than $35,000.00, 06/19/2017, Page 3 of 5
EXHIBIT A
CERTIFICATIONS/REPRESENTATIONS: Contractor, under penalty of perjury, certifies that (a) the
number shown on the attached W-9 form is its correct taxpayer ID (or is waiting for the number to be
issued to it and (b) Contractor is not subject to backup withholding because (1) it is exempt from
backup withholding or (ii) it has not been notified by the Internal Revenue Service (IRS) that it is
subject to backup withholding as a result of a failure to report all interest or dividends, or (Iii) the IRS
has notified it that it is no longer subject to backup withholding. Contractor further represents and
warrants to City that (a) it has the power and authority to enter into and perform the work, (b) the
Contract, when executed and delivered, shall be a valid and binding obligation of Contractor
enforceable in accordance with its terms, (c) the work under the Contract shall be performed in
accordance with the highest professional standards, and (d) Contractor is qualified, professionally
competent and duly licensed to perform the work. Contractor also certifies under penalty of perjury
that its business is not in violation of any Oregon tax laws, it is an independent Contractor as defined
in the contract documents, it is authorized to do business in Oregon, it is authorized to act on behalf
of the City, and Contractor has checked four or more of the following criteria that apply to its
business.
(1) 1 carry out the labor or services at a location separate from my residence or is in a
specific portion of my residence, set aside as the location of the business.
(2) Commercial advertising or business cards or a trade association membership are I
purchased for the business.
(3) Telephone listing is used for the business separate from the personal residence listing. .
(4) Labor or services are performed only pursuant to written contracts.
(5) Labor or services are performed for two or more different persons within a period of one
year.
(6) I assume financial responsibility for defective workmanship or for service not provided
as evidenced by the ownership of performance bonds, warranties, errors and omission
insurance or liability insurance relating to the labor or services to be provided.
Contractor (Date)
Contract for Personal Services less than $35,000.00, 0611912017, Page 4 of 5
CITY OF ASHLAND, OREGON
EXHIBIT B
City of Ashland
LIVING
WAGE
.
per. hou[ effectiye,June 30, 2017...:,`:
(Increases annually.every June 30. by the..
Consumer Price Index)
qunder portion of business of their 401 K and IRS eligible
employer, if the employer has cafeteria plans (including
ten or more employees, and childcare) benefits to the
has received financial . amount of wages received by
FFor all hours assistance for the project or the employee.
business from the City of
service contract between their Ashland in excess of ➢ Note: "Employee" does not
employer and the City of $20,688.86. include temporary or part-time
Ashland if the contract employees hired for less than
exceeds $20,688.86 or more. ➢ If their employer is the City of 1040 hours in any twelve-
Ashland including the Parks month period. For more
➢ For all hours worked in a and Recreation Department. details on applicability of this
month if the employee spends policy, please see Ashland
50% or more of the ➢ In calculating the living wage, Municipal Code Section
employee's time in that month employers may add the value 3.12.020.
working on a project or of health care, retirement,
For add itional information:
Call the Ashland City Administrator's office at 541488-6002 or write to the City Administrator, City Hall,
20 East Main Street, Ashland, OR 97520 or visit the city's website at www•ashland.or.us.
Notice to Employers: This notice must be posted predominantly in areas where it can be seen by all
employees. CITY OF
ASHLAND
Contract for Personal Services less than $35,000.00, 06/1912017, Page 5 of 5
CONSULTING EXHIBIT C
ENGINEERS
EUGENE, OR January 24, 2018
Corporate Office
541.683.6090
Karl Johnson, E.I.T.
LAKE OSWEGO, OR City of Ashland Engineering Department
503.620.6103 20 East Main Street
SALEM, OR Ashland, OR 97520
503.589.4100
MEDFORD, OR RE: Hersey St. Reconstruction from N. Mountain Ave. to N. Main St.
541.774.5590
VANCOUVER, WA Dear Karl:
360.314.2391
www.abec.com Thank you for considering OBEC Consulting Engineers for your Hersey St. Reconstruction from N.
Mountain Ave. to N. Main St. project. Based upon our understanding of the project, we have
prepared the following scope of services along with the attached breakdown of costs.
Project Understanding
Hersey Street provides important east-west connectivity for residential and commercial traffic,
totaling approximately 3,500 ADT. Traffic loading, shallow groundwater, and high water events
all contribute to the deteriorating asphalt surface. The Hersey Street bridge crossing at Ashland
Creek has a capacity of 500cfs (below the recommended 3100 cfs for Ashland Creek) prior to
over topping and a small section of the road section is within the designated 100-year flood
zone.
The City has strained to adequately manage underground drainage in sections of Hersey Street
and has had several pothole and travel lane repairs. There are wetlands on the south side of
Hersey just east of Oak Street and there are apparent springs and natural underground water
along Hersey Street. This project will rebuild (or other appropriate designs such as grind/inlay in
some areas) the road in-between the curb/gutter from N. Main Avenue to N. Mountain
Street. ADA ramps and pedestrian crossings will need to be updated to meet current standards.
OBEC's previously obtained topographic survey and right-of-way information will be used to
complete the design. There are several utilities within the project limits that will require updated
coordination.
Our proposed detailed scope of services for the design phase is as follows:
TASK I PROJECT MANAGEMENT AND COORDINATION
Task 1.1 Project Management and Coordination
The major objectives of this task are to schedule, coordinate, and supervise project work and to
establish lines of communications between OBEC and City staff. OBEC shall keep the City project
January 24, 2018
Page 2 ' i CONSULT,
£NGIN££B.S
manager informed of the project work progress and aware of changes that may affect the
project design, schedule, and related costs.
OBEC will be responsible for the following project management tasks:
• Schedule, coordinate, and supervise project work
• Maintain communications and coordination with City staff
• Monitor scope, schedule & budget for the project
• Produce monthly invoices and progress reports (assumed to be no more than twelve)
Task 1.2 Project Meetings
OBEC staff will lead project meetings to discuss project details, review comments and updates
and provide a written summary and create an action item list as necessary. For budgeting
purposes, it is assumed that two OBEC staff members from the Medford office will attend up to 3
separate coordination/review meetings to discuss the project with the City staff and coordinate
design details at a kick-off meeting and after each design milestone.
TASK 2 LOCATION SURVEYING AND MAPPING j
This is an English unit Project. All Consultant deliverables must be reviewed and approved by
OBEC's Professional Land Surveyor ("PLS"), registered in the State of Oregon.
OBEC has previously surveyed the northerly half of Hersey Street from its intersection with N.
Main Street to its intersection with Oak Street. OBEC used the Oregon Coordinate Reference
System - Grants Pass- Ashland Zone, based on the NAD83 (2011) Epoch 2010 datum.
TerraSurvey performed a topographic survey along the northerly side of Hersey Street from its
intersection with Oak Street easterly to its intersection with N. Mountain Avenue back in 2008.
TerraSurvey used an assumed coordinate system. Their survey was used to design some street
Improvements and the project has been built which has changed some of the site conditions from
the 2008 survey. OBEC will verify the accuracy of that survey data and tie some key points to
adjust TerraSurvey's data to the OBEC datum, and to locate new features.
OBEC will collect topographic data along the southerly half of Hersey Street between N. Main
and Oak Street. OBEC will check the accuracy of TerraSurvey's survey data from 2008 and in-fill
their data with new topographic data from Oak Street to N. Mountain Avenue. OBEC shall also
collect topographic data along the southerly side of Hersey Street between Oak Street and N.
Mountain Avenue. The incorporation of this survey data will be completed under Task 2.3.
Task 2.1 Horizontal and Vertical Control Network
OBEC will establish a horizontal and vertical control network and set survey control points to tie
(survey) found monuments within the Project limits. The horizontal datum used by the Consultant
must be the Oregon Coordinate Reference System - Grants Pass-Ashland Zone, based on the
NAD83 (2011) Epoch 2010 datum. The vertical datum used by Consultant must be City of
Ashland NGVD 29(56). Consultant shall establish primary geodetic control monuments, (such as
5/8" iron rod with plastic cap or other permanent markers) and maintain line of sight throughout
N
t
I
January 24, 2018
Page 3 Im CONSUIRNG
ENGINEERS
q ma.,
qb~
the entire Project limits. These control monuments must be placed in locations by Consultant, such
that they can be utilized during construction.
Consultant shall run digital level loops to control points that are utilized in preparing the Digital
Terrain Model ("DTM"). Strategic points used to develop survey DTM in non-critical areas must be
no more than one (1) "shot" out from a network control point.
Deliverable(s)/Schedule:
• Horizontal and Vertical Control points will be incorporated into the Horizontal Control,
Monument Recovery and Retracement Survey in Task 2.4.
Task 2.2 Monument Recovery
OBEC shall perform a search of survey records on file with County and City, to perpetuate the
location of monuments that may be disturbed or destroyed during a future construction project.
Consultant shall research deeds and surveys of record, including but not necessarily limited to, j
property surveys, county road surveys, original county road resolutions, section corner surveys,
and DLC surveys. OBEC shall provide tax assessor maps, property deed search, and copies of all
pertinent documents to the City. j
I
OBEC shall survey found property corners, Government Corners, other survey monuments,
property line fences and lines of occupation within the limits of the Project. OBEC shall provide at
least one (1) PLSS (Public Land Survey System corner tie.
i
OBEC shall keep copies of the research data collected such as surveys, deeds, assessors' maps,
county road maps, government corner surveys, etc., in the Project file.
Deliverable(s)/Schedule:
• Recovered monuments incorporated into Horizontal and Vertical Control points will be
incorporated into the Horizontal Control, Monument Recovery and Retracement Survey in
Task 2.4.
• Electronic copies of all research data collected.
Task 2.3 Location Survey. Base map and Digital Terrain Model
OBEC shall contact the Oregon Utility Notification Center (OUNC) and order utility locates for the
entire project area. OBEC shall perform a topographic survey within the limits described above.
OBEC shall produce a topographic base map and the Digital Terrain Model (DTM) to be used for
the design of this project. The project shall be drafted using a scale of 1 "=50'.
Deliverable(s)I Schedule:
• Topographic base map and DTM shall be submitted to the City within ten (10) weeks of
Notice to Proceed (NTP).
• Electronic copy of the field notes.
i
I
January 24, 2018
Page 4 ► CAVNING
ENWN(£RS
i
I
Task 2.4 Existing R/W and Boundary Resolution
OBEC shall resolve the centerline and right of way lines of Hersey Street. OBEC shall obtain listing
kits for the properties that adjoin the right of way lines of Hersey Street. OBEC shall use the
recovered monuments and research records to aide in the retracement of Hersey Street. OBEC
shall submit the final "Horizontal Control, Monument Recovery and Retracement Survey" to the
Jackson County Surveyor's office for recording.
Deliverable(s)/Schedule:
• Submit an electronic copy of the recorded "Horizontal Control, Monument Recovery and
Retracement Survey" to the City within 16 week of NTP.
Task C2.5 Right of Way Engineering (Mapping and Descriptions) (CONTINGENCY TASK)
Once the Preliminary Design has been approved by the City, OBEC shall prepare descriptions
and exhibits for any right of way acquisition or easement acquisitions needed for the project
upon request.
Task C2.5.1 Legal Descriptions and Exhibit Maps (CONTINGENCY TASK)
Upon request by the City, OBEC shall prepare legal descriptions and exhibit maps for up to five
(5) parcels for the purpose of fee acquisition and/or easements for the Project.
Deliverable(s)15chedule:
• Electronic and hard copy (8-1/2"x14") legal descriptions and exhibit maps to the City
within eight (8) weeks of the following release of this contingency task .
Task C2.5.2 Bulletin Exhibit Maps (CONTINGENCY TASK)
Upon request by the City, OBEC shall prepare bulletin exhibit maps for up to ten (10) parcels for
the purpose of temporary construction easements. No easement descriptions will be prepared and
OBEC will not stake these easements in the field.
Deliverable (s) /Schedule:
• Electronic and hard copy (8-1/2"x 14") legal descriptions and exhibit maps to the City
within eight (8) weeks of the following release of this contingency task.
Task C2.5.3 Acquisition Staking (CONTINGENCY TASK)
OBEC shall stake the limits of the proposed property acquisitions in the field for up to five (5)
parcels prepared in Task C2.5.1. OBEC will stake the parcels one time only.
Deliverable(s)/Schedule:
• Consultant shall place physical stakes or paint marks within one (1) week of notification by
the City.
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TASK 3 ENVIRONMENTAL COORDINATION/SUPPORT
Task 3.1 Coordination. Accumulation and Review of Data
Consultant shall obtain and review existing environmental information related to the Project site.
Consultant shall coordinate and communicate with City, resource agencies, and project team to
begin environmental tasks, verify schedule, identify process and procedures, and update resource
agencies about the project. Consultant shall verify that assumptions made in this SOW are valid
and shall investigate any data gaps.
Deliverable(s)/Schedule:
• Coordination emails and phone log documentation upon request
Task 3.2 Wetland/Waters Determination and Memorandum
Consultant shall complete a wetland field determination and OHWM demarcation for the Project
Study Area (PSA).
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Consultant shall use available data (including but not limited to: soil surveys, aerial photos,
National/Local Wetland Inventory maps (NWI/LWI)), as well as data gathered in the field to s
document the presence or absence of wetlands within the PSA.
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Consultant shall:
• Determine wetland boundaries within the PSA in accordance with the criteria and methods
described in the 1987 Corps of Engineers Wetland Delineation Manual (Environmental
Laboratory Technical Report Y-87-1) and appropriate Regional Supplements.
• Place flags in the field to show wetland and upland sample plot locations, and the
wetland boundaries. Label and number the flags to identify their function.
• Ensure that field methods used and data collected meet the USACE and DSL technical
requirements for wetland delineations and ordinary high water demarcations. Collect and
record wetland delineation data on approved wetland determination data sheets for
possible inclusion with a wetland delineation report.
• Place flags in the field to show the OHWM elevation of all jurisdictional surface waters.
Assess the OHWM elevation using City accepted field indicators.
• Determine active channel width (ACW) of all waters identified in the PSA. ACW shall be !
determined based on current ODFW and NMFS practices.
Consultant shall prepare one Wetland Determination Technical Memo. The memo must include:
• Description of the PSA;
• Summary of existing available information, noting the standard information that is not
available (i.e., if no County soil survey coverage exists for the area, then it must be {
stated);
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• Field reconnaissance methods;
• Results of field reconnaissance;
• Data Sheets;
• Color photographic record depicting on-the-ground conditions
Deliverable(s):
• Draft and Final Wetland Determination Technical Memorandum
Schedule:
• One month following completion of the field survey
Task 3.3 ESA No Effect Memo and Rare Plant Survey
Consultant shall conduct a field survey of the PSA for the presence of ESA listed plant, fish and
wildlife species and their potential suitable habitat. Consultant shall contact the Oregon
Biodiversity Information Center to obtain data regarding listed threatened and endangered plant
and animal species as well as those proposed for listing under the federal and state ESA that
may occur within the Project area.
Consultant shall confirm that Federally-listed plant, fish and wildlife species and their habitat will
not be affected by the Project. Consultant shall communicate with local Oregon Department of
Fish and Wildlife ("ODFW"), NMFS and/or United States Fish and Wildlife Service ("USFWS")
staff and shall conduct agency database searches to acquire ESA information for the Project
area.
After all pertinent information is gathered and analyzed, Consultant shall prepare a No Effect
Memoranda ("NE Memo") for the Project area. Consultant shall coordinate with design staff and
City to develop appropriate measures for avoidance of effects on the listed species covered in
the NE Memo if avoidance measures are necessary to obtain a "no effect" determination.
Consultant shall develop appropriate avoidance measures to comply with the Migratory Bird
Treaty Act and include those avoidance measures in the project specifications.
It is anticipated that the Project will not result in any effects to listed fish, wildlife and botanical
species. Coordination with resource agency staff will occur by telephone and e-mail; no
additional site visits or meetings will be required.
Deliverable(s)/Schedule:
• Draft and Final ESA No Effect Memorandum
Task 3.4 Floodplain Permit
Consultant shall coordinate with City Planning staff to identify all requirements for local
floodplain permit that will be necessary for sidewalk work within the floodway. Consultant shall
prepare one (1) permit application and supplemental materials for submittal to the City Planning
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staff. Once submitted, Consultant shall be available to address comments during the City's
Planning Department's permit review period if needed.
Deliverable(s):
• Draft and Final Floodplain Permit application
Schedule:
• One month following approval of the Advance plans
Task 3.5 DEQ 1200-C Permit
Consultant shall develop a complete 1200-C Application package meeting Oregon Department
of Environmental Quality (DEQ) standards. Consultant shall submit the 1200-C permit to DEQ for
approval. City is responsible for all fees and obtaining the land use signature for permit
submittal.
Deliverable(s):
• Draft and Final DEQ 1200-C permit application
Schedule:
• One month following approval of the Advance plans
Task C3.6 Wetland Delineation Report (CONTINGENCY TASK)
Upon request by the City, Consultant shall prepare a Wetland/Waters of the U.S. Delineation
Report (Wetland Delineation Report) in accordance with the Department of State Lands (DSL)
standards. Consultant's report shall include all wetland data sheets obtained in the field.
Consultant shall prepare appropriate graphics to accompany the report and shall include a site
location map, Local Wetland Inventory (LWI) map, soil survey map, and representative
photographs. Consultant's Wetland Delineation Report shall also include wetland delineation
boundary mapping (figures) as finalized by Consultant. City will be responsible for all fees
associated with DSL review and approval.
Deliverable(s):
• Draft and Final Wetland Delineation Report
Schedule:
• Two months following release of this contingency task
Task C3.7 Joint Permit Application (CONTINGENCY TASK)
Upon request by the City, Consultant shall prepare a Joint Permit Application (JPA) and
Wetland/Waters Functional Assessment for a USACE Section 404 Nationwide Permit, Oregon
Department of Environmental Quality (DEQ) Section 401 Water Quality Certification and a DSL
General Permit (GP), to authorize work within jurisdictional waters and wetlands within the PSA.
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Consultant shall provide pre-submittal coordination with representatives of the USACE and DSL to
confirm permitting requirements and application procedures. Consultant shall conduct a pre-
application meeting at the offices of the USACE and DSL (or on-site) to review the Project plans
and to assess initial Agency comments on the Project. Consultant shall prepare drawings, maps,
photographs, project descriptions, and additional information for inclusion in the JPA. The JPA
shall also include a functional assessment of delineated wetland and waters features within the
PSA. It is assumed that the wetland and waters functional assessment can be completed using Best `e
Professional Judgment (BPJ) and a formal, stand alone, wetland/waters functional assessment will FE.
not be required.
Consultant shall provide engineering plans, concept drawings, site plan details, and project
description information as required to quantify and document wetland and waters impacts for the
JPA. Consultant shall prepare permitting documents for County signature and shall submit
required application materials directly to Agencies.
Consultant shall address comments and questions from the DSL, USACE, DEG, and NMFS to
facilitate the permitting process. It is assumed that any mitigation required will be minimal and
can be satisfied by purchasing wetland/waters mitigation credits from a wetland bank and/or
payment in lieu, no on-site compensatory wetland mitigation coordination and planning will be
required. No formal, standalone, wetland/waters mitigation plan will be required. The City is
responsible for obtaining land use department signatures and payment of all fees associated with
submittal and review of the JPA.
Deliverable(s):
• Draft and Final JPA. Final to be submitted to DSL, USACE, and DEG.
Schedule:
• Three months following release of this contingency task
Task C3.8 SLOPES Programmatic MOP Documentation (CONTINGENCY TASK)
Upon request by the City, Consultant shall use the USACE SLOPES V programmatic biological
opinion (BO) to evaluate the effects of the project on Endangered Species Act (ESA) listed fish
species that may be impacted by the project. Consultant shall prepare programmatic SLOPES V
documentation to obtain the Section 404 permit from the USACE. Consultant shall coordinate with
USACE, NMFS, DSL, ODFW, and DEG to obtain the information required by USACE and NMFS to
complete the programmatic documentation. It is anticipated that one on-site visit with NMFS and
the USACE will be required for this task and the project will be designed to meet all applicable
SLOPES design standards and requirements.
Deliverable(s):
• Draft and Final SLOPES Compliance Report
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Schedule:
• Three months following release of this contingency task
Task C3.9 ODFW Fish Passage Plan (CONTINGENCY TASK)
Upon request by the City, Consultant shall evaluate fish passage for one crossing according to
ODFW criteria and prepare one ODFW Fish Passage Plan. The Fish Passage Plans must identify
and address ODFW fish passage concerns and requirements per the ODFW Fish Passage Plan
form. Consultant shall coordinate with ODFW and obtain their concurrence/approval. It is
anticipated that one on-site will be required with ODFW and the project will be designed to meet
ODFW fish passage design criteria.
Deliverable(s):
• Draft and Final ODFW Fish Passage Plan
Schedule:
• Three months following release of this contingency task
Task C3.1 0 Physical and Environmental Constraints Permit (CONTINGENCY TASK)
Upon request by the City, Consultant shall prepare one City Physical and Environmental
Constraints (P&E) permit application meeting all applicable submittal requirements. Consultant
shall prepare for and attend one meeting with City land use department to obtain permit
requirements, discuss submittal requirements, and obtain relevant Information associated with the
P&E permit application. Consultant shall be available to answer questions and provide additional
information to city planners following submittal of the permit application. City will be responsible
for all fees associated with the review and approval of this permit application.
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Deliverable(s):
• Draft and Final Physical and Environmental Constraints permit application.
Schedule:
• Three months following release of this contingency task
TASK 4 PUBLIC INVOLVEMENT
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Task 4.1 Public Involvement Support & Meetings
OBEC will support the City with the public involvement process that will inform and seek feedback
from businesses and residents on Hersey Street within the project limits. In cooperation with the
City, OBEC will perform the following public involvement services:
■ Develop presentation materials appropriate for public meetings
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■ Attend and participate in conducting two (2) public meetings / workshops with local
businesses and residents
■ Document feedback from businesses and residents to be Incorporated into the design as
agreed to by the City
■ Schedule and attend one-on-one follow-up meetings with businesses most severely
impacted by construction
It is assumed that City staff will provide a suitable location for all public meetings and advertise
them as appropriate. For budgeting purposes, it is assumed that OBEC's Project Manager and
Roadway lead or Construction Project Manager shall attend the Open House that will last no
more than three (3) hours, not including travel time.
Deliverable(s)lSchedule:
Consultant shall prepare the below materials (2 sets, one for each meeting) after the
Preliminary design submittal for display at a public meeting:
• roll maps including R/W acquisition and aerial graphics
• project drawings/details (utilizing plan sheets created in tasks 10 and 11)
• public comment log
TASK 5 UTILITY COORDINATION
Task 5.1 Utility Location and Coordination
OBEC shall review utilities Identified to be within the project limits, initiate contacts with utilities,
and coordinate relocations needed for construction of the Project. This work includes, but Is not
limited to, coordinating and collecting utility-provided three-dimensional location of any
underground utilities that may be in conflict with the Project work, and coordinating with the utility
owners to resolve those potential conflicts.
OBEC shall schedule, attend and document on-site meetings with potentially affected utilities. The
meetings shall be conducted on the Project site after impacts have been identified. For budgeting
purposes, attendance at a maximum of two (2) site meetings is anticipated, each of which may
last up to three (3) hours including travel time.
For each private utility found in potential conflict with the proposed design, OBEC shall prepare a
Utility Conflict Notification Letter informing the utility of the potential conflict and the need to
relocate/adjust the utility facility and required timing of relocation. OBEC shall work with each
private utility to verify a relocation plan that is not in conflict with the Project. Once OBEC has
confirmed the relocation plan with each utility, a Timing Requirements Letter will be sent to the
each affected utility. When Consultant has made proper arrangements with each utility owner,
to either clear the right of way of their utility facilities prior to construction, or for relocation to
occur during construction so as to not delay the contractor, OBEC shall provide the City with a
written summary. (I
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OBEC shall coordinate locations and relocations with the City on any City-owned utilities that are
within the project limits.
Assumption:
• No reimbursable utility relocations
Deliverable(s)/Schedule:
• Electronic copy of Utility Conflict / Project Notification letters to the City as per project
schedule
• Electronic copy of approval of each utility's relocation plan and Timing Requirements
letters as per the project schedule
TASK 6 GEOTECHNICAL GEOLOGIC / PAVEMENT DESIGN SERVICES
Task 6.1 Site Reconnaissance, Exploration and Testing Work Plan
Consultant shall conduct a field reconnaissance visit for planning the necessary field investigation
work and to assess the temporary traffic control needs for the field investigation.
Deliverable(s)/Schedule:
Consultant shall provide:
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Work plan and traffic control plan for the field investigation work
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Task 6.2 Field Exploration and Laboratory Testing
Consultant shall perform the pavement and geotechnical explorations and laboratory testing as
needed in order to evaluate the subsurface conditions and to develop pavement and geotechnical
designs. The anticipated field exploration and laboratory testing program is provided below.
Geoiechnica) and Pavement Borings: We will conduct up to Ten (10) geotechnical and/or
pavement borings. At each location conducted in paved areas, a core sample of the bound
layers of the pavement will be retrieved using a diamond-bit core drill. The pavement layers and
subgrade soil, where encountered, will be visually classified; the depth and thickness of pavement
layers will be measured; and grab samples of subgrade soil, where encountered, will be
retrieved for laboratory water content determination and visual reclassification. The core
samples will be inspected for cracking, delamination, and indications of asphalt stripping
damage.
We will characterize the soil and groundwater conditions at each of the borings in order to assist
us in developing recommendations for subsurface drainage, earthwork and soil improvement or
modification. Each of the geotechnical and pavement borings will be logged to a maximum
depth of 5-ft. below the surface.
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We have assumed that all borings will be drilled with a hollow stem or solid-stem auger drilling
technique and that rock-coring will not be performed.
Laboratory Testing: Water contents, sieve analyses, expansive index tests, and Atterberg limits
tests shall be conducted by Consultant on soil samples obtained from the borings in order to
classify the soils and estimate their engineering properties.
Assumptions:
• Water contents will be conducted on grab samples obtained at approximately 1-ft.
intervals. Up to three (3) Atterberg limits tests or sieve analysis tests, and up to four (4)
expansive index tests will be performed.
• The depth of the exploration below the bound layers will be patched using excavated
materials compacted by a vibratory hammer and the core hole through the bound layers
will be patched using Instant Road Repair, a high performance polymer modified asphaltic
patching material, compacted by vibratory hammer. A Consultant representative will
conduct and direct the pavement coring work.
Task 6.3 Geotechnical Design Services
Task 6.3.1 Geotechnical Design Services
Consultant shall perform analyses of the field and laboratory test data to develop
geotechnical recommendations for construction of drainage improvements. The
geotechnical design must include development of typical drainage details, location, and
extent of the drainage improvements.
Task 6.3.2 Geotechnical Design Report
Consultant shall prepare a "Geotechnical Report" summarizing the subsurface soil and
groundwater conditions, and design, and construction recommendations. The Geotechnical
Report must summarize the field observations, subsurface conditions, laboratory test data,
analysis results, construction issues and geotechnical recommendations for soil improvement
and new drainage improvements.
Task 6.4 Pavement Design Services
Consultant shall provide all equipment, labor, materials and traffic control required for the field
investigation and the development of any new construction, reconstruction, or rehabilitation
pavement designs as described herein. All work related to completing the pavement design(s)
shall be conducted in accordance with the latest edition of the ODOT Pavement Design Guide.
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Assumptions:
• The street segment in this SOW for pavement design along with the design work scope
is shown in Table 6.4.1.
Table 6.4.1 Project Segment and Pavement Design Work Scope
Project Centerline Assumed Design
Street From To length (ft.) Alternatives to be I
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Hersey St N. Mtn. Ave. N Main St 5,312 20 and 40 Year Design
Periods
Pavement Rehabilitation
Pavement Reconstruction
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Full Depth Reclamation
Since it is not known at this time whether full depth reclamation (FDR) is a feasible alternative, we
have included the laboratory testing for this alternative as a contingency task. However, we will
obtain sufficient sample during our field investigation to complete the laboratory testing, if FDR
appears to be viable and the contingency task is authorized.
Task 6.4.1 Pavement Testing I
Consultant shall conduct falling weight deflectometer (FWD) testing between the limits
shown in Table 6.4.1. The FWD testing shall be conducted at 100-ft intervals in both
directions (approx. 106 tests). The FWD shall meet the calibration requirements given in
the ODOT Pavement Design Guide.
Assumptions:
• FWD testing work shall be conducted during Monday through Friday between the
hours of 9 AM and 4 PM.
• Consultant shall provide traffic control for lane closures in accordance with the
Oregon Temporary Traffic Control Handbook.
Task 6.4.2 Pavement Analysis
Consultant shall perform an engineering analysis of the data in accordance with the
requirements of the ODOT Pavement Design Guide for the development of the pavement
design(s) identified in Table 6.4.1.
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Task 6.4.3 Pavement Design Report
Consultant shall prepare a pavement design report to document all phases of the
pavement design process, provide the recommended design alternative(s), as well as the
materials and specifications for construction.
Assumptions:
• Consultant shall utilize a qualified traffic counting service in order to obtain a 24
hour classified traffic count. The truck traffic shall be classified by the FHWA axle
category.
• The City shall provide an estimate of the annual growth rate in truck traffic. If no E
growth data is available an assumed annual growth rate of 2% will be used. 'I.
• The pavement design is for Asphalt Concrete Pavement ("ACP") based on the i
alternatives shown in Tables 6.4.1 (as feasible).I
• The pavement shall be designed in accordance with the 1993 AASHTO design
methodology.
• Consultant shall provide material recommendations for all pavements within the
project boundaries, subgrade preparation in new pavement areas (as applicable)
and mitigation of deleterious soil or fill conditions, if appropriate.
Deliverable(s)/Schedule:
Consultant shall provide:
• A draft pavement report will be submitted for review by the City.
• A final stamped pavement design report in PDF format will be provided that
incorporates the review comments by the City.
Task 6.5 Meetings
Consultant shall attend a design review meeting to discuss the findings and recommendations of
the Geotechnical and Pavement Designs.
Assumptions:
• Meeting will be held at City's Ashland office
Task C6.6 FDR Laboratory Testing (CONTINGENCY TASK)
If FDR appears to be a feasible pavement design alternative and the City authorizes this task,
then laboratory testing will be conducted in order to estimate the design cement content. The
laboratory testing will be completed in general accordance with the Portland Cement Association
(PCA) design procedures Soil-Cement Laboratory Handbook, except that acceptance criteria will
be based on compressive strength test results, i.e. rather than freeze-thaw tests. A moisture-
density (compaction) test will be performed on up to two samples in accordance with ASTM D558
Moisture-Density Relations of Soil-Cement Mixtures in order to estimate the optimum moisture
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content and maximum dry density of the soils. Compressive strength testing will be conducted on
up to two (2) different soil types in order to estimate the range of soil cement requirements. For
each soil sample, two soil-cement specimens at three different cement contents (12 total samples)
will be prepared and cured at 100% humidity for seven days, soaked in water for at least four
hours, and tested for compressive strength in accordance with ASTM D1 633 Compressive Strength
of Molded Soil-Cement Cylinders.
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TASK 7 HYDROLOGIC, HYDRAULIC AND STORMWATER ANALYSES
The major objectives of this task are to gather information about the project area and review the
existing City's GIS layout and OBEC's topo provided in Task 2.3. OBEC will visit the project site
to observe existing conditions and features, taking photos and measurements as needed, and
make a basic inventory of existing improvements within the project area for cost estimating
purposes.
OBEC shall analyze exiting storm systems on Hersey Street from N. Main and N. Mountain Avenue
for the 25 year (24hr) storm event (per City Standards) and if needed provide recommended
alternatives. OBEC shall evaluate the extent of the improvements needed, identify associated
impacts, and present recommendations for solutions in a memo format.
Task 7.1 Site Reconnaissance
Consultant's stormwater expert shall visit the Project site to inspect existing drainage conditions.
The inspection must assess existing drainage patterns, identify existing storm sewer facilities within
or near the Project site, and determine potential solutions for installing new storm drainage
facilities. A photographic log shall be developed.
Deliverable(s)/Schedule:
Consultant shall include:
• Summary of site conditions into Stormwater Management Report under Task 7.3.
Task 7.2 Stormwater Runoff Analysis
Consultant shall calculate the volume of Stormwater runoff from proposed semi-pervious and
impervious surfaces within the Project limits and consider appropriate stormwater collection,
treatment and management methods per the City of Ashland Stormwater Design Standards and
the Rogue Valley Stormwater Quality Design Manual. It is assumed that stormwater runoff and all
collected flows will be directed to existing or future storm drain infrastructure adjacent to the
Project area. Analysis of downstream storm drain capacity is not included in this scope.
Deliverable(s)/Schedule:
Consultant shall include: i
• Results of stormwater analysis into Stormwater Management Plan under Task 7.3. j
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Task 7.3 Stormwater Management Plan
Consultant shall summarize findings and recommendations in a Stormwater Management Plan.
This plan must delineate the areas of runoff, characterize runoff conditions, discuss existing soil
infiltration rates, and recommend areas where runoff can infiltrate, bio-swales can be installed,
and/or where stormwater improvements will direct runoff into the City's storm system. Maps must
be included in the report that delineates the drainage patterns and infiltration areas.
Deliverable(s)/Schedule:
Consultant shall provide:
• Draft Stormwater Management Plan to be incorporated into Preliminary Design Package
under Task 10.1.
• Final Stormwater Management Plan to accompany Advance Plans Package under Task
11.1.
Task 7.4 Hydraulic Report and No-Rise Certification
OBEC shall utilize previously completed site-specific hydraulic model for sidewalk construction
within the floodway. The site-specific hydraulic model must contain three (3) conveyance
alternatives: (1) the "natural" channel, (2) the existing culvert, and (3) the existing culvert with new
sidewalk construction conditions. Consultant's model analyses must determine water surface
profiles, velocities, channel characteristics, and changes In backwater elevations.
Consultant shall prepare a no-rise analysis for the proposed improvements to the Hersey Street
sidewalk that fall within the regulated floodway of Ashland Creek. Consultant shall verify a no-
rise In the 100-year base flood elevation in Ashland Creek.
Consultant shall summarize findings and recommendations from task 7.4 in a Hydraulic Report in
accordance with the current ODOT Hydraulics Manual. Consultant's Hydraulic Report must
describe the impacts of sidewalk construction on hydrology and hydraulics including design
recommendations for grading and surfacing. Consultant's Hydraulic Report must include the
following: site hydrology, flood history (if known from Project information), flood flows, velocities
and water surface elevations, and summary output from the HEC-RAS hydraulic analysis. The
report must include a certificate stamped by the engineer stating that Project improvements will
result in a no-rise condition to the 100-year base flood elevation in Ashland Creek.
Consultant shall respond to review comments with a letter of response, and revised or amended
Hydraulic Report as required.
Deliverable(s)/Schedule:
Consultant shall include results of hydraulic analysis in deliverables for Task 7.4 - Hydraulic
Report
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• Consultant shall prepare and submit Hydraulics Report and No-Rise Certificate to the City
within four (4) weeks of Preliminary Plans submittal for Task 10.1.
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TASK 8 TRAFFIC ENGINEERING AND MANAGEMENT
Task 8.1 Traffic Analysis
Consultant conduct traffic operations analysis at the Hersey Street/Oak Street intersection for
both existing and future 2040 PM peak hour conditions to verify lane configuration and identify
operational deficiencies. Consultant shall make one site visit during PM peak hour conditions to
observe traffic operations. Future traffic volumes will be developed from travel demand forecasts
provided by the Rogue Valley Council of Governments or the current version of the City's
Transportation System Plan. Consultant shall collect the following traffic data for use in the
analysis:
• One (1) bi-directional 24-hour traffic volume and truck classification count along Hersey
Street within the project limits.
• AM and PM peak hour turn movement counts at the intersection of Hersey Street/Oak
Street
The most recent five years of available collision data for the Project limits will be obtained from
ODOT's database, and analyzed as part of this task. The results of the analysis will be
summarized in a technical memorandum.
No traffic signal warrant analysis is included as part of this task.
Deliverable(s)/Schedule:
Consultant shall provide:
• Draft and Final Traffic Analysis memorandum
• One site visit during PM peak hour conditions
• Attendance via phone at one comment review meeting
8.2 Lighting Analysis, Lighting, Signing, and Striping Design
Consultant shall complete a lighting analysis for the project corridor using AGI32 Lighting Analysis
software. The focus of the analysis will be to evaluate existing light levels at intersections/crossing
locations, and look at the possibility of upgrading existing roadway lighting to LED. Consultant
shall review existing luminaire information in the field. Light levels will be per the minimum J
recommended light levels published in the Roadway Lighting IESNA RP-08 guidelines. Preferred
luminaire model, mounting height, and arm length will be coordinated with the City. This task does
not include an evaluation of illumination alternatives. The results of the lighting analysis will be
summarized in a technical memorandum.
Consultant shall prepare combined plans, specifications, and construction cost estimates for the
roadway lighting, permanent signing, and pavement markings associated with the proposed
improvements. The design must be completed in accordance with applicable MUTCD and City j
standards. It is assumed that the plans will include roadway lighting, permanent signing, and
pavement marking. Consultant shall incorporate applicable City Standard Drawings into the
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drawing set as detail sheets stamped by the Consultant. The following plan sheets are assumed as
part of this task:
• Pavement Marking Legend - 1 sheet (NTS)
• Illumination Legend - 1 sheet (NTS)
• Combined Roadway Lighting, Permanent Signing, and Pavement Marking Plans - 10
sheets (1 40')
• Permanent Signing Details - 2 sheets (NTS)
• Illumination Details - 2 sheets (NTS)
8.2 Consultant Deliverables and Schedule
Consultant shall provide:
• Draft and Final Lighting Analysis Memorandum
• Preliminary Permanent Signing and Pavement Marking plans included in the
Preliminary Plans submittal for Task 10.1
• Advance Permanent Signing and Pavement Marking plans, specifications, and
estimate included in Advance PS&E submittal for Task 11.1
• Final Permanent Signing and Pavement Marking plans, specifications, and estimate
with included in Final PS&E submittal for Task 12.1
• One site visit (combined with site visit in Task 8.1)
• Attendance in person at one comment review meeting
• Attendance via phone at one comment review meeting
Task 8.3 Pedestrian Crossing Treatment Recommendation Memorandum
Consultant shall evaluate and make recommendations for pedestrian crossings at up to two (2)
locations on Hersey Street within the Project limits. Locations will be coordinated with the City
prior to evaluation. Consultant shall evaluate potential enhancements based on information
gathered in the field, current City standards, and NCHRP Report 562. Traffic data collected in
Task 8.1 will be used in the pedestrian crossing evaluation. No new traffic counts will be collected
as part of this task.
Consultant shall summarize findings and recommendations in a brief Pedestrian Crossing
Treatment Recommendation Memorandum.
It is assumed that enhancements will be limited to signing and striping only, and any
recommendations from the evaluation will be included with the design in Task 8.2.
Deliverable(s)/Schedule:
Consultant shall provide:
• Draft and Final Pedestrian Crossing Treatment Recommendation Memorandum
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• One site visit (combined with site visit in Task 8.1) k
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TASK 9 RIGHT OF WAY ("ROW") ACQUISITION
Task 9.1 Preliminary Activities / ROE
Utilizing the project base maps and cross sections, Consultant will assist in identifying needed right
of way for the proposed design. Consultant will attend pre project meetings and pre project
property owner meetings and will coordinate with project team on scope of meetings and
associated ROW input. Consultant will prepare and present ROW direction to Project Team, as
needed and participate in Project Team calls and Assigned Action Items, as needed. Consultant
will obtain up to 10 Rights of Entry as needed.
Task C9.2 Cost Estimate (CONTINGENCY TASK)
Consultant will prepare a right of way cost estimate. Consultant will provide a spreadsheet of
potential right-of-way acquisitions, listing phone numbers, site addresses and type(s) of
acquisitions from each parcel: parcel maps, and right-of-way acquisition and preliminary cost
estimates for each parcel.
Task C9.3 Minimum Payment Offers (CONTINGENCY TASK)
Consultant shall identify all property owners, and compile property owner information needed to
acquire necessary property rights. This is including but not limited to property owner vesting,
phone numbers, email addresses, and mailing addresses.
Upon receipt of authorization to proceed with ROW Acquisition, Consultant shall attempt to
arrange contacts with property owners and identify property and Project issues by providing the
following services for each file:
• Consultant shall prepare a minimum payment offer letter and associated proposed
agreement documents. The minimum payment offer letter must follow the template
provided by the City. The proposed agreement documents must include information
detailing the terms of the temporary easement and a sketch Indicating the limits of the
temporary easement. Consultant shall deliver the minimum payment offer letters and
associated proposed agreement documents to all owners via certified mail with proof of
delivery kept in the parcel file.
• Consultant shall arrange negotiation contacts with property owners and identify property
and Project issues for each file.
• Consultant shall contact property owners to provide general information about the Project
and answer any questions related to the minimum payment offer terms.
• If property owners are willing to accept the minimum payment offer, Consultant shall
ensure the signed agreement documents are sent to the City for final approval and
payment.
• IF a COUNTER OFFER is received, Consultant shall submit the proposed COUNTER OFFER ,
with a justification letter and owner supplied supporting documentation to City for
approval. If accepted see proceeding bullet.
• IF an acceptable agreement is not reached, Consultant shall document this decision in the
file and notify City that the standard ROW acquisition process must be used.
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January 24, 2018
Page 20 ! r CON.SULRNG
ENGINEERS
RW
• Consultant shall prepare and maintain a Report of Personal Interview for each file.
Task C9.4 Appraisal and Appraisal Review (CONTINGENCY TASK)
Consultant shall use appraisers who are licensed or certified in the State of Oregon and
competent in eminent domain appraising.
Consultant shall provide one real estate appraisal for each property or properties which
constitute the "larger parcel."
Consultant shall provide not fewer than 15 days' written notice to owners of the planned
appraisal inspections. The property owner and designated representative, if any, shall be invited
to accompany the appraiser on any inspection of the property for appraisal purposes.
Consultant shall send this notice via certified mail with proof of delivery and kept in the parcel
file.
Consultant shall perform independent reviews of appraisals. Consultant shall ensure that the some
firm does not perform both the appraisals and the appraisal reviews. Consultant shall forward
i
both appraisal and review to City for final approval.
City will establish just compensation for each property owner and will notify the Consultant.
Task C9.5 Acquisition Services (CONTINGENCY TASK)
Consultant shall identify all property owners, and compile property owner information needed to
acquire necessary property rights. This is including but not limited to property owner vesting,
phone numbers, email addresses, and mailing addresses.
All right of way shall be acquired in the name of City. Consultant shall conduct negotiations, on
behalf of the City, in good faith and in compliance with all federal and state laws and
regulations. Consultant shall conduct negotiations for acquisition of real property based on
Appraisal Review.
Consultant shall be responsible for working with the title company to clear title encumbrances
identified on the Preliminary Title Report or making the offer subject to clearing title
encumbrances. Consultant shall present any requests for taking title subject to one or more
outstanding interests to City for approval. Fee owners' and contract purchasers' ownership
interests must be cleared. When impacted by the taking, lessees' interests must also be cleared.
Consultants shall prepare and present to City the draft Offer Packets. All offers will be made on
City letterhead, will include City contact information, and will be signed by City. These Offer
Packets shall include, but are not limited to, acquisition and relocation brochures, offer-benefit
letter, acquisition and relocation summary statements, conveyance documents and exhibits (to be
approved by the City's legal department), copy of appraisal, map of acquisition, instruments of
conveyance and W-9 form (if money is exchanged).
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January 24, 2018
Page 21 ' i CCIAtW NNG
ENGINEERS
If possible, Consultant shall make offers in person, especially where the acquisition involves either
a major impact to the property or the displacement of persons occupying the property. If this is
deemed not possible, Consultant shall send via certified mail. Proof of delivery must be
documented in the Report of Personal Interview and file.
I
Consultant shall make every reasonable effort to acquire the ROW expeditiously by negotiation.
Consultant shall give property owners reasonable opportunity to consider the offer (statutorily 40
calendar days) and to present material the owner believes is relevant to determining the value of
the property. Consultant shall attempt to negotiate an approved administrative settlement, but
shall not advance the time of condemnation, or defer negotiations or condemnation or the deposit
of funds with the court, or take any other coercive action in order to induce an agreement on the
price to be paid for the property (49 CFR 24.102(h)).
• IF the OFFER Is ACCEPTED, Consultant shall obtain escrow services from a local title
company for permanent acquisitions and coordinate closing transactions between the title
company and the City. Consultant shall forward all signed Temporary Construction
Easements to the City for processing.
• IF a COUNTER OFFER is received, Consultant shall submit the proposed COUNTER OFFER
(exceeding the estimate of just compensation) with a justification letter and owner supplied
supporting documentation to City for approval. If accepted see above.
• IF an acceptable agreement is not reached, Consultant shall prepare and submit a
Recommendation for Condemnation.
Consultant shall continue documenting the Report of Personal Interview for each file. The Report
of Personal Interview must include contact with property owners, owner's attorneys and occupants;
efforts to achieve amicable settlements; owners' suggestions for changes in plans; responses to
owners' counterproposals etc. j~
Task C9.6 Condemnation Process Assistance CONTINGENCY TASK
After good faith effort has been made to acquire ROW at the City's determination of just
compensation, if settlement with the property owner(s) is NOT reached, Consultant shall:
• With City authorization, send Final Offer letter to the property owner in accordance
with the ROW Manual.
• Provide information and clarification to City and City in support of mediation and
condemnation proceedings, and assist property owner with any relocation according
to the Consultant Services Guide.
Note: City will initiate Condemnation proceedings.
Assumptions:
• The Minimum Payment Offer will be used for temporary construction easements associated
with the reconstruction of ADA ramps only.
• The Minimum Payment Offer will be $500 and will not require valuation services.
a
January 24, 2018
Page 22 j i ENV RNG
E
• There is no Relocation on this project. If Relocation services are needed the scope and
budget will be adjusted accordingly.
• There are up to 10 potential Minimum Payment Offer files and 5 potential permanent
easement files that have been identified.
i
• OBEC to provide title reports.
• Escrow services and title insurance are necessary for Permanent acquisitions only. OBEC
Minimum Payment Offer files will require a Trio or information from the Assessor's website
only.
• Temporary Construction Easements will not be recorded.
• The City will make payment to property owners and record documents if needed.
• OBEC will complete the legal descriptions.
• Rates subject to annual escalation.
Task 10 PREPARE PRELIMINARY DESIGN PACKAGE
Task 10.1 Prepare Preliminary Plans
Preliminary design of the project shall include location/layout of new curbs, sidewalks including
ADA ramps, driveways as necessary, paving limits, and storm drain modifications. The design
shall also indicate the location for additional signing and striping necessary to meet current
standards for each intersection (see task 8.2 for more details).
Consultant shall produce preliminary plan sheets displaying the design to approximately a 30%
level of completeness. Up to 14 plan sheets and 25 ADA ramp detail sheets will be produced in
1 1" x 17" format with a 40 scale and submitted on paper and electronically (pdf) for review to
the City. Construction details, staging plans, and erosion & sediment control plans will not be
submitted with the preliminary design package. The design package will be reviewed by the
City, and the City will provide written review comments, as necessary.
Deliverable(s)/Schedule:
• OBEC shall provide the City with two (2) paper copies and a PDF of the items above
for review and comment.
i
Task 10.2 Prepare Preliminary Quantities/Cost Estimate
OBEC shall calculate estimated construction quantities and generate a Preliminary Engineer's Cost
Estimate to accompany the Preliminary plans for review and comment by the City Staff.
I
Task 10.3 Preliminary Independent Design Check/Review
According to OBEC policy and procedures, OBEC shall conduct an independent QA/QC review of I
all design deliverables and quantities prepared and submitted to the City. Documentation of this )
internal review will be kept in OBEC's project files and will be available to the City upon request.
u
(
January 24, 2018
Page 23
' COAISULANG
ENGINEERS
1 MO.,
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TASK 11 PREPARE ADVANCED PLANS, SPECS & COST ESTIMATE
Task 11.1 Prepare Advanced Plans
OBEC will prepare and submit Advance (90%) contract plans for review by City Staff. City
feedback from the preliminary design will be incorporated into the Advance Plans. OBEC will
incorporate City of Ashland standard details into the drawing set, as needed. For budgeting
purposes, it is anticipated that the Advance and Final Plans will consist of the following list of 1 1"
x 17" plan sheets: I
Title Sheet 1 sheet
Index Sheet 1 sheet
Typical Sections 2 sheets
Construction Details 2 sheets
ADA Ramp Details 25 sheets
Traffic Control Plans/Details 13 sheets
Pipe Data Sheet 1 sheet
General Construction & Utility Plan 10 sheets
Drainage Design & Detail Plans 2 sheets
Illumination, Permanent Signing &
Pavement Marking Plans 13 sheets (Task 8.1) 16 sheets (Task 8.2)
Erosion Control Plan/Details 9 sheets
Total 82 sheets
Deliverable(s)/Schedule:
• OBEC shall provide the City with two (2) paper copies and a PDF of the above items for
review and comment per the project schedule. OBEC shall provide responses to the City's
preliminary comment log.
Task 11.2 Prepare Advanced Quantities/Cost Estimate
OBEC shall calculate detailed construction quantity estimates and generate a detailed Engineer's
Cost Estimate to accompany the Advanced plans.
Task 11.3 Prepare Advanced Specifications
OBEC shall prepare bid book including draft specifications and special provisions for the
purposes of bidding. Specifications shall conform to the 2018 Oregon Standard Specifications for
Construction.
Task 11.4 Advanced Independent Design Check/Review
According to OBEC policy and procedures, OBEC shall conduct an independent QA/QC review of
all design deliverables and quantities prepared and submitted to the City. Documentation of this
internal review will be kept in OBEC's project files and will be available to the City upon request.
January 24, 2018
Page 24 r C(M I
TASK 12 PREPARE FINAL PLANS, SPECS & COST ESTIMATE
Task 12.1 Prepare Final Plans
OBEC will prepare and submit final contract plans for the purposes of bidding. City feedback
from the Advanced plans up to one set of comments will be incorporated into the final plans. All
plan sheets will be produced in 1 1" x 17" format and submitted on Mylar film.
Task 12.2 Prepare Final Quantities/Cost Estimate
OBEC shall calculate detailed construction quantity estimates and generate a detailed Engineer's
Cost Estimate to accompany the final plans.
Task 12.3 Prepare Final Specifications
OBEC shall prepare bid book including final specifications and special provisions for the purposes
of bidding. Specifications shall conform to the 2018 Oregon Standard Specifications for
Construction and the City Standards.
Task 12.4 Final Independent Design Check/Review
According to OBEC policy and procedures, OBEC shall conduct an independent QA/QC review of
all design deliverables and quantities prepared and submitted to the City. Documentation of this
internal review will be kept in OBEC's project files and will be available to the City upon request.
TASK 13 BIDDING ASSISTANCE
Task 13.1 Pre-bid Meeting
OBEC will conduct one on-site pre-bid meeting to allow contractors to ask questions and fully
understand the project requirements.
Task 13.2 Bidder Questions and Addendums
OBEC shall assist the City during the bidding process by answering contractor questions and
preparing addenda, as necessary.
Task 13.3 Bid Evaluation
OBEC shall assist the City in securing construction bids for a contractor to perform the relocation
work. OBEC will contact contractors approved by the City to invite them to bid. The City will be
responsible for advertisement and receipt of all bids. OBEC will produce a bid tabulation and
assist the City with evaluation of bids.
January 24, 2018
Page 25 ' CM5ULANG
ENGINEERS
Estimated Fee
OBEC proposes to perform this scope of services on a time-and-materials basis for a cost not to
exceed $490,000.44, and contingency tasks if released by the City, in the amount of
$ 137,525.64 as shown in the attached spreadsheet of estimated labor costs and expenses. These
costs are in accordance with and based upon OBEC's 2018 Standard Billing Rates, also attached.
We hope that this proposal provides you with the information you require at this time. We look
forward to working with you on this project.
Sincerely,
~.^4 ~CU+1
Jaime Jordan, PE
Project Manager
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OBEC Consulting Engineers
City of Ashland Jonuery 25, 2013
ESTIMATED COST
Horsey St. Retonalruclion - N. Mountain Ava. to N. Main -St. EXHIBIT A
OBEC Job No. x6494029
TAIY M•e DM•lan Iry1w...S Dyln«rf 11YYrT 01vrJ.n tmnn..wwrM DI.IJaw rnl•e sanayar• gr.lllar Gnnrualwr x'ri«r
M.•err! S G nMri AW.W1 Sr.rl.llrrl Mrrt•rl 1«wlwl Swv.r Tali fVrr.Y T«)r2 SW«vl«r CID D«Ir«0 gfh.wNp«•r r 1 A«IwreMl«Mr / moms WOw DKf
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TASKS t« __nq.M MS e0 to
ID S_D .Cex
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iSMara.raRr+m I l • So Ia s0
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so _ sa z? se,?iam
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t.l rwn I.rMmm«r 5waar a Fa.arnga r0 q
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30 f0 3o $1.2,00
f.l lurRR rra c4a.enarMn z y - -
TAfK a O+araAwd GNpI<11wrnM D.+ n srKk«
76 s0 io So so Igoo
6.1 Slw a«mcloo.a F.a:woter odl Wr111m _
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U Gadra,i<a10.a0n So•M« o So +00.00 to s ?xm
U.l Oaa•rnrknr sra 0 _ _ _}G'OC ._.Y, f0 3CD0
e].S G.nr.n.e-er D.. R 0 _
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TAfR• .u bMRN rMn 0
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r.l rrarnaw. Aelwel.r r ROE
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to
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=
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li.l he2N M••r F2
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e e e
la.s l«s (.24x22, x ~ , =a _-so u so uoum
f0 so to 1n,1'im
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ro t110ee 30,0>x 31?O1S 115,?4? 30.004 f5,v(0 ur,>1Om fSS.elf.m pA0p.o0 H>S,efi.m
wsattAnrout uren3«. tl4]o.4t
TOTAL OYC r11OS(CT tTTIIMT(. ser0.00r,N
Total EtliTlleled Cotfs = 5~90,000.M
D«IM CwMelrn
rwr.aM« re mneq.. z ap.
re«t<«..r 236 aK«•
x2!2.1 r+.n~rL ,4 fOLS n,r
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OBEC Consulting Engineers
City of Ashland ESTIMATED COST Jon.ro 25, 2018
Hersey St. REN:Onst-bon - N. Mountain Ave. to N. Main St. EXHIBIT A OEEC Job No. P64""
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nIC
TASK
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TASK -1-- '?ICCVI.NG!nCT'.ISKI /•IUY'•E 'Um~ar 1 rb le A SD W SD 3]e11J:0
x.s.] 4«II•w.., 3.. 0 W ]0 so 30m
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O.1 D':T oW fmp•rrr+•..al Canra_Hr •••m:r CON`NOE.VCY TASK 10 tl 6 3 W 17 Sm
I 11
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CAe'IDR IaEwvrw W f0 30 Wm
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0 SO 3]I~OAo SO SS.tTOm
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halnrYlY,un Peym.m qlm lCOnTVGENCY TASK SO W S]esSm 1]+S5m
0 SO SO f^Oa~1„C S'+O,Oe3O0
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IW{paAN10Vt COMIMOINCT SSI•INSIt. SL,SM.N
-Al Oe1C CO- ISTtNAT1. IS),SS-
Tetal Estimohd Comingency Costs = $137,S25.64
c.rrNrvu.,r
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(CCj- E- •IMEtI•.Trr's
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Te1el Es3ilnsEe[I Casts Intl diEj Cefltin9eesies = $627,525.00
tasl Pr3Re¢tlJerMtB-t:ta PEA hp32W2 Oetce WC
DOC - tlDe.be3
Council Business Meeting
February 6, 2018
Title: Approval of Contract for Professional Recruitment Services with
Springsted Waters
From: Tina Gray Human Resource Director
Tina.gray@ashland.or.us
Summary:
This item is for approval of a contract for services with Springsted Waters for recruitment of a
city administrator. The total cost for an all-inclusive recruitment is $24,500. While this contract
amount does not require formal Council approval, at the December 5, 2017, meeting Council
requested the opportunity to review and approve the contract award.
Actions, Options, or Potential Motions:
I move that Council, acting as the Local Contract Review Board, approve a contract for $24,500
with Springsted Waters for professional recruitment of a city administrator.
Staff Recommendation:
Staff recommends approval of the contract.
Resource Requirements:
Funds for this recruitment are allocated in the BN2017-19 budget.
Policies, Plans and Goals Supported:
N/A
Backl4round and Additional Information:
At the December 5, 2017, business meeting, Council directed staff to begin a recruitment process
for the City Administrator. Staff received proposals from five qualified firms wanting to assist
the City with our executive search. After a review of the proposals, staff selected Springsted
Waters for their commitment to pursue a diverse pool of candidates. Springsted Waters will
utilize their established networks to make direct and personal contact with prospective minority
and female candidates in order to encourage them to consider this opportunity in Ashland.
Additionally, Springsted Waters will provide an on-line survey designed to solicit public input
on the key community issues the new City Administrator will face once on the job. The survey
outcomes will assist in development of the recruitment brochure, as well as provide Council with
additional community input for consideration in the Strategic Planning process.
Attachments:
Contract with Springsted Waters
Page 1 of 1 CITY OF
-AS H LA N D
PROFESSIONAL SERVICES AGREEMENT
CONSULTANT: Springsted / Waters (hereinafter
"Consultant")
CITY OF CONSULTANT'S CONTACT: Art Davis, Senior Vice
-AS H LA N D President
20 East Main Street
Ashland, Oregon 97520 ADDRESS: 9229 Ward Parkway, Suite 104
Telephone: 541/488-6002 Kansas City, MS 641 14
Fax: 541/488-5311
TELEPHONE: (816) 868-7042
EMAIL: adavisAspringsted.com
This Professional Services Agreement (hereinafter "Agreement") is made by and between the City of
Ashland, an Oregon municipal corporation (hereinafter "City") and Springsted Incorporated, a domestic
business corporation, dba Springsted/Waters Executive Recruitment ("hereinafter "Consultant") for
Professional Recruitment Services for a City Administrator.
NOW THEREFORE, in consideration of the mutual covenants contained herein the City and
Consultant hereby agree as follows:
1. Scope of Work: Consultant will provide professional services for an executive recruitment for the position
of City Administrator. This Agreement includes the Consultant's commitment to provide all phases of the
executive recruitment process as more fully described below and in the Consultant's Proposal dated
December 22, 2017, which is attached hereto as Exhibit C and incorporated herein. Consultant's services
during all phases of the recruitment process are collectively referred to herein as the "Work."
Phase Description of Professional Services, the "Work"
Phase I Task I - Candidate Profile Development/Advertising/Marketing (includes one day on
site by Project Team Leader).
Task 2 - Identify Quality Candidates.
Phase II Task 3 - Screening of Applications and Submission of Recommended Semi-Finalists
to Client. (includes one day onsite by Project Team Leader)
Task 4 - Reference Checks, Background Checks, and Academic Verifications.
Phase III Task 5 - Final Process/On-Site Interviews with Finalists (includes up to two days on
site by Project Team Leader).
Conclusion Acceptance of offer of employment by candidate.
2. Effective Date and Duration: This Agreement shall become effective on the date of execution on behalf
of the City, as set forth below (the "Effective Date"), and unless sooner terminated as specifically provided
herein, shall terminate upon the City's affirmative acceptance of Consultant's Work as complete and
Consultant's acceptance of the City's final payment therefore. Consultant's obligations shall be fully
performed on or before September 30, 2018.
Page 1 of 8: Professional Services Agreement with Springsted Incorporated
3. All Costs Borne By Consultant: Consultant shall, at its own risk and expense, perform the Work
described above and, unless otherwise specified in this Agreement, furnish all labor, equipment and
materials required for the proper performance of such Work.
4. Qualified Work: Consultant has represented, and by entering into this Agreement now represents, that all
personnel assigned to the Work to be performed under this Agreement are fully qualified to perform the
service to which they will be assigned in a skilled and worker-like manner and, if required to be registered,
licensed or bonded by the State of Oregon, are so registered, licensed and bonded.
5. Compensation: City shall pay Consultant the sum of $26,500.00 (twenty-six thousand and five hundred
dollars) as full compensation for Consultant's performance of all Work under this Agreement. City shall
pay Consultant $24,500.00 (twenty-four thousand and five hundred dollars) as an all-inclusive fee for all
phases of the professional recruitment services. In addition, the City shall pay Consultant $2,000.00 (two
thousand dollars) to conduct a web-based survey to determine key community-wide issues & priorities to be
considered in the selection of a new City Administrator. Payments shall be made within 30 days of the date
of receipt by the City of Consultant's invoice. Consultant shall bill the City in four installments as set forth
in Exhibit A, Consultant's Proposal. Should this Agreement be terminated prior to completion of all Work,
payments will be made for any phase of the Work completed and accepted as of the date of termination.
6. Ownership of Work/Documents: All Work product or documents produced in furtherance of this
Agreement belong to the City, and any copyright, patent, trademark proprietary or any other protected
intellectual property right shall vest in and is hereby assigned to the City.
7. Statutory Requirements: The following laws of the State of Oregon are hereby incorporated by reference
into this Agreement: ORS 27913.220, 27913.230 and 27913.235.
8. Living Wage Requirements: If the amount of this Agreement is $20,688.86 or more, Consultant is
required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined
in that chapter, to all employees performing Work under this Agreement and to any Subcontract who
performs 50% or more of the Work under this Agreement. Consultant is also required to post the notice
attached hereto as Exhibit B predominantly in areas where it will be seen by all employees.
9. Indemnification: Consultant hereby agrees to defend, indemnify and save City, its officers, employees and
agents harmless from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other
damages resulting from injury to any person (including injury resulting in death), or damage (including loss
or destruction) to property, of whatsoever nature arising out of or incident to the performance of this
Agreement by Consultant (including but not limited to, Consultant's employees, agents, and others
designated by Consultant to perform Work or services attendant to this Agreement). However, Consultant
shall not be held responsible for any losses, expenses, claims, subrogations, actions, costs, judgments, or
other damages, caused solely by the negligence of City.
10. Termination:
a. Mutual Consent. This Agreement may be terminated at any time by the mutual consent of both
parties.
b. City's Convenience. This Agreement may be terminated by City at any time upon not less than
30 (thirty) days' prior notice in writing and delivered by certified mail or in person.
C. For Cause. City may terminate or modify this Agreement, in whole or in part, effective upon
delivery of written notice to Consultant, or at such later date as may be established by City under any of
the following conditions:
i. If City funding from federal, state, county or other sources is not obtained and continued
Page 2 of 8: Professional Services Agreement with Springsted Incorporated
at levels sufficient to allow for the purchase of the indicated quantity of services;
ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such
a way that the services are no longer allowable or appropriate for purchase under this
Agreement or are no longer eligible for the funding proposed for payments authorized by
this Agreement; or
iii. If any license or certificate required by law or regulation to be held by Consultant to
provide the services required by this Agreement is for any reason denied, revoked,
suspended, or not renewed.
d. For Default or Breach.
i. Either City or Consultant may terminate this Agreement in the event of a breach of the
Agreement by the other. Prior to such termination the party seeking termination shall
give to the other party written notice of the breach and its intent to terminate. If the party
committing the breach has not entirely cured the breach within 15 (fifteen) days of the
date of the notice, or within such other period as the party giving the notice may
authorize in writing, then the Agreement may be terminated at any time thereafter by a
written notice of termination by the party giving notice.
ii. Time is of the essence for Consultant's performance of each and every obligation and
duty under this Agreement. City by written notice to Consultant of default or breach
may at any time terminate the whole or any part of this Agreement if Consultant fails to
provide services called for by this Agreement within the time specified herein or within
any extension thereof.
iii. The rights and remedies of City provided in this subsection (d) are not exclusive and are
in addition to any other rights and remedies provided by law or under this Agreement.
e. Obligation/Liability of Parties. Termination or modification of this Agreement pursuant to
subsections a, b, or c above shall be without prejudice to any obligations or liabilities of either party
already accrued prior to such termination or modification. However, upon receiving a notice of
termination (regardless whether such notice is given pursuant to Subsection a, b, c, or d of this section,
Consultant shall immediately cease all activities under this Agreement, unless expressly directed
otherwise by City in the notice of termination. Further, upon termination, Consultant shall deliver to
City all Agreement documents, information, works-in-progress and other property that are or would be
deliverables had the Agreement been completed. City shall pay Consultant for work performed prior to
the termination date if such work was performed in accordance with the Agreement.
11. Independent Contractor Status: Consultant is an independent contractor and not an employee of the City
for any purpose. Consultant shall have the complete responsibility for the performance of this Agreement.
Consultant shall provide workers' compensation coverage as required in ORS Chapter 656 for all persons
employed to perform Work pursuant to this Agreement. Consultant is a subject employer that will comply
with ORS 656.017.
12. Assignment: Consultant shall not assign this Agreement or subcontract any portion of the Work without
the written consent of City. Any attempted assignment or subcontract without written consent of City shall
be void. Consultant shall be fully responsible for the acts or omissions of any assigns or subcontractors and
of all persons employed by them, and the approval by City of any assignment or subcontract of the Work
shall not create any Contractual relation between the assignee or subcontractor and City.
Page 3 of 8: Professional Services Agreement with Springsted Incorporated
13. Default. The Consultant shall be in default of this Agreement if Consultant: commits any material breach
or default of any covenant, warranty, certification, or obligation under the Agreement; institutes an action
for relief in bankruptcy or has instituted against it an action for insolvency; makes a general assignment for
the benefit of creditors; or ceases doing business on a regular basis of the type identified in its obligations
under the Agreement; or attempts to assign rights in, or delegate duties under, this Agreement.
14. Insurance. Consultant shall, at its own expense, maintain the following insurance:
a. Worker's Compensation insurance in compliance with ORS 656.017, which requires subject
employers to provide Oregon workers' compensation, coverage for all their subject workers
b. Professional Liability insurance with a combined single limit, or the equivalent, of not less than
$2,000,000 (two million dollars) per occurrence. This is to cover any damages caused by error, omission
or negligent acts related to the professional services to be provided under this Agreement.
C. General Liability insurance with a combined single limit, or the equivalent, of not less than
$2,000,000 per occurrence for Bodily Injury, Death, and Property Damage.
d. Automobile Liability insurance with a combined single limit, or the equivalent, of not less than
1,000,000 (one million dollars) for each accident for Bodily Injury and Property Damage, including
coverage for owned, hired or non-owned vehicles, as applicable.
e. Notice of cancellation or change. There shall be no cancellation, material change, reduction of
limits or intent not to renew the insurance coverage(s) without 30 days' prior written notice from the
Consultant or its insurer(s) to the City.
f. Additional Insured/Certificates of Insurance. Consultant shall name the City of Ashland,
Oregon, and its elected officials, officers and employees as Additional Insureds on any insurance
policies, excluding Professional Liability and Workers' Compensation, required herein, but only with
respect to Consultant's services to be provided under this Agreement. The consultant's insurance is
primary and non-contributory. As evidence of the insurance coverages required by this Agreement, the
Consultant shall furnish acceptable insurance certificates prior to commencing the Work under this
Agreement. The certificate will specify all of the parties who are Additional Insureds. Insuring
companies or entities are subject to the City's acceptance. If requested, complete copies of insurance
policies; trust agreements, etc. shall be provided to the City. The Consultant shall be financially
responsible for all pertinent deductibles, self-insured retentions, and/or self-insurance.
15. Nondiscrimination: Consultant agrees that no person shall, on the grounds of race, color, religion, creed,
sex, marital status, familial status or domestic partnership, national origin, age, mental or physical
disability, sexual orientation, gender identity or source of income, suffer discrimination in the performance
of any Work under this Agreement when employed by Consultant. Consultant agrees to comply with all
applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations.
Further, Consultant agrees not to discriminate against a disadvantaged business enterprise, minority-owned
business, woman-owned business, a business that a service-disabled veteran owns or an emerging small
business enterprise certified under ORS 200.055, in awarding subcontracts as required by ORS 279A.I 10.
16. Consultant's Compliance With Tax Laws:
16.1 Consultant represents and warrants to the City that:
16.1.1 Consultant shall, throughout the term of this Agreement, including any extensions hereof,
comply with:
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(i) All tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS
Chapters 316, 317, and 318;
(ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable
to Consultant; and
(iii) Any rules, regulations, charter provisions, or ordinances that implement or enforce any
of the foregoing tax laws or provisions.
16.1.2 Consultant, for a period of no fewer than six (6) calendar years preceding the Effective
Date of this Agreement, has faithfully complied with:
(i) All tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS
Chapters 316, 317, and 318;
(ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable
to Consultant; and '
(iii) Any rules, regulations, charter provisions, or ordinances that implement or enforce any
of the foregoing tax laws or provisions.
16.2 Consultant's failure to comply with the tax laws of the State of Oregon and all applicable tax laws of
any political subdivision of the State of Oregon shall constitute a material breach of this Agreement.
17. Governing Law; Jurisdiction; Venue: This Agreement shall be governed and construed in accordance
with the laws of the State of Oregon without resort to any jurisdiction's conflict of laws, rules or doctrines.
Any claim, action, suit or proceeding (collectively, "the claim") between the City and the Consultant that
arises from or relates to this Agreement shall be brought and conducted solely and exclusively within the
Circuit Court of Jackson County for the State of Oregon. If, however, the claim must be brought in a
federal forum, then it shall be brought and conducted solely and exclusively within the United States
District Court for the District of Oregon filed in Jackson County, Oregon. Consultant, by its signature
hereon of its authorized representative, hereby consents to the in personam jurisdiction of said courts. In no
event shall this section be construed as a waiver by City of any form of defense or immunity, based on the
Eleventh Amendment to the United States Constitution, or otherwise, from any claim or from the
jurisdiction.
18. THIS AGREEMENT AND THE ATTACHED EXHIBITS CONSTITUTE THE ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT,
MODIFICATION OR CHANGE OF TERMS OF THIS AGREEMENT SHALL BIND EITHER PARTY
UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT,
MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC
INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS,
AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN
REGARDING THIS AGREEMENT. CONSULTANT, BY SIGNATURE OF ITS AUTHORIZED
REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
19. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds currently
available and authorized for expenditure to finance the costs of this Agreement within the City's fiscal year
budget. Consultant understands and agrees that City's payment of amounts under this Agreement
Page 5 of 8: Professional Services Agreement with Springsted Incorporated
attributable to Work performed after the last day of the current fiscal year is contingent on City
appropriations, or other expenditure authority sufficient to allow City in the exercise of its reasonable
administrative discretion, to continue to make payments under this Agreement. In the event City has
insufficient appropriations, limitations or other expenditure authority, City may terminate this Agreement
without penalty or liability to City, effective upon the delivery of written notice to Consultant, with no
further liability to Consultant.
20. Certification. Consultant shall sign the certification attached hereto as Exhibit A and herein incorporated
by this reference.
PRINGSTEDIWATERS (CONSULTANT): CITY OF ASHLAND:
By: By:
Signature Department Head
Printed Name Printed Name
Title Date
Date
(3'x9 is to be submitted with this signed
Agreement.) Purchase Order No.
Page 6 of 8: Professional Services Agreement with Springsted Incorporated
EXHIBIT A
CERTIFICATIONS/REPRESENTATIONS: Consultant, by and through its authorized representative, under
penalty of perjury, certifies that (a) the number shown on the attached W-9 form is its correct taxpayer ID (or is
waiting for the number to be issued to it and (b) Consultant is not subject to backup withholding because: (i) it
is exempt from backup withholding, or (ii) it has not been notified by the Internal Revenue Service (IRS) that it
is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has
notified it that it is no longer subject to backup withholding. Consultant further represents and warrants to City
that: (a) it has the power and authority to enter into and perform the Work, (b) the Agreement, when executed
and delivered, shall be a valid and binding obligation of Consultant enforceable in accordance with its terms, (c)
the work under the Agreement shall be performed in accordance with the highest professional standards, and (d)
Consultant is qualified, professionally competent, and duly licensed (if applicable) to perform the Work.
Consultant also certifies under penalty of perjury that its business is not in violation of any Oregon tax laws, it
is an independent contractor as defined in the Agreement, it is authorized to do business in the State of Oregon,
and Consultant has checked four or more of the following criteria that apply to its business.
(1) Consultant carries out the work or services at a location separate from a private residence or is in
a specific portion of a private residence, set aside as the location of the business.
(2) Commercial advertising or business cards or a trade association membership are purchased for
the business.
(3) Telephone listing is used for the business separate from the personal residence listing.
(4) Labor or services are performed only pursuant to written contracts.
(5) Labor or services are performed for two or more different persons within a period of one year.
(6) Consultant assumes financial responsibility for defective workmanship or for service not
provided as evidenced by the ownership of performance bonds, warranties, errors and omission
(professional liability) insurance or liability insurance relating to the Work or services to be
provided.
Consultant Date
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CITY OF ASHLAND, OREGON
City of Ashland
LIVING
WAG
per hour effective June 30, 2017
(Increases annually every June 30 by the
Consumer Price Index)
portion of business of their 401 K and IRS eligible
employer, if the employer has cafeteria plans (including
ten or more employees, and childcare) benefits to the
has received financial amount of wages received by
assistance for the project or the employee.
For all hours worked under a business from the City of
service contract between their Ashland in excess of ➢ Note: "Employee" does not
employer and the City of $20,688.86. include temporary or part-time
Ashland if the contract employees hired for less than
exceeds $20,688.86 or more. ➢ If their employer is the City of 1040 hours in any twelve-
Ashland including the Parks month period. For more
➢ For all hours worked in a and Recreation Department. details on applicability of this
month if the employee spends policy, please see Ashland
employee's or more of the ➢ In calculating the living wage, Municipal Code Section
employee's time in that month employers may add the value 3.12.020.
working on a project or of health care, retirement,
additional For Call the Ashland City Administrator's office at 541-488-6002 or write to the City Administrator, City Hall,
20 East Main Street, Ashland, OR 97520 or visit the city's website at www.ashland.or.us.
Notice to Employers: This notice must be posted predominantly in areas where it can be seen by all
employees.
CITY OF
ASHLAND
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i
Proposal
City of Ashland, Oregon
Professional Recruitment Services for a City Administrator
December 22, 2017
Springsted I Waters Art Davis, Senior Vice President Remittance Address
9229 Ward Parkway, Suite 104 adavis(cDspringsted.com 380 Jackson Street, Suite 300
Kansas City, Missouri 64114 (816) 868-7042 Saint Paul, Minnesota 55101-2887
LETTER OF TRANSMITTAL
December 22, 2017
Ms. Tina Grey, Human Resources Director
City of Ashland
20 East Main Street
Ashland, OR 97520
Re: Request for Proposal to Provide Professional Recruitment Services
Dear Ms. Grey,
I appreciate the opportunity to submit our proposal for executive recruitment services for the City of Ashland's next
City Administrator. Our extensive experience in providing executive recruitment services to cities, counties and
other public sector organizations nationwide will be beneficial for this recruitment and allow us to find the ideal
candidate for the City of Ashland. We know that you have options for using other recruitment firms. However,
we believe that our approach sets us apart from our competitors in the following unique ways:
• Commitment to a Successful Recruitment is Guaranteed - Springsted Waters (SIW) will be aggressive and responsive
to you - the client - and with prospective applicants using an approach of "doing whatever it takes to get the job done
right!" Please notice our "Triple Guarantee" referenced in this Proposal;
• Focused Strategy for Success - S1 W recommends advertising and recruiting nationally, but would also focus on making
contact with city management professionals currently working in Oregon and in some of the surrounding states, believing
that a regional focus can sometimes bring in candidates more knowledgeable about the nuances of working in your state
and in the Northwest region of the U.S. An example of a professional recruitment brochure that will be created for
Ashland's city administrator search process can be viewed by clicking on the following link: BROCHURE;
• Talented and Experienced Recruitment Consultants - SJ W's project recruitment team is outstanding! This firm has
had success working with the City of Ashland in the past, and has provided executive recruitment and human resources
related services to local governments for over 30 years. Our current team has had tremendous success working on recent
recruitments throughout the country and we encourage you to contact our references. The professional experience for our
consultants includes three former city managers/administrators, a former police chief and a former school superintendent
of schools. The result - a cohesive and highly experienced consultant team that possesses a thorough and detailed
understanding of the leadership, experience, training and certifications required for this position, which ultimately benefits
the client with a more targeted and qualified pool of candidates;
• Video Interviews to Screen Semi-finalists- SJW uses a proprietary on-line video interview process to assist the City in
narrowing down semi-finalists to a smaller group for on-site interviews. This unique on-line video system is part of the
all-inclusive fee to better assist in screening candidates, and can possibly reduce costs by eliminating unnecessary travel
expenses for on-site interviews:
• Leadership Assessment of Finalists - SIW will conduct a candidate strengths assessment and management / leadership
style testing, which some refer to as "personality and behavioral stvle testing." This assessment is completed on-line by
the finalists prior to on-site interviews and determines if a candidate's management style matches the Profile created by the
City in an effort to find the `-ideal" candidate and determine whether each candidate is a good fit for the organization and
community:
SpringstedlWatel -
. I i } ,I r, . City of Ashland, OR. Proposal to Provide Professional Recruitment Services.
• Comprehensive Vetting of Finalists (Includes Social Media Search) - SJW's multiple layered vetting process of
screening candidates will provide a qualified pool of individuals to consider for each position with not only the skills and
experience desired, but most importantly, a leadership and management style that best fits the organization and community.
The screening includes detailed candidate questionnaires, video interviews, leadership and strengths assessment, candidate
background checks including criminal, civil, driving record, academic and employment verification, a Nexus search that
includes a comprehensive report on each candidate's media and on-line presence, and a comprehensive reference report on
all finalists prior to interviews occurring. (Note. SSW must conduct these background checks for the °7riple Guarantee" to
remain in effect);
• Commitment to Pursue a Diverse Pool of Candidates - SJW will take responsibility for ensuring diversity in our
candidate pools. In these recruitments, we will use our established networks to make direct and personal contact with
prospective minority and female candidates and encourage them to consider an opportunity with Ashland. Springsted
Waters is a WBE; and,
• Efficient Online Application and Communication Process - We utilize a proprietary online application system
exclusively licensed to SIW to facilitate talent management. The system has been designed by SIW to customize applicant
flow and tracking. Outstanding candidates from around the country routinely search our site for available and newly
posted city management positions. The site also allows our firm to communicate easily with applicants, and provides us
the ability to conduct database inquiries for qualified candidates based on characteristics important to the city of Ashland.
Finding candidates with the desired levels of experience and specific knowledge of local government management
trends can sometimes be challenging. A significant part of our job is to ensure that your next city administrator is
a "great fit" for the City of Ashland organization and community. My background as a former city manager and
nearly 13 years of experience in recruiting municipal executives and leaders will provide valuable insight for the
City Council throughout this recruitment process.
The proposal document will provide you the details about our approach, expertise, client references and pricing
for this executive recruitment. If you have any questions, please contact me at (816) 868-7042 or by email at
adavis a springsted.com. Our Team would consider it a professional privilege to provide these services to the City
of Ashland.
Respectfully submitted,
Art Davis, Senior Vice President and Consultant
City of Ashland, OR
Proposal to Provide Professional Recruitment Services
General Information
The Executive Recruitment Division of Waters Consulting merged with Springsted Incorporated in May 2014, establishing
one of the largest public sector executive recruitment and human capital consulting-firms in the United States. Our firm
name, Waters & Company, has recently been changed to Springsted I Waters (SI W) to more clearly reflect the connection
to and support from the Springsted group of companies. Springsted Incorporated, our parent company, has been a Women
Business Enterprise since 1993. Three employee-owners lead the Springsted group of firms and their 70-member staff.
Our corporate office is located in Saint Paul, Minnesota, with regional offices located in Dallas, Texas; Chicago, Illinois;
Milwaukee, Wisconsin; Des Moines, Iowa; Kansas City, Missouri; Richmond, Virginia; Atlanta, Georgia; and Denver,
Colorado. The SJW Recruitment Project Team will partner with the Human Resources Department, City Council and
designated staff as your technical advisor to ensure that the recruitment process for your next City Administrator is
conducted in a thorough and professional manner. Our objective is to generate high-quality candidates and assist you with
the screening and evaluation of these candidates.
Approach and Timeline
Approach
The search will be conducted out of our Kansas City, Missouri office. Art Davis will serve as the Recruitment
Project Team Leader. Our proven process includes five major tasks:
1. Recruitment brochure development and advertising
Springsted I Water
? r City of Ashland, OR. Proposal to Provide Professional Recruitment Services 2i
• Meetings with the City's leadership and key stakeholders to understand the City's needs as well as its strategic
directions and expectations
2. Execution of recruitment strategy and identification of quality candidate
• Aggressive recruitment and direct contact with prospective candidates
• Interactive searchable applicant database
• Utilization of an applicant tracking system
3. Screening of applications, recommendation of semi-finalists and selection of finalists
• Candidate questionnaires provide in-depth information
• Due diligence questions and review of candidate's web and internet presence
• Management/leadership style and strengths assessment (personality and behavior analysis) to determine if there is a fit
with the approved management/leadership profile established by the Human Resources Department and City Council
in order to identify the ideal candidate
• Video interview responses provided by each semi-finalist candidate
• Semi-finalists booklet of the top candidates
• Selection of 3 - 5 finalists by the City
4. Conducting background checks (criminal, civil, credit, and driving record), reference checks and academic
verifications
• Background records. checks and academic verification
• References
5. Final interview process
• Interview design, coordination, attendance and support
• Employment offer - assistance and feedback
Timeline
Below is an estimated Timeline for the executive recruitment process. You will be asked during the first on-site
meeting to review and approve a Timeline for the recruitment project. It is our intent to conduct the recruitment
expeditiously, but not at the expense of finding high-quality candidates for you.
CITY OF ASHLAND, OR
PRELIMINARY TIMELINE
The following Timeline represents a preliminary schedule for your executive recruitment based on a commencement date of
Wed., Jan. 10, 2018. (Commencement of the project is contingent upon contract approval prior to the first consultant on-site
visit.) Actual target dates will be developed in consultation with and approved b the City.
Project Milestone Deliverables Target Date
• S1W completes on-site meetings to develop candidate
profile/brochure, City approves ad/timeline.
Profile development, advertising . S1W sends draft recruitment brochure to the City. Jan. 10 - Mar. 5
and candidate outreach. • City returns draft brochure (with edits) to SSW.
• S1W commences recruitment ads & marketing.
Online data collection and profile development.
• S1W commences review of applications; sends qualified
applicants Candidate Questionnaire for more info.
SSW completes formal review of applications and sends selected
Applicant screening and resumes & questionnaire responses to City for review.
assessment and recommendation Candidates' recorded interviews are presented. Mar. 5 -14
Semi-finalists complete candidate management style
of semi-finalists. assessment and responses are reviewed and interview questions
are developed.
S1 W meets w/City on March 14 & recommends semi-finalists;
City selects finalists for on-site interviews.
Comprehensive background check • S1W completes reference checks/background checks/ academic
and reference checks completed verification on finalists. Mar. 15 - 30
(Minimum of 10 working days to complete backgrounds)
for finalists. S 1W sends documentation for finalists to the City.
On-site Interviews with finalists. • The City conducts on-site interviews with finalists. Week of April 2
Employment offer made / accepted. • The City extends employment offer to selected candidate. Week of April
9
Springsted I Water
R 1 City of Ashland, OR. Proposal to Provide Professional Recruitment Services. 3
Proposed Costs and Guarantee
Proposed Costs
The all-inclusive professional fee to conduct the recruitment is provided below and includes the cost of professional services by
the Recruitment Project Team Leader, the project support staff and all project-related expenses such as advertising, preparation
of the recruitment brochure, printing, candidate background, reference and academic verification checks and travel expenses
for on-site visits. Travel expenses incurred by candidates for on-site interviews with the client are not the responsibility of SJW
and are handled directly by the client organization. The all-inclusive professional fee will be billed in four installments: 30%
of the fee will be billed at the beginning of the recruitment; 30% at the implementation of Phase 1; 30% at the implementation
of Phase 11; and 10% upon acceptance of an offer by the candidate. We are open to negotiate an alternative payment schedule
if selected for this recruitment. All questions regarding the professional fees and project-related expenses should be directed to
Art Davis, Senior Vice President at adavis cr springsted.com or via phone at (816) 868-7042.
PHASE DESCRIPTION OF PROFESSIONAL SERVICES FEES
Task 1 - Candidate Profile Development/Advertising/Marketing
Phase I (includes one day on site by Recruitment Project Team Leader)
Task 2 - Identify Quality Candidates
Task 3 - Screening of Applications and Submission of Recommended
Semi-Finalists to Client (includes one day on site by the Recruitment
Phase II Project Team Leader)
Task 4 - Reference Checks, Background Checks
and Academic Verifications
Phase III Task 5 - Final Process/On-Site Interviews with Finalists
includes two days on site b Recruitment Project Team Leader
Conclusion Acceptance of offer b candidate
TOTAL ALL-INCLUSIVE PROFESSIONAL FEE $24,500
OPTIONAL SERVICES FOR CONSIDERATION FEES
At the City's option, SSW will conduct a web-based survey to determine key community-wide issues &
priorities that could be considered in the selection of anew Administrator. This survey is completed by $2,000
community leaders, citizens, and employees and would alter the project timeline.
On rare occasions, SSW is asked to provide additional search services that are not included in this scope of
service or to provide more than three on-site visits to the City. Additional work specifically requested by the City $220 per hour
which is outside of the scope of this project will be invoiced at the hourly rate of $220 plus expenses. SJW will plus expenses
submit a written explanation of the additional services to be provided and the estimated hours that will be
required prior to commencing an additional services.
Triple Guarantee
Our Triple Guarantee is defined as: (1) A commitment to remain with the recruitment assignment until you have made an
appointment for the fees and tasks quoted in this proposal. If you are unable to make a selection from the initial group of finalists,
SSW will work to identify a supplemental group until you find a candidate to hire. (2) Your executive recruitment is guaranteed
for 24 months against termination or resignation for any reason. The replacement recruitment will be repeated with no additional
professional fee, but only for project-related expenses. Candidates appointed from within your organization do not qualify for
this guarantee. This guarantee is subject to further limitations and restrictions of your state laws. (3) SJW will not directly solicit
any candidates selected under this contract for any other position while the candidate is employed with your organization.
Springsted ( Water,
,f r , . i t ,T, f- City of Ashland, OR. Proposal to Provide Professional Recruitment Services. 4
IV. References
The following references are a sampling of executive recruitments completed during the last 24 months by Recruitment
Project Team Leader Art Davis & Executive Vice President Chuck Rohre.
City of El Dorado, KS (Pop. 13,000) City of Norwalk, IA (Pop. 10,000)
Recruitment Project: City Manager (Jan. 2017) Recruitment Project: City Manager (June 2016)
Mr. Vince Haines, Mayor Mr. Tom Phillips, Mayor
316-323-2535 515-771-8078
vhaines(@eldoks.com mayor(@norwalk.iowa.gov
City of Medford, OR (Pop. 77,677) City of Oldsmar, FL (Pop. 14,000)
Recruitment Project: City Manager (March 2016) Recruitment Project: City Manager (July 2017)
Ms. Lynette M. O'Neal, Executive Office Manager Mr. Dean O'Nale, Fire/EMS Chief (Project Leader for City)
541-774-2089 813-749-1200
lynette.oneal(a cityofinedford.org donale anmyoldsmar.com
Manatee County, FL (Pop. 342,106) Grand Rapids, MI (Pop. 210,000)
Recruitment Projects: County Administrator (Sept. 2017), & Recruitment Project: Fire Chief (June 2016)
Dir. of Redevelopment & Economic Opportunity (Sept. 2016) Ms. Mari Beth Jelks, Dir. of Admin. Services & HR Director
Mr. Rodney D. Barnes, HR Director 616-456-3166
941-748-4501 ext. 3813 mielks@,grand-rapids.mi.us
Rodney. Barnes@mymanatee.org
V. Recruitment Project Team
Recruitment Project Team Leader
Mr. Art Davis, Senior Vice President
Direct Phone: (816) 868-7042; Email: adavis(cvspringsted.com
Arthur (Art) Davis, Senior Vice President and Consultant with Springsted I Waters Executive Recruitment, has been with the
firm for nearly 3 years. Art also successfully launched and expanded his own local government consulting company providing
executive recruitment services for 10 years. As Associate Director for the Civic Council of Greater Kansas City, a 501 c4
nonprofit comprised of CEOs representing the largest companies in the region, Davis successfully assisted civic leaders in
developing and implementing a multi-year initiative to revitalize Downtown Kansas City, MO. For over six years, Art also
served as city manager of Lee's Summit, MO, a city recognized at the time as the "fastest growing" city in MO and the Greater
Kansas City region. Earlier positions of responsibility included working as an assistant administrator for Lenexa, KS, and
serving as Assistant to the Mayor of Dallas, TX.
Mr. Chuck Rohre, Executive Vice President
Direct Phone: (214) 466-2436; Email: crohre a~springsted.com
Chuck Rohre is Executive Vice President for Springsted I Waters Executive Recruitment, and is responsible for overseeing and
managing the firm's executive recruitment engagements to insure their integrity, timeliness and adherence to budget parameters.
Chuck has been a consultant in executive search since the early 1990s, and has been with the firm since 2006. He also served as
a Police Chief and Director of Public Safety for several North Texas municipalities with populations ranging from 9,000 to
200,000 plus.
Ms. Jenelle McDonald, Project Coordinator
Direct Phone: (214) 466-2445; Email: jmcdonaldla-sprinasted.com
Jenelle McDonald is a Project Coordinator with Springsted I Waters. She is responsible for supporting the lead consultants
throughout the entire scope of the recruiting process as well as providing administrative support to Executive Vice President,
Chuck Rohre. In this role, Jenelle designs/develops recruitment brochures, coordinates communications with candidates,
processes resumes and distributes candidate questionnaires. She is also responsible for providing support to candidates
regarding technical and logistical issues. She assists the consultants in scheduling semifinalist interviews, submitting profiles
for background checks, education verification, as well as notifying the finalists of project status. Her responsibilities extend to
editing presentations, advertisement placements and general office administration
Springsted 1 Water-,,-,, G
r r r City of Ashland, OR Proposal to Provide Professional Recruitment Services. of
U.I RE'r rUlttTl
Council Business Meeting
February 6, 2018
Title: Safety Training (Onsite for Public Works & Electric Utility Departments)
From: Thomas McBartlett Interim Director of Electric
thomas.mcbartlett(a)-ashland. or. us
From: Michael Morrison Public Works Superintendent
michael.morrisonC-ashland. or.us
Summary:
Approval is being requested for a contract award exceeding $100,000.00. A formal competitive
sealed proposal (Request for Proposal) is the required sourcing method for an acquisition of this
type greater than $100,000.00. There were many potential safety training vendors contacted by
telephone to inform them about the RFP, and subsequently, approximately 10 vendors and/or
interested individuals logged into the City's website bidding system to view the RFP for Safety
Training. A single proposal submitted by Evergreen Job & Safety Training, Inc. was received
and evaluated and determined by the City to substantially comply with the requirements and
criteria set forth in the Request for Proposal. A second proposal was received after closing (late).
In accordance with OAR 137-047-0460 we are not allowed to consider late proposals.
The City's intent is to award the contract for Safety Training (Onsite for Public Works & Electric
Utility Departments) to Evergreen Job & Safety Training, Inc. The contract will be for a term of
two (2) years with the option to renew the contract annually for up to three additional years for a
maximum term of five (5) years.
Actions, Options, or Potential Motions:
I move that the Council, acting as the Local Contract Review Board, approve the public contract
award to Evergreen Job & Safety Training, Inc. for Safety Training (Onsite for Public Works &
Electric Utility Departments).
Staff Recommendation:
Staff recommends the public contract for Safety Training (Onsite for Public Works & Electric
Utility Departments) be awarded to Evergreen Job & Safety Training, Inc.
Resource Requirements:
Public Works has budgeted $32,750 for FY 2018 and $32,750 for FY 2019.
Electric has budgeted $30,000 for FY 2018 and $30,000 for FY 2019.
Policies, Plans and Goals Supported:
N/A
Background and Additional Information:
Safety training classes to be provided are as follows:
Page Iof3 CITY OF
ASHLAND
NOTE: The following information is being provided to give you examples of the safety training classes that are
applicable now for each department. These lists are not inclusive. The actual safety training classes that are
scheduled may be subject to change depending on the department's needs and requirements at that time.
Electric Utility Department
i. CPR/First Aid/AED Training Public Works Department
2. Electrical Burns 1. CPR/First Aid/AED Training (30)
3. Energized Parts 2. CPR/First Aid/AED Training (30)
4. Job Observation 3. Back Safety
5. Substations 4. Job Observation
6. Underground Electrical Installations 5. Work Zone Traffic Control
7. Boom Truck & Crane Safety* Flagging
6. Excavations
8. Work Zone Traffic Control Flagger
9. ERP: Pole Top & Bucket Truck Rescue 7. Hand & Portable Power Tools
1o. Overhead Lines 8. Boom Truck & Crane Safety
11. De-energizing Lines & Equipment 9. ERP: Vault Rescue
(Lockout & Tagout lo. Safety Data Sheets
12. Hot Stick & Grounds Testing ]I. Bloodborne Pathogens
13. Voltage Regulations 12. Ladders and Fall Protection
14. Rigging
15. Heat Illness & Ladder Safety *There are no boom trucks in PW fleet. PW uses '/4
to '/2 ton jib hoist cranes and trolley cranes up to 4
16. Metering tons.
17. Capacitors
18. Personal Protective Equipment
*Electric fleet includes the following boom trucks and cranes:
1. 1998 Freightliner FL80 Terex Commander 4045
2. 2003 International 4300 Altec LRV55
3. 2003 Ford F550 Altec AT37G
4. 2005 Ford F550 Altec AT37G
5. 2008 International Line Truck Altec D3055ATR
6. 2011 International Line Truck Altec TA60
7. 2015 Ford F450 Altec AT30G
Safety training classes are required to be compliant with the Oregon OSHA and NEC rules
as follows:
• Division 1, General Administrative Rules
• Division 2, General Occupational Safety and Health Rules
• Division 3, Construction Rules
• NEC compliance training (Electric Utility)
• OSHA regulated 1910.269 categories (including telecommunications training)
The proposed cost for facilitating the monthly safety training classes with each department
and conducting two (2) onsite job observations, which provides an outside opinion on the
City's safe work practices, per department will be as follows:
Page 2 of 3 CITY OF
-ASHLAND
FIVE (5) YEAR CONTRACT ELECTRIC UTILITY PUBLIC WORKS
(16 Employees) (60 Employees)
YEAR I $2,377.28/Month $28,527.36 $2,434.24/Month $29,210.88
March 2018 - February 2019
YEAR 2 $2,472.37/Month $29,668.44 $2,531.61/Month $30,379.32
March 2019 - February 2020 (.+4% increase/Year 2) (+4% increase/Year 2)
YEAR3 $2,472,37/Month $29,668.44 $2,531.61/Month $30,379.32
March 2020 - February 2021
YEAR 4 $2,571.27/Month $30,855.24 $2.632.87/Month
March 2021- February 2022 (+4% increase/Year 4) (+4% increase/Year 4) $31,594.44
YEAR 5 $2,571.27/Month $30,855.24 $2,632.87/Month $31,594.44
March 2022 - February 2023
ELECTRIC PUBLIC
Total amount for 5-year contract: WORKS
$149,574.72 $153.158.40
Cost per month includes monthly safety training classes (one per department each month), job observations (two per
department each month), administration, training materials, record keeping, program development, insurance, travel, lodging,
meals, and any other expenses required to facilitate the required safety trainings andjob observations.
Attachments:
None
Page 3 of 3 CITY OF
ASHLAND
Council Business Meetin
February • 1
Title: Support for Clean Energy Jobs Bill
From: Adam Hanks Interim Asst. to the City Administrator
adam@ashland.or.us
Summary:
Attached are two sample forms of potential actions Council could take to communicate support
to the Oregon State Legislature for pending legislation initially labeled the "Clean Energy Jobs
Bill", originally reviewed by the legislature as Senate Bill 1070 and now proposed as LC 44
(Senate version) and LC 176 (House version).
Actions, Options, or Potential Motions:
1) I move approval of a resolution titled "A resolution in general support of State
Legislative Action regulating greenhouse gas emissions (GHG)".
Or
2) I move to authorize Mayor Stromberg to submit a letter of general support for State
Legislative Action regulating greenhouse gas emissions (GHG) on behalf of the Mayor
and Council.
Staff Recommendation:
Staff does not have a recommendation on this item. It is staff, s opinion, however, that in terms of
impact on decisions on this matter in the upcoming legislative session, approval to send a letter
of support would be just as effective as passage of a resolution.
Should Council choose to move forward with an indication of support, staff further recommends
that the language remain general/conceptual in nature as the previous SB 1070 will undoubtedly
undergo significant redrafting with many currently unknown regulatory and administrative
elements.
Resource Requirements:
N/A other than limited Administration Staff time.
Policies, Plans and Goals Supported:
While not specifically connected with an existing Council Goal, statewide regulations regarding
greenhouse gas emissions could have a significant positive impact on the City's ability to meet
the its local Climate and Energy Action Plan carbon mitigation goal of 8% annually. How the
regulations are ultimately structured will be of local significance as well, since the CEAP places
a priority on the social equity implications of any and all CEAP implementation.
Page 1 of 2 CITY OF
-ASHLAND
i
BacklZround and Additional Information:
City Climate, Electric Utility and Administration staff will be actively monitoring and
participating as this legislation moves forward through direct research and tracking as well as
through various associations of which the City is a member, including the Oregon Municipal
Electric Utilities (OMEU), Northwest Requirements Utilities (NRU), Northwest Energy
Coalition and other less formal climate action and sustainability groups and coalitions staff is
associated with.
Additionally, at its December 13, 2017, meeting, the Conservation Commission unanimously
approved a motion to encouraging the Mayor to sign a letter urging the state legislature to bring
forward a bill supporting clean energy jobs creation, in line with the City of Ashland's Climate
and Energy Action Plan goals.
Attachments:
Draft Support Resolution
Draft Support Letter
Oregon State Legislature - Clean Energy Jobs Work Groups
https://w-ww.ore~,onlei!islature.gov/helm/Pages/clean-ener,ti,.aspx
Page 2 of 2 CITY OF
ASHLAND
RESOLUTION NO. 2018-
A RESOLUTION IN GENERAL SUPPORT OF STATE LEGISLATIVE
ACTION REGULATING GREENHOUSE GAS EMISSIONS (GHG)
RECITALS:
A. City Council approved a community and municipal Climate and Energy Action Plan on
March 7, 2017
B. City Council adopted an ordinance containing an intent to achieve the greenhouse gas
reductions (mitigation) by eight percent per year on average consistent with the goal and
methodology contained within the Climate and Energy Action Plan
C. City Council and the community is aware that efforts and actions beyond the local
0
boundaries of Ashland are required in order for the 8 /o annual GHG reduction to be
achieved.
D. City Council places a high priority on social equity in the achievement of the 8% annual
reduction goal
THE CITY OF ASHLAND RESOLVES AS FOLLOWS:
SECTION 1. The Mayor and Council endorse and support efforts undertaken by the State of
Oregon to reduce greenhouse gas emissions through a regulatory limit on emissions that is in
alignment with the overall greenhouse gas emission reduction goals set previously by the State of
Oregon.
SECTION 2. The Mayor and Council also urge these efforts to carefully consider social equity
impacts associated with any proposed emissions reduction regulation or program.
This resolution was duly PASSED and ADOPTED this day of ,
2017, and takes effect upon signing by the Mayor.
Melissa Huhtala, City Recorder
SIGNED and APPROVED this day of 12018.
John Stromberg, Mayor
Reviewed as to form:
David H. Lohman, City Attorney
Resolution No. 2018- Page 1 of 1
CITY OF
ASHLAND
February 7, 2018
Senator Michael Dembrow
Representative Ken Helm
The Ashland City Council and I are submitting this letter of support for the potential upcoming
legislative review and redrafting of what has been labeled as the Clean Energy Jobs Bill (SB
1070).
As we understand the current status, the former SB 1070 may be addressed in the upcoming
legislative session as two separate Bill drafts, LC 44 in the Senate and LC 176 in the House, both
with the overarching intent of creating a regulatory construct to limit and reduce greenhouse gas
emissions generated within the State of Oregon.
While it is understood that many details will need to be addressed, discussed and resolved, the
Council and I wish to pledge our support and appreciation for the pursuit of statewide
greenhouse gas mitigation regulations that set meaningful limits on future emissions with the
overall intent of being.a major contributor to meeting the State's existing greenhouse gas
emission reduction targets and goals.
As you may or may not know, the City of Ashland recently adopted a very comprehensive and
aggressive Climate and Energy Action Plan with an overall target of an eight percent reduction
annually. It is understood that in addition to the successful implementation of our local plan,
action will be required at the state and federal level to reach the stated local targets.
Thank you for your work to date on this matter. We sincerely hope that this work continues and
results in a greenhouse gas mitigation regulation and implementation strategy that meets the
State's future emissions needs, while at the same time being cognizant of the impacts on its
residents and the economic viability of the State.
Sincerely,
John Stromberg
Mayor .
ADMINISTRATION DEPT. Tex: 541-488-6062
20 East -531
20 East Main Main Street Fax: 541A88S311
Ashland, Oregon 97520 TTY: 800-735-2900
w ashland.or.us
Council Business Meeting
February 6, 2018
Title: Ordinance Amending AMC 6.42 to Restrict Retail Sales of Tobacco
Products and Inhalant Delivery Systems To Adults Only
From: David Lohman City Attorney
david.lohman@ashland.or.us
Summary:
The proposed Ordinance amends Ashland Municipal Code 6.42 Tobacco Control to harmonize it
with the recently-amended ORS 167.400 Tobacco Possession by Minors Prohibited.
Actions, Options, or Potential Motions:
Option 1: A Councilor could move to approve on First Reading by title only the proposed
ordinance amending AMC Chapter 6.42 to restrict retail sales of tobacco products and inhalant
delivery systems to persons under the age of 21, and take up Second Reading of the ordinance at
an upcoming Council meeting.
Option 2: Alternatively, a Councilor could move to repeal Chapter 6.42 altogether, leaving
restrictions on the sale of tobacco products and inhalant delivery systems to State statute and
eliminating the current local licensing requirement for commercial sales of such products.
Staff Recommendation:
Staff recommends approval of the attached proposed Ordinance at First Reading, as described in
Option 1.
Resource Requirements:
N/A
Policies, Plans and Goals Supported:
• Keep Ashland a family-friendly community. (Council Goal 7)
• Provide, promote, and enhance the security/safety, environmental health, and livability of the
community. (Quality of Life Administrative Goal)
Background and Additional Information:
Since at least 1971, an Oregon statute on Offenses Involving Tobacco, ORS 167.400 et seq., has
prohibited the purchase of tobacco products by persons under 18 years of age. A City
ordinance, AMC 6.42, complements this purchase restriction by requiring a City license to sell
tobacco products and prohibiting sales to persons under 18.
On January 1, 2018, a revised version of ORS 167.400 took effect. The new version of the
statute raises the minimum age for purchasing tobacco products from 18 years of age to 21 and
includes inhalant delivery systems in the restriction. The new version of the statute now also
includes a prohibition on selling tobacco products and inhalant delivery systems to persons under
Page 1 of 2 CITY OF
-ASH LAN D
the age of 21-which means the statute now encompasses the City ordinance except for the
revised age limit and the local licensing requirement.
Option 1. Passage of the attached draft ordinance would bring AMC 6.42 into harmony with the
State statute by prohibiting the sale of tobacco products to persons under the age of 21 - instead
of 18 - and by including inhalant delivery systems in the prohibition. The licensing requirement
retained under Option 1 makes it possible for the City to continue to have a registry of
commercial outlets selling tobacco and related products and perhaps thereby provide a modicum
of local pressure to discourage sales to teenagers. The City's application fee for licenses to sell
such tobacco products currently costs $40, with a renewal fee of $20 per year, which recovers the
approximate cost of administering the licensing program. Currently the City has 19 tobacco
license holders. In the past, the resources dedicated to administration and enforcement of this
ordinance have been minimal, and noncompliance by retail sellers of tobacco products appears
not to have been a significant problem.
Option 2. Instead of updating AMC 6.42, Council could simply repeal it, thereby scrapping the
licensing requirement. This option would slightly reduce locally-imposed regulatory burdens on
some businesses and, on the other hand, probably would slightly reduce cognizance of and
responsiveness to the statutory prohibition.
Attachments:
Ordinance.
Page 2 of 2 CITY OF
ASHLAND
I
ORDINANCE NO.
AN ORDINANCE AMENDING AMC 6.42
TO RESTRICT RETAIL SALES OF TOBACCO PRODUCTS OR
INHALANT DELIVERY SYSTEMS TO ADULTS ONLY
Annotated to show deletions and additions to the code sections being modified. Deletions are
bold lined through and additions are bold underlined.
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
Powers of the City. The City shall have all powers which the constitutions, statutes, and
common law of the United States and of this State expressly or impliedly grant or allow
municipalities, as fully as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess all powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession.
WHEREAS, until recently, the Oregon statute on Offenses Involving Tobacco, ORS 167.400 et
seq., prohibited persons under 18 years of age from purchasing or possessing tobacco products,
except in specified circumstances, and did not, specifically prohibit sales of tobacco products to
persons under 21 years of age and did not address the sale of inhalant delivery systems;
WHEREAS, Ashland Municipal Code Chapter 6.42, Tobacco Control, currently requires a
license for retail sales of tobacco products, prohibits the sale of any tobacco product to a person
under 18 years of age, and does not address the sale of inhalant delivery systems;
WHEREAS, the Oregon statute on Offenses Involving Tobacco was amended recently to
prohibit persons from knowingly distributing, selling, or allowing the sale of tobacco products or
inhalant delivery systems to persons under 21 years of age; and
WHEREAS, bringing the City's ordinance on licensure of retail sellers of tobacco products into
compliance with current Oregon statutes would require amending the ordinance to prohibit sales
of tobacco products and inhalant delivery systems to persons under the age of 21.
THEREFORE, THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS
FOLLOWS:
SECTION 1. Chapter 6.42 Tobacco Control of the Ashland Municipal Code is hereby amended
to read as follows:
Ordinance No. Page 1 of 4
Section 6.42.010 Purpose and Intent
The purpose of this chapter is to provide measures of for controlling the access of tobacco
products and inhalant delivery systems to adults only persons under the ate of 21 by
licensing retailers of tobacco products.
Section 6.42.020 Definitions
For the purpose of this chapter the following definitions shall apply:
A. "Employee" means any person who is employed by any employer in consideration of direct or
indirect monetary wages or profit, and any person who volunteers his or her services to a non-
profit entity.
B. "Employer" means any person or entity who employs the services of one or more employees.
C. "Inhalant delivery system" has the meaninlz given that term in ORS 431A.175.
C D. "License" means a license issued under this chapter for the retail sale of tobacco products.
-D E. "Licensee" means the holder of a valid license for the retail sale of tobacco products.
E "Minor" means any per-son under 18 years of age.
F. "Self service display" means the open display of tobacco products to which the public has
access without the assistance of a store employee.
G. "Tobacco product" , means any tobneeo cigarette, eigar, pipe tobneeo, smokeless ehewing , or any other form of tobaeeo whieh may be utilized for smoking,
l.llV ♦1111 g,
inhalation, or other means of in Testion. has the meaning given that term in ORS 431A.175.
H. "Vendor assisted sale" means a sale where only the licensee or an employee of the licensee
has access to the tobacco product or inhalant delivery systems and assists the customer by
supplying the tobacco product or inhalant delivery systems and where the customer does not
take possession of the tobacco product or inhalant delivery systems until after it is purchased.
Section 6.42.030 License Requirement
No person may sell tobacco products or inhalant delivery systems unless such person is a
licensee or is employed by a licensee. A license is required for each location in which tobacco
products or inhalant delivery systems are to be sold. All licenses shall be renewed annually on
or before June 30 of each year.
Section 6.42.040 License Fee
No license shall be issued or continue to be valid unless the licensee has paid a fee, the amount
of which is established by resolution of the city council, on or before June 30 of each year.
Section 6.42.050 Non Transferability of License
Licenses shall be non-transferable, except that a new license will be issued upon application to
any licensee who changes the location of where tobacco products are sold.
Section 6.42.060 Sales to Minors Person Under 21 Years Of Age
No person shall sell, make available or otherwise provide, any tobacco product or inhalant
delivery system to a mi-n-or person under 21 years of age.
Section 6.42.070 Vendor Assisted Sales
No person shall sell, permit to be sold, offer for sale or make available or accessible any tobacco
product or inhalant delivery system by means of a vending machine or self-service display or
Ordinance No. Page 2 of 4
any means other than vendor assisted sales, except in a store or other establishment that
prohibits persons under 21 years of age from entering the store or establishment.
A. Vending maeb-ime. sales in taver-ns, eoelitail ,industrial plants as defined in
308.408, hotels, and motels;
B. Smoke shops. For purposes of this seetion, a smoke shop is a store that sells pr-imar4ly
the minor is aeeompanied by the minor's par-eat. To qualif~, for- this exeeption, the smoke
shop must post signs in the store, whieh are eonspieneus upon entering, signs stating
Minor-s Permitted ivith 0 Parent." No store may qualify as a smoke shop under-
seetion if the store is located on th s an automobile sen4ee station, as
defined in seetion 18.08.0754.
Section 6.42.090 Non Retaliation
No employer shall discharge, refuse to hire, or in any manner retaliate against any employee,
applicant for employment, or customer because such employee, applicant, or customer reports or
attempts to prosecute any violation of this chapter.
Section 6.42.100 Penalties
A. Any person who violates any provision of this chapter shall be subject tofine -as-a Class I
violation Section 1.08.020 of the Ashland Municipal Code. Any violation of this section is a
Class I violation, and may have the license issued under this Chapter suspended as follows:
1. In the case of a second violation within a two year period, the licensee shall be fined not less
than $350.00 and the license suspended for 45 days.
2. In the case of three or more violations within a two year period, the licensee shall be fined
$500.00 and the license revoked. Any person whose license has been revoked shall be ineligible
to apply for a new license, at any location, for six months after the effective date of the
revocation.
B. Any person who violates section 6.42.030 shall be subject to a fine of $500.00 for each day a
violation occurs.
C. License suspensions are subject to appeal pursuant to AMC 2.30.
SECTION 2. Savings. Notwithstanding this amendment/repeal, the City ordinances in existence
at the time any criminal or civil enforcement actions were commenced, shall remain valid and in
full force and effect for purposes of all cases filed or commenced during the times said
ordinances(s) or portions thereof were operative. This section simply clarifies the existing
situation that nothing in this Ordinance affects the validity of prosecutions commenced and
continued under the laws in effect at the time the matters were originally filed.
SECTION 3. Severability. The sections, subsections, paragraphs and clauses of this ordinance
are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the
validity of the remaining sections, subsections, paragraphs and clauses.
SECTION 4. Codification. Provisions of this Ordinance shall be incorporated in the City Code,
and the word "ordinance" may be changed to "code", "article", "section", or another word, and
the sections of this Ordinance may be renumbered or re-lettered, provided however, that any
Ordinance No. _ Page 3 of 4
Whereas clauses and boilerplate provisions (i.e., Sections Nos. 2-4) need not be codified, and the
City Recorder is authorized to correct any cross-references and any typographical errors.
The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C)
of the City Charter on the day of , 2018, and duly PASSED and ADOPTED
this day of 2018.
Melissa Huhtala, City Recorder
SIGNED and APPROVED this day of 12018.
John Stromberg, Mayor
Reviewed as to form:
David H. Lohman, City Attorney
Ordinance No. Page 4 of 4