HomeMy WebLinkAbout2026-18 Approving a State Revolving Fund Loan Agreement to Finance WWTP Headworks Upgrade Project RESOLUTION NO. 2026-18
A RESOLUTION AUTHORZING AND APPROVING A STATE
REVOLVING FUND LOAN AGREEMENT TO FINANCE WASTEWATER
SYSTEM PROJECTS -WWTP HEADWORKS UPGRADE PROJECT
RECITALS:
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$803,075.00 for the purposes
of design of the Wastewater Treatment Plant Headworks Upgrade.
THE CITY COUNCIL OF THE CITY OF ASHLAND RESOLVES AS FOLLOWS:
SECTION 1. The City does authorize and approves of the form of the SRF Loan Agreement
RC0064 for the financing of wastewater system projects—WWTP Headworks Upgrade.
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.
SECTION 3. The City does authorize and approve the City Manager or designee, 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 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 .
2026, and takes effect upon signing by the Mayor.
Alissa olodzimki, City Recorder
SIGNED and APPROVED this day of 44intIP516 , 2026.
Tonya raham,Mayor
RAila,
Jo ey
Resolution No.2026-18 Page 1 of 1
CLEAN WATER STATE DEVOLVING FLT1ti1ND
LOAN A GREEMENT
No.RC0064
BETWEEN
THE STATE OF OREGON
ACTPl TG BY AND THROUGH ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
N
CTTY OF ASHLAND
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
CONSTRUCTIONPROJECTS ONLY............................................................................15
ARTICLE 7: DISCLAIMERS By DEQ;LImxrATiONS ON DEQ's LIABILITY.................................18
ARTICLE 8: DEFAULT AND REMEDIES.........................................................................................19
ARTICLE 9: DEFINITIONS.............................................................................................................20
ARTICLE 10: MISCELLANEOUS....................................................................................................22
APPENDIX A: REPAYMENT SCHEDULE........................................................................................27
APPEN.,,Dix B: ESTIM[ATED CWSRF LoANT DISBURSEMENT SCHEDULE......................................28
APPENDIX C: DBE GOOD FAITH EFFORTS .................................................................................29
APPENDIX D: APPLICABLE FEDERAL AUTHORITIES AND LAWS("CRoss-CUTTERS") ............30
APPEN.,DixE: DAVIS-BACON PROVISION ...............................................................31
APPE"Nmix F: EQUAL EMPLOYMENT OppoRTtTNuy .................................................40
AppE,NDLx G: CERTIFICATION REGARDING LOBBYING...............................................41
APPE,-N-Dix H: AMERICAN IRON AND STEEL("AIS'l)REQUIREMENT ...............................42
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THIS LOAN AGREEMENT ("Agreement")is made and entered into as of the date
("Effective 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. RC0064.
DEQ agrees to make, and Borrower agrees to accept, the Loan on the terms and subject to the
conditions set forth below.
ARTICLE 1: TnE LOAN-SPECIFIC TER-,%IIS
DEQ agrees to make the Loan on the following terms and conditions:
(A) BORROWER: City of Ashland
(B) BORROWER'S ADDRESS: 20 E. Main St.
Ashland, OR 97250
(C) LOAN AMOUNT: $803,075
(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.
(E) PROJECT TITLE:Wastewater Treatment Plant Headworks Upgrade
(F) DESCRIPTION OF THE PROJECT: This loan will fund the design part of the Project.
The Project includes replacement of the existing mechanical bar screen, addition of a second
mechanical bar screen and constructing a new separate downstream grit removal facility.
(G) INTEREST RATE:Three and 10/100(3.10%)per annum. Calculation of interest is also
discussed in ARTICLE 2(E)and in ARTICLE 2(F)(4) of this Agreement.
(11) REPAYMENT PERIOD: Ending no later than(a) thirty (30)years after the
Completion Date or(b)thirty(30)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)(1 0) and thereafter semi-annual
payments of principal and interest in accordance with APPENDIx A and ARTICLE 2(F)of this
Agreement.
(3) PLEDGE: The Borrower hereby grants DEQ a security interest in and irrevocably
pledges its Net Revenues to secure payment of and to pay the amounts due under this Loan
Agreement. The Net 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
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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
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 Revenues superior to
or on a parity with the pledge herein granted without the written permission of DEQ. The hen of
this pledge is on a parity with the liens securing all other CWSRF loans between DEQ and the
Borrower; provided, however, that this provision shall not affect the priority that prior CWSRF
loans are entitled to in relation to any loans between Borrower and any third parties.
(K) Are SAL 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.
(L) LOAN FoRGwEN. Ess: If the Borrower completes the Project,and provided there is no
default of any of the terms hereof,DEQ shall forgive fifty percent(50%) of the Loan or$401,537.5,
whichever is less(the portion of the Loan that is forgiven being referred to as the"Forgivable Loan"),
on the date the first repayment is due hereunder. The amount of the Loan forgiveness will be
determined when the Final Loan Amount is calculated.
ARTICLE 2: GENERAL LOAN PRovisioNs
(A) AGREE-miENr 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) AvAmABiLrry OF FuiNDs. DEQs 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.
Furthermore,DEQ's obligation to make any disbursement here-Linder shall terminate on the
Project Completion Date set forth in ARTICLE 3(A)(10).
(C) I)IsBuRsEmEN�OF LOAN PROCEEDS.
(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
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used to pay for Project costs, and all earnings on the Project account(s) shall be credited
to the account(s).
(2) Documentation of Ex "N Expenditures. The Borrower shall provide DEQ with
written evidence of materials and labor furnished to and performed upon the
Project, including,
mg,without limitation, invoices,verified contractor's pay requests,receipts,
and other evidence that DEQ may require in its sole discretion(collectively, "Cost
Documentation"). DEQ will disburse funds to pay Project costs only after the Borrower
has provided Cost Documentation satisfactory to DEQ that such Project costs have been
incurred(whether or not already paid by Borrower) and qualify for reimbursement under
this Agreement and CWSRF Program Rules.
(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 here-under(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 I(I) and ARTICLE 2(F) in U.S. Dollars in
irnmediately 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 I(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.
(IF) LoANREPAYmENT.
(1) Prelip2igM Repolnent Schedule, Interim PoMents. 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 Repg ment 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
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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 fast 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, except as otherwise expressly provided herein, 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(a)
thirty(30)years after the Completion Date or(b)thirty(30)years after the estimated
Completion Date set forth in ARTICLE 3(A)(10),whichever date is earlier.
(G) PREPAYxwN-r.
(1) Optional Prepayment. The Borrower may prepay any amount owed on this
Loan without penalty on any business day upon 30 days prior written notice. Any
prepayment made hereunder will be applied in accordance with ARTICLE 2(17)(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. Any mandatory prepayment under
this ARTICLE 2(G)(2)NT,7111 be applied in accordance with ARTICLE 2(F)(4).
(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.
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(H) LATE PAYmENT FEE. The Borrower agrees to pay immediately upon DEQ's
demand a late fee equal to five percent (5%) of any payment (including any loan fee)that is not
received by DEQ on or before the tenth(10th) calendar day after such payment is due hereunder.
M TEKNMATION OF LOAN AGREEw- N- T. 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 REPREsENTATio.-,,s,WARRAN-nEs AND CovENANTs
(A) REPRESENTATIONS AND WARRANTiEs OF TnE BoRRowER. The Borrower
represents and warrants to DEQ that:
(1) It is a duty formed and existing public agency(as defined in ORS
468.423(4)) 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
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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 March 31, 2028. The
Borrower agrees to complete the Project by the estimated Completion Date.
(11) The estimated total Costs of the Project are S 10,020,070.
(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 September 30, 2026,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;
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(4) an opinion of the legal counsel to the Borrower to the effect that:
(a) The Borrower has the power and authority to exec-Lite and deliver and
perfomi its obligations tinder this Loan Agreement;
(b) This Loan Agreement has been duly executed and acknowledged
where necessary by the Borrowers 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 Revenues are derived and
that are used as security for the Loan will not constitute taxes that are limited by
Section I lb,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-
(a)DEQ determines, in the reasonable exercise of its administrative discretion,
there is insufficient money available in the CWSRF for the Project; or
(b)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
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fAN GENERAL COVENANTS OF THE BORROWER. Until the Loan is paid m 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 fall,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 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 fall.
(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.
(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 blues
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 riot 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
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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 REQt-iREmENT; WASTEWATER RATE
CovENANr;REPoRTTNG.
(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 Revenues in each fiscal year sufficient to pay(i) an 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 Ad ustments. 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
,vith 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 Revenues-unencumbered resources in an amount equal to the revenue deficiency
from the Facility that produces the Net 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 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).
(C) LoA-N RESERVE REQuiREAiEN7T;LOAN RESERVE AccouNT.
(1) Loan Reserve Requirement. The Loan reserve requirement equals one-half
of the average annual debt service based on the final Payment Schedule. Until the Final
Loan Amount is calculated.,the Loan reserve requirement is $10,554. 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.
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(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 DEQ a security interest in and irrevocably pledges amounts in 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
pen-nitted 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
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) INsuRAN- cE. 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 DEQs 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) INDEmviFic4TioN. The Borrower shall, to the extent permitted by IMv and the
Oregon Constitution, indeninifi. , save and hold the State, its officers, agents and employees
harinlessfi-oin and(subject to ORS Chapter 180) defend each of them against anv and all claims,
suits, actions, losses, daniages, liabilities, cost and expenses of aIn7 nature whatsoever resulting
fi-oin, arising out of or relating to the acts or omissions of the Borrower or its officers, employees,
subcontractors or agents in regard to this Aggreenient or the Project.
(IF) TEE BoRRowER's FiN,-ANcis REcoRDs;FINANciAL REPORIINGIREQUIRE-NIEENTS.
(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,
12 1 Pa g e
I
documents, papers,plans and writi-Igs,that are pertinent to this Agreement to perform
examinations and audits and make,excerpts and transcripts and take copies.
(2) Record Retention Period. The Borrower shall retain and keep accessible
files and records relating to the Project for at least six(6)years(or such longer period as
may be required by applicable law) after Project completion as determined by DEQ and
financial files and records until all amounts due under this Loan Agreement are fully repaid,
or until the conclusion of any audit, controversy,or litigation arising out of or related to this
Agreement,whichever date is later.
(3) Accounting for Costs of the Project. Borrower shall provide to DEQ, as
soon as possible,but in no event later than six(6)months following the Prcject 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.
(4) Single Audit Requirements. The CWSRF Program receives capitalization
grants through the Catalog of Federal Domestic Assistance("CFDX')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 expending federal funds in excess of$1,000,000 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-Linder
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$1,000,000 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 perfon-ned by the Federal awarding
agency or any federal agency with respect to the fluids expended under this
Agreement. The Borrower acknowledges and agrees that any audit costs incurred
by the Borrower as a result of allegations of fraud,waste or abuse are ineligible
for reimbursement under this or any other agreement between the Borrower and
the State of Oregon.
(G) DBE GooD FAITH EFFORT. The Borrower and its prime contractor(s)must
comply with the Six Good Faith Efforts provided in 40 C.F.R. § 33.301 (set forth in APPENDIX
Q and the recordkeeping requirements provided in 40 C.F.R. § 33.501. Borrower must submit
documentation of Borrower and prime contractor(s)'s compliance with 40 C.F.R. §§ 33.301 and
33.501 to DEQ upon request.
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Pursuant to 40 CFR part 33,Appendix A, 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 Linder 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, all applicable requirements of 40
CFR § 33.302 (the exact language may vary), including:
(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 contractor must employ the Six Good Faith Efforts as described in 40 C.F.R.
§ 33.301 for soliciting and replacing subcontractors; and provide documentation of these
efforts to the Borrower.
(H) CONTRACT LANGUAGE. The Borrower shall include in all contracts (unless
exempt)with its prime contractor{s)the language set forth in APPEND ix 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 RELATiNIG TO
CONSTRUCTION PROJECTS ONLY
(A) THE BORROWER'S REPRESENTATION AND WARRANTY REGARDING COSTS
ALREADY INCURRED.
(1) The Borrower represents and wan-ants to DEQ that, as of the date of this
Loan Agreement,the Costs of the Project actually incurred by the Borrower do not exceed
$512,282.
(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
14 1 Page
Clean Water State Revolving Fund regulations,40 C.F.R.Part 35,that may be disbursed on
a reimbursement basis.
(B) CONDITION To DISBURSEAvNrs. 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 DEQs 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. TIiis 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.
(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
15 1 Page
I
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 Borrowershall 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 first day of
Operation(as that term is defined in OAR 340-054-0010(26))("Initiation of Operation"), 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 Copipletio . 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(3 0)days after the actual Project Completion Date.
(b) If the Project is completed, or is completed except for minor
items, and the Project is operable,but DEQ has not received a notice of
Initiation of Operation from the Borrower., DEQ may assign an Initiation of
Operation date.
(D) PROVISION APPLICABLE TO CONTRACTS AND SUBCONTRACTS AWARDED
FOR THE PROJECT
(1) Prevailing Wage Requirements
(a) Borrower shall comply with state prevailing wage law as set forth
in ORS 279C.800 through 279C.870, and the administrative rules promulgated
thereunder(OAR Chapter 839, Division 25) (collectively, state "PWR"). This
includes but is not limited to imposing an obligation that when PV*TR applies to
the Project, contractors and subcontractors on the Project must pay the prevailing
rate of wage for workers in each trade or occupation in each locality as
deterinined by the Commissioner of the Bureau of Labor and Industries ("BOLI")
under ORS 279C.815.
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(b) When the federal Davis-Bacon Act applies to the Project,
contractors and subcontractors on the Project must pay the prevailing rate of wage
as determined by the United States Secretary of Labor under the Davis-Bacon Act
(40 U.S.C. 3141 et seq.). 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 I of Appama E and Part 2 of APPE�ix E as applicable.
(c) Notwithstanding(a) and (b) above, when both PWR and the
federal Davis-Bacon Act apply to the Project, contractors and subcontractors on
the Project must pay a rate of wage that meets or exceeds the greater of the rate
provided in(a) or(b) above.
(d) When PWR applies, Borrower and its contractors and
subcontractors shall not contract with any contractor on BOLI's current List of
Contractors Ineligible to Receive Public Works Contracts.
(e) When PWR applies, Borrower shall be responsible for both
providing the notice to the BOLI Commissioner required by ORS 279C.835 and
the payment of any prevailing wage fee(s)required under ORS 279C.825 and
BOLF's rules, including OAR 839-025-0200 to OAR 839-025-0230. For
avoidance of any doubt, Borrower contractually agrees to pay applicable
prevailing wa
ge vage fees for the Project rather than DEQ,the public agency providing
Fmancinr-,Proceeds under this Loan Agreement.
(1) Pursuant to ORS 279C.817, Borrower and any contractors or
subcontractors may request that the BOLI Commissioner make a determination
about whether the Project is a public works on which payment of the prevailing
rate of wage is required under ORS 279C.840 (i.e. whether PWR applies).
These laws, rules,regulations and orders are incorporated by reference in this Contract to the
extent required by law.
(2) Retainage. The Borrower shall require a five percent(5%)retainage in all of
its contracts related to the Project for an amount eater than One Hundred Thousand
r0i greater
Dollars($1 00,00a),
(E) AmERicAN IRON AND STEEL
The Borrower shall:
(1) Comply with all federal requirements applicable to the Loan(including
those imposed by the Consolidated Appropriations Act, 2014, P.L. 113-76 ("CAA"), and
related CWSRF Policy Guidelines)which the Borrower understands includes, among
other,requirements that all of the iron and steel products used in the Project are,to be
produced in the United States ("American Iron and Steel Requirement'')unless (i) the
Borrower has requested and obtained a waiver from the EPA pertaining to the Project or
17 1 Inge
(ii)DEQ has otherwise advised the Borrower in writing that the American Iron and Steel
Requirement is not applicable to the Project.
(2) Comply with all record keeping and reporting requirements under the
Clean Water Act, 33 U.S.C. 1251 et seq. (1972) ("Clean Water Act"), including any
reports required by a Federal agency or DEQ such as performance indicators of program
deliverables, inforination on costs and Project progress. The Borrower understands that
(i) each contract and subcontract related to the Project is subject to audit by appropriate
federal and state entities and (ii) failure to comply with the Clean Water Act and this
Agreement may be a default hereunder that results in a repayment of the Loan in advance
of the maturity thereof and/or other remedial actions.
(3) Include in all contracts for the Project the language set forth in APPENDIX
H. All contracts and subcontracts of Borrower for the Project must have a provision
requiring compliance with the American Iron and Steel Requirement. APPENDIX H is an
example provided by the EPA of what could be included in all contracts in projects that
use CWSRF funds. Neither the EPA nor DEQ makes any claims regarding the legality of
this clause with respect to state or local law.
(4) Requirement. All of the iron and steel products used in the Project must
be produced in the United States if the Project is for the construction, alteration,
maintenance, or repair of a"treatment works" as defined in the federal Water Pollution
Control Act, 33 U.S.C. §1381 et seq.
(5) Definition. "Iron and steel products" means the following products made
primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other
municipal castings, hydrants, tanks, flanges,pipe clamps and restraints,valves, structural
steel,reinforced precast concrete, and construction materials.
(6) Applicability. As to loan agreements fully executed on or after October 1,
2014, the requirement set forth in ARTICLE 6(E)(1) above does not apply if the
engineering plans and specifications for the Project were approved by DEQ prior to June
10, 2014.
(7) Waiver. The requirement set forth in ARTICLE 6(E)(1) above does not
apply if: (a) application would be inconsistent with the public interest; (2) iron and steel
products that are not produced in the United States in sufficient and reasonably available
quantities and of a satisfactory quality; or(3)inclusion of iron and steel products
produced in the United States will increase the cost of the overall project by more than 25
percent. Borrower may apply for a waiver of the requirement set forth in ARTICLE
6(E)(1) above by sending a waiver request directly to EPA with a copy to DEQ or by
sending its waiver request to DEQ who will then forward it on to EPA.
ARTICLE 7: DiiscLAiNiERs By DEQ;LLNnTATIoN 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
18 1 Paige
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 oFLLxBmiTyoFDEQ. DEQ EXPRESSLY DISCLAIMS
LIABILITY OF ANY KIND OR CHARACTER WHATSOEVER FOR PAYMENT OF
LABOR OR MATERIALS OR OTHERWISE IN CONNECTION WITH THE COMPLETION
OF THE PROJECT OR CONTRACTS ENTERED INTO BY THE BORROWER WITH
THIRD PARTIES FOR THE COMPLETION OF THE PROJECT. All Project costs of labor,
materials and construction, including any indirect costs, shall be the responsibility of and shall be
paid by the Borrower.
(C) NoNLLABiLrry 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 REwDiEs
(A) EvENTs OF DEFAULT. The occtuTence of one or more of the following events
constitutes an event of default("Event of Default"),whether occurring voluntarily or involuntarily,
by operation of law or pursuant to any order of any court or governmental agency:
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(1) The Borrower falls to make any Loan payment within thirty(30) days
after the payment is scheduled to be made according to the repayment schedule;
(2) Any representation or warranty made by the Borrower hereunder was untrue
in any material respect as of the date it was made;
(3) The Borrower becomes insolvent or admits in writing an inability to pay its
debts as they mature or applies for, consents to,or acquiesces in the appointment of a trustee
or receiver for the Borrower or a substantial part of its property; or in the absence of such
application, consent, or acquiescence, a trustee or receiver is appointed for the Borrower or a
substantial part of its property and is not discharged within sixty(60)days; or any
bankruptcy, reorganization, debt arrangement or moratorium or any dissolution or
liquidation proceeding is instituted by or against the Borrower and,if instituted against the
Borrower,is consented to or acquiesced in by the Borrower or is not dismissed within,
twenty(20) days;
(4) As a result of any changes in the United States Constitution or the Oregon
Constitution or as a result of any legislative,judicial, or administrative action,any part of
this Loan Agreement becomes void,unenforceable or impossible to perform in accordance
with the intent and purposes of the parties hereto or is declared unlawful;
(5) The Borrower defaults in the performance or observance of any covenants
or agreements contained in any loan documents between itself and any lender or lenders,
and the default remains uncured upon the expiration of any cure period-provided by said
loan documents; or
(6) A"land use decision" (as that term is defined by ORS 197.015), a LUGS
(as that term is defined under Oregon Administrative Rules Chapter 340, Division 18) or
any other permit or approval of any kind that is necessary for the Borrower to either
complete the Project or operate the Project is denied,revoked, rescinded or otherwise
terminated at any time during the Repayment Period identified in Article I(H) (in each
case, a "Permit Revocation"); or
(7) The Borrower falls 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(6)above,witliin a period of thirty(30)days after DEQ provides notice of the
noncompliance.
(R) REmEDYEs. 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;
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(3) Appoint a receiver, at the Borrower's expense,to operate the Facility that
produces the Net Revenues and collect the Gross Revenues;
(4) Set and collect utifiq,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, hen,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,hen,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 CWSRF; and
(7) Pursue any other legal or equitable remedy it may have.
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ARTICLE 9: DEMTHON'S
(A) "BORROWER"means the public agency or agencies (as defined in ORS
468.423(4)) shown as the"Borrower"in Article I(A) of this Agreement.
(B) "CoxiPLETTON 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
preject 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 complete the Project in compliance with DEQs 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 PRoGRAW'or"CWSRF" means the Clean Water State Revolving Fund
and the Clean Water State Revolving Fund Loan Program, a fund and loan program administered by
DEQ under ORS 468.423 to 468.440.
(E) "DEQ"means the,Oregon Department of Environmental Quality.
(IF) "DnzECTOW'means the Director of DEQ or the Director's authorized representative.
(G) 'TAcrLiTy"means all property owned or used by the Borrower to provide wastewater
collection,treatment and disposal services,of which the Project is a part.
(H) "FiNAL LOAN AmouNT"means the total of all Loan proceeds disbursed to the
Borrower under the Loan Agreement,determined on the date on which the Borrower indicates that
no further Loan funds will be requested, all eligible expenditures have been reimbursed from the
Loan proceeds,or all Loan proceeds have been disbursed hereunder,whichever occurs first.
22 1 P a g e
(1) 11GRoss REvFN-uEs1'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) IIHAzmwous IVIATERL4LLs"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.
(K) "LOAN"means the loan made pursuant to this Loan Agreement.
(L) "LOAN AGPxEmENTI!or 11AGPEENmNT'1 means this loan agreement and its
exhibits, appendices,schedules and attachments(which are by this reference incorporated
herein), and any amendments thereto.
(NI) "LOAN AmOuNT11 means the maximum amount DEQ agrees to loan the Borrower
hereunder.
(N) "LOAN RESERVE AccouNT11 means the account described in ARTICLE 5(c)(2).
(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) "NLkNuAL"means the CWSRF Manual for Construction Projects.
(Q) "NET REvEN-u-Es"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) 'IOUTsTAN7DiNG 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.
23 1 page
(T) "PRojEcTll means the facilities, activities or documents described in ARTICLE
I(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 thirty(30)years after the Completion
Date.
(V) "STATE"means the State of Oregon.
ARTICLE 10: NhscELLANEous
(A) NoTwEs. 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 I(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 St.., #600
Portland, Oregon 97235
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 transinission must be confirmed by telephone notice to DEQ's CWSRF
Prograni 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 reniedy.
(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.
24 1 Fa g e
(C) TimE Is OF TnE ESSENCE. The Borrower agr
ees that time is of the essence under
this Loan Agreement.
(D) RELAXIONSMP OF PARTu-s. The parties agree and acknowledge that their
relationship is that of'independent contracting parties, and neither party hereto shall be deemed
an agent,partner,joint venturer or related entity of the other by reason of this Loan Agreement.
(E) No TMRD 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) AssiGisTNmNT. 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 1 O(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.
(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) V-4,LiDrry Aisw SExTRABmiTy;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 UI 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.
(K) HEADLNGs. 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.
25 1 Page
(L) ATTORNEYs'FEES AND PxPENSES. In any action or suit to enforce any night 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.
(NI) CHOICE OF LANv;DESIGNATION OF FoRu-m;FEDERAL FORUM.
(1) The laws of the State of Oregon(without giving effect to its conflicts of law
principles)govern all matters arising out of or relating to this Agreement, including, without
limitation, its validity, interpretation, construction,performance, and enforcement.
(2) Any party bringing a legal action or proceeding against any other party arising out
of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of
the State of Oregon for Marion County(unless* Oregon law requires that it be brought and
conducted in another county). Each party hereby consents to the exclusive jurisdiction of such
court, waives any objection to venue, and waives any claim that such forum is an inconvenient
forum.
(3) Notwithstanding ARTICLE I O(M)(2), if a claim must be brought in a federal for run,
then it must be brought and adjudicated solely and exclusively within the United States District
Court for the District of Oregon. This ARTICLE 10(M)(3) applies to a claim brought against the
State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon's
sovereign immunity and is not consent by the State of Oregon to be sued in federal court. This
ARTICLE 1 O(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.
(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.
(0) ENTIRE AGREEmEN,-r;A-,,vjENavwN-rs. 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 shah 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.
26 1 Pa 0g e
CITY of ASHLAND
By:
Authorized Officer Date
Typed Name:
Title:
STATE OF OREGON ACTLNG By AisD THRouGH ITS
DEPART NIENT OF ENVIRON�NTAL QuALITY
By:
Jennifer Wigal,Administrator Date
Water Quality Division
271 Pegs
APPEN-Dix A:PWEmmv4RyREpAymENr. SCHEDULE
OREGO14 DEPARTMENT OF ENVIRONMENTAL QUALITY
CLEAN WATER STATE REVOLVING FUND LOAN PROGRAM
REPAYM&IT SCHEDULE
BORROWER: ICityofAshiand INTEREST RATE 3A0%
SRF LOAN NO-: RC0064 TERM IN YEARS: 30
LOAN MOUNT: $ 803,075 PAYNENTATAOUNT: $ 10,435
ANNUAL FEE: 0,50%
Due ---------------PAYMENT--------------- Principal
Date Pmt# Principal Interest Fees Total Balance
401M
121112028 1 0 17,635 0 17,635 401,538
61112029 2 4,211 6,224 2,008 12,443 397,327
121V2029 3 4,276 61159 0 10.435 393,051
6/1/2030 4 4,343 6,092 1,965 12t400 388,708
121112030 5 4,410 6,025 0 10r435 384:298
&112031 6 4,478 5,957 1,921 12,356 379,820
12/112031 7 4,548 5,887 0 10,435 375:272
611/2032 8 4,618 5,817 1,876 12,311 370,654
12;112032 9 4,690 5,745 0 10A35 365,964
&112033 10 4,763 5,672 1,630 12,265 361,201
12JV2033 11 4M6 5,599 0 10,435 356:365
6;112034 12 4,911 5,524 1,782 12217 351,454
121112034 13 4,987 5,448 0 10;435 346,467
&V2035 14 5,065 5;370 1,732 12,167 341,402
12J1/2035 15 5,143 5292 0 10,435 336259
6J112036 16 5,223 5,212 1,681 12r116 331,036
12J112036 17 5,304 5:131 0 10,435 325,732
61112037 18 5,386 5r049 1,629 12,064 320,346
12J112037 19 5,470 4,965 0 10,435 314876
6/112038 20 5,554 4,881 1,574 12,009 309322
12J112038 21 5,641 41794 0 10:435 303,681
&112039 22 5,728 4v707 1,518 11,953 297,953
121112039 23 5,817 4,618 0 10,435 292,136
6;112040 24 5,907 4:528 1,461 11,896 286,229
1211/2040 25 5,998 4,437 0 10435 280,231
6/112041 26 6,091 4,344 1,401 11,836 274,140
11112041 27 6,186 4,249 0 10.435 267,954
61112042 28 6,282 4,153 1,340 11.775 261.672
12f112042 29 6,379 4,056 0 10.435 255,293
6J112043 30 6,478 3,957 1,276 11711 248,815
12)112043 31 6,578 3,857 0 10A35 242,237
&112044 32 6,680 3.755 1,211 11.646 235.557
121112044 33 6,784 3.651 0 10,435 228,773
61112045 34 6,889 3,546 1,144 11,579 221,884
12J112045 35 6,996 3,439 0 10r435 214z888
61112046 36 7,104 3,331 1,074 11,509 207,784
12J112046 37 7,214 37221 0 10t435 200r570
&112047 38 7.326 37109 1,003 11;438 193,244
12J112047 39 7,440 27995 0 10,435 185,804
61112M 40 7,555 2v880 929 11,364 178,249
121112048 41 7,672 2.763' 0 10,435 170,577
6J 112049 42 7,791 2,644 853 11,288 162,786
121112049 43 7,912 2,523 0 %435 154,874
61112050 44 8,034 2,401 774 11,209 146,840
121I/2050 45 8,159 2,276 0 10,435 138,681
&112051 46 8,285 2150 693 11:128 130,396
12J112051 47 8,414 2021 0 10:435 121,982
&112052 48 8,544 1,891 610 11,045 113,438
12M/2052 49 8,677 1,758 0 10,435 104,761
6/1/2053 50 8,811 1:624 524 10,959 95:950
12J112053 51 8,948 1,487' 0 10,435 87:002
611/2054 52 9,086 1,349 435 10,870 77:916
121112054 53 9,227 1,208' 0 10,435 687689
6/lt2055 54 9,370 1,065 343 10,778 59,319
121112055 55 9,516 gigr 0 10,435 49,803
61WO56 56 9,663 772 249 10.684 40,140
12M12056 57 9,813 622 r 0 10,435 30,327
61112057 58 9.965 470 152 10,587 20,362
12J112057 59 10,119 316 r 0 10,435 10,243
6/112068 60 10,243 159 51 107453 0
TOTALS 401,538 231,729 35039 668.306
REQUIRED LOAN RESERVE: S 10,554
28 Page
0
APPEi,,,DIx B: Esmf,4TE'D CWSRF LoAN. DISBURSEMENT SCHEDULE
Loan funds are expected to be available based on the following Project schedule:
Borrower: City ofAshfand
Loan#: RC0064
Int.Rate: 3.10%
1 st Pmt: 12/1/2028
Disb. Paid/ Gross Disb. Principal Forg. Net Amount Disb. Total# interest
Number Estimate Amount Applied Usbursed Date of Clays Amount
1 Estimate $ 80,308 $ 40,154 $ 40,154 1011/2026 792 2,697,84
2 Estimate $ 80,308 $ 40,154 $ 40,154 12/112026 731 2 489.81
31 Estimate $ 80,308 $ 40,154 $ 40,154 211/2027 669 2,278.37
41 Estimate $ 80,308 $ 40,154 $ 40,154 41112027 610 2,077.16
6 Estimate $ 80,308 $ 40,154 $ 40,154 61112027 549 1,869.13
6 Estimate $ 80,308 $ 40,154 $ 40,154 811/2027 488 1,661.10
7 Estimate $ 80,308 $ 40,154 $ 40„154 10/112027 427 1,453.08
8 Estimate $ 80,308 $ 40,154 1 $ 40,154 1211/20271 366 1,245.05
9 Estimate $ 80,308 $ 40,154 $ 40,154 2/1/2028 304 1,033.90
101 Estimate $ 80,308 $ 40,154 $ 40,154 4/1/2028 244 829.84
TOTAL $ $03,076 $ 401,638 $ 401,538 17,636.30
29 Pi ge
APPE-NDIx C: DBE GoOD FAITH EFFoRTs
At a minimum the Borrower or its prime contractor must make good faith efforts whenever
procuring construction, equipment, services and supplies by complying with the six steps
outlined in 40 CFR Section 33.301. The six steps are:
(a)Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable
through outreach and recruitment activities.For Indian Tribal, State and Local and Government
recipients,this will include placing DBEs on solicitation lists and soliciting them whenever they are
potential sources.
(b)Make information on forthcoming opportunities available to DBEs and arrange time frames for
contracts and establish delivery schedules,where the requirements permit,in a way that encourages
and facilitates participation by DBEs in the competitive process. This includes,whenever possible,
posting solicitations for bids or proposals for a minimum of 30 calendar days before the bid or
proposal closing date.
(c)Consider in the contracting process whether firms competing for large contracts could
subcontract with DBEs. For Indian Tribal, State and local Government recipients,this will include
dividing total requirements when economically feasible into smaller tasks or quantities to perinit
maximum participation by DBEs in the competitive process.
(d)Encourage contracting with a consortium of DBEs when a contract is too large for one of these
firms to handle individually.
(e)Use the services and assistance of the SBA and the Minority Business Development Agency of
the Department of Commerce.
(f) If the prime contractor awards subcontracts,require the prime contractor to take the steps in
paragraphs (a)through(e)of this section.
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: https://NA-vvw.epa.goN,/aboutepa/about-office-small-and-
disadvanta-0ed-business-utilization-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: https://vvww.oregon.gov/biz/programs/cobid/mbe-
wbe/pages/default.aspx
30 P e
APPENDLx D: APPLICABLE FEDERAL AuTHoRrrms AND LANvs("CROSS-CuTTERsll)
ENvIRONNmNTAL LEGISLATION:
Archaeological and Historic Preservation Act of 1974,PL 93-291.
Clean Air Act,42 U.S.C. 7506(c).
Coastal Barrier Resources Act, 16 U.S.C. 3501, et seq.
Coastal Zone Management Act of 1972,PL 92-583,as amended.
Endangered Species Act 16 U.S.C. 1531, et seq.
Executive Order 11593,Protection and Enhancement of the Cultural Environment.
Executive Order 11988,Floodplain Management.
Executive Order 11990,Protection of Wetlands.
Farmland Protection Policy Act, 7 U.S.C.4201, et seq.
Fish and Wildlife Coordination Act,PL 85-624,as amended.
National Historic Preservation Act of 1966,PL 89-665,as amended.
Safe Drinking Water Act, Section 1424(e),PL 92-523, as amended.
Wild and Scenic Rivers Act,PL 90-542,as amended.
Federal Water Pollution Control Act Amendments of 1972,PL 92-500.
Migratory Bird Conservation Act, 16 U.S.C. 715, et seq.
Magnuson-Stevens Act-Essential Fish Habitat, 16 U.S.C. 1851, et seq.
EcoNoivic 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 1173 8,Administration of the Clean Air Act and the Federal Water Pollution
Control Act with Respect to Federal Contracts, Grants or Loans.
SocLkL 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).
-MI;sc.ELLA.NEous AUTHORITY:
Uniform Relocation and Real Property Acquisition Policies Act of 1970, PL 92-646.
Executive Order 12549 and 40 CFR Part 32, Debarment and Suspension.
Disclosure of Lobbying Activities, Section 1352, Title 31,U.S. Code.
APPENDix E: DAvis-BACON PROVISION
Part 1
31 1 rage
C)
(1)Mininiurn 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 detennination 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
l(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-132 1) 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.
(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 fi-inge benefits where appropriate), documentation of the
action taken and the request, including the local wage determination shall be sent by the
32 1 P a g e
0
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
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.
33 1 Pa e
(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 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
https://www.dol.gov/whd/forms/wh347instr.htm 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).
(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
34 1 Page
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 inechanic 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 farther payment, advance, or guarantee of Rinds. 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,Nvllo 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
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
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actually performed. Where, a contractor is performing construction on a project in a locality other
than that in which its prograin 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
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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 29
CFR part 30.
(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
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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.
(1)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.
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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)(I) 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,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 saine 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
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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
that 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. Subrecipients must conduct more frequent inter-views 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
apprentices. These reviews shall be conducted in accordance with the schedules for spot checks
and interviews described in Item 5(b) and(c) above.
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(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 https://www.dol.gov/Nvhd/local/.
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APPE'N,DLx F
EQUAL ENwLoymiENT 0PPoRTLTmTY
During the perforinance 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 comply with
all applicable requirements of the Civil Rights Act of 1964, as amended, including
without limitation all applicable provisions and requirements of Title VI and Title VIL
The contractor will ensure that applicants are employed, and that employees are treated
during employment,without regard to their race, color,religion, sex or national origin
and that the contractor's employment actions do not have a disproportionate, adverse
effect on a protected group in violation of Title VII. 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,
such notices as may be required by the Equal Employment Opportunity Commission
setting forth the rights of employees and/or applicants.
(2) The contractor will ensure in its hiring that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex or national
origin and may include a statement to that effect in the solicitations or advertisements for
employees placed by or on behalf of the contractor.
(3) The contractor will comply with all applicable provisions of the Civil Rights Act of 1964,
as amended, and of the rules,regulations, and relevant orders of the Secretary of Labor,
United States Department of Justice, and the Equal Employment Opportunity
Commission,to the extent applicable.
(4) 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 such other sanctions may be imposed
and remedies invoked by rule,regulation, or order of the Secretary of Labor, or as
otherwise provided by law.
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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 suba-,vards 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 13522, 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
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APPENDIX H: AmERicAN IRON AND STEEL("AIS") REQUIREMENT
The Contractor acknowledges to and for the benefit of City of Ashland("Purchaser") and
the State of Oregon, acting by and through the Department of Envirom-nental Quality Clean
Water State Revolving Fund (the "State")that it understands the goods and services under this
Agreement are being funded with monies made available by the Clean Water State Revolving
Fund that have statutory requirements commonly known as "American Iron and Steel;"that
requires all of the iron and steel products used in the project to be produced in the United States
("American Iron and Steel Requirement") including iron and steel products provided by the
Contactor pursuant to this Agreement. The Contractor hereby represents and warrants to and for
the benefit of the Purchaser and the State that(a)the Contractor has reviewed and understands
the American Iron and Steel Requirement, (b) all of the iron and steel products used in the
project will be and/or have been produced in the United States in a manner that complies-,vitli
the American Iron and Steel Requirement, unless a waiver of the requirement is approved, and
(c)the Contractor will provide any further verified information certification or assurance of
compliance with this paragraph, or information necessary to support a waiver of the American
Iron and Steel Requirement, as may be requested by the Purchaser or the State.Notwithstanding
any other provision of this Agreement, any failure to comply with this paragraph by the
Contractor shall permit the Purchaser or State to recover as damages against the Contractor any
loss, expense, or cost(including without limitation attorney's fees) incurred by the Purchaser or
State resulting from any such failure (including without limitation any impairment or loss of
funding,whether in whole or in part, from the State or any damages owed to the State by the
Purchaser). While the Contractor has no direct contractual privity with the State, as a lender to
the Purchaser for the funding of its project, the Purchaser and the Contractor agree that the State
is a third-party beneficiary and neither this paragraph (nor any other provision of this Agreement
necessary to give this paragraph force or effect) shall be amended or waived without the prior
written consent of the State.
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