HomeMy WebLinkAboutContracts & Agreements_73-2011_CCv0001.pdf SRF11CX103
Construction Loan/Grant
Agreement No. SRF11 CX103
STATE OF CALIFORNIA
HEALTH AND HUMAN SERVICES AGENCY
DEPARTMENT OF PUBLIC HEALTH
FUNDING AGREEMENT
BETWEEN
STATE OF CALIFORNIA
DEPARTMENT OF PUBLIC HEALTH
AND
CITY OF REDLANDS
PROJECT NUMBER: 3610037-004
FOR A CONSTRUCTION LOAN AND GRANT UNDER THE
SAFE DRINKING WATER STATE REVOLVING FUND LAW OF 1997
(Rev. 5/4111
SRF11CX103
TABLE OF CONTENTS
Section 'Page�
~i 1. ,~-`--,---^--~~^~^^~-~~'~~-~~~~~~~'.~^.-'-''-~~-_'^---�--
_ .................'^-"----.,`-........----=.`'= 2
3. Project Cost. ............----~............. --..........'' ......~~~~°^^ .^-° ~~^^°^ —~-~--~~-'' 2
4� Loan ..............._-_-.~~'--..~^~~~-~_^'~-.~-~.-~.,. .-~.^~^ .......^^-~^ 2
5. Grant Amount............ ...... ._,,, ....... 2
6. Supplier's 3" +~os~-------~---^-=~--'^.~°~._ ~.^
~~,.." ~.,._---.~_ ..........
'7 Competitive
�Bidding ........ ..............~~..............--..........^--~`` ...........-~. 3
8 Requirements f -_- _ ......=~......... ...... 3
9 Rate of Interest,=-'=-'—=-^^-----~--'----~`---~`-~^~-~~-~~-~^^--'^-'-'°``~-~^^ 3
10. Loan Repayment Ter0n-,........ ....... ....... ^_-~,^'_..............~,_~^^'~-`_-^^^^~~-_`-- 3
11Special ... ........................................ .........................................~~~~ 3
12° Operation and Maintenance of
- ...~.................. `~~~'_~-`_'_-,,,~.........^..... 4
13. Fiscal Services and ~~--=--= 4
14` Project Officials and]Notices,=_~~,,,................. _,,,,,............. ........ ,~,___`.',,_,,'~,~ 4
15. Enforcement. .............................. ...... ...........^.~ ........ ^~^.~`--^`,m~---=- 6
16. Miscellaneous Provisions`-^-^_~.~=~.`---^^---^-~--~.~,-~-~-,~-^='=~~~---.-^-_`~^ 6
_
EXHIBIT A�
STANDARD CONDITIONS
Article Page
�
�
A- 1. Definitions _=__~^__-_,_`-.~~_~^^__~_,_-_��~_.f_p_^=_^___^-,=,~___==^=,°~,,~_ _
A~2^ Term of Agreement.......-.--^=...... ......... ...... ~..^_,......~~-.~"-^--~-^--~~^^°`^^...... 10
SRF11CX103
TABLE OF CONTENTS (continued)
Article Page
A_4[ Compliance with Laws, Regulations, amKj Permit Requirements... ^'~.~-~^-'`-^_-~- 11
A- 5. Project Changes_ ....... -..-,............... -'-^......---~~`~-~~,~............. `--.-'°~'~--~_ 11
A_<6,. 11
Claims ..., .......................... ........ ............. ........ ....................�~�� .--.—.
(b) Disbursement.....,,~,^,^,.__,.__.~._^°_,~,.,,_..'.................. .......... ...__11
(c) Rejection of Claims . ............`-^~~............. -^~~~~--............. ................... ..... 12
(d) Correction of Claims ^'=_~-`-^-=---~-.,--,-~^~,--^'^^-.~^~--"^-=-"°^.^~.=-,~" 12
~°~-~^ ~'-`~~~-'~~-'~` '°-
Final" Claim and =~~~'~...°"°°~'"~''~~^~.''._.-_'^.~�._.^~.~~~~-~ ...... ,.--'~~~ _~
(g) Force Account......................- ............'....... ...................... ............'...-_^--~,+ ^~"
- _. Withholding of Loan and Grant Disbursements by State and Cancellation _
.............................................. 13�
-~. ...... ._
vvnmmnold,|Vg Ez/u/e Loan and G/xnvt Amounts .......................~~.~~~..,..._~~.`_ 14,
(c) Withholding BalanceofLoan '~~............................ 14'
\-8. Timing of Project............................................� -^__.-,-_~= ........... 14
A+ g. Supplier's Contracts,_'_^~,....__~~~~,~,,_,_~~,~__,~_,............................... -.~ ~.~-. 14
Ar1[� - - and Inspection|rf`-Books_ and
........ ..................°_ ............ ^........_~` 15�
A-11. Statement of Principal Amount ^~^~~---~ --~-----^~~~~ 15
w=v Transmission of Statement to Supplier~'^^^'''^^~^~-^^^^~^^'~~^'~''^-~-~~'~^~'^-~'^ '-~
(b) Remittance of Funds by Supplier..,,~_,~_,,,__~,~,,~._,~~,~._~,~_^~,,.____,,____ 15�
Ar12. Interest Payments During' .................... n,�........ ',~~.~__~~_.--_` 76�
A-1 3and 1-
' Terms'~ of . ~~p.~^~~~_~~,~--.~.__,_........ ..... _.........---..........-_- -_
(b) Advance Payment Option ,,__,__,,.,~~_......... ,~^,~.........---,.~,`..........._... 16�
A-14. Payment ......._^-°...........--_^-_=-.--~.-^..^`-.......--- ... ......... . _. 17
A-ƒ5 -. 17
' Disbursements and .... 1.7
/b� ���" ��� --��m���d~-.~.~-.~~..-....~~_^~_'.~.___.~-^..~-_.. '_.-~ f7`
^_' __�__--.. _ Funds _ -
�(c) Interim and Final ..... ._ ................. ............�-........ ...... -_~~ 17.
'
-
SRFItCX1O3
TABLE OF CONTENTS (continued)
Article Page
A,16, Inspections of Project by State ,~-'-^~~'-'-`^--~-~^^~~~--~~--^---`--^^-~^--~~~~- 18
A-17. Prohibition Against Disposal-- of Project Without State ,_.._...,_........... 10/
A-'M. -,_-=-~=,.~~-'=~=~~..__~~ `18�
A-1 9. Clause .... ^~^................. -..................--...............___.... 19
-
A-20. -Successors and Assigns '~~~_- ~^~~~.,. ,=_ -- � 19�
A-21 State to be Held .... ......,.............^~,_^=___'�="=~-~..~~.~............. .... 2]0�
A~22. Remedies Not Exclusive ...... ..................... .-.. ................ ^~~~,-_-''-- ............... 2]0
A-23. Amendments ..- -_ .~~.._..'~-'.-`--_, -- __ 20�
A_24Waiver of ____', =^,,_~^~~~,_~__',__~_,___-._,~~-_ 20
20
A-26.
A-25._��, Dispute ---`-'`~-'-'-~'~~~^_'`^~.'~~^~^^~.',,,.--~''_----`------'_ .�~-~
�
�cA-26. an~ -'-^-.-.-^,~^--^ --.~^'-°-----_~^,--~=~===-=~"=' ^-~��
A-27. Default Provisions'.'^-^~°.........~ ........... ...............................................,^` 21
A-28, Drug-Free ..................................__..................... _ 22�
A-29. ............ 23
�
A-30.~��. Additional Insured.~.........~_`- ~ ~-- -- - ~ - ~- ~ ` - ��
^. ' '`^'^^-. ^' `.' .~~'~^ --. `^~^' -^~. .'
. �°
-�. Prohibited
--Use of"State Funds for Software.... .........-~-.............. ~^-^..--*-s 23
A_32 Labor Compliance..... ................ ^--.~-~~'-'-=,~. ......... ........ '-.- 23
A+33' Act Compliance- ~.--'''^' '............ .....~..............~................... [
A-34_ New Restrictions on ~-.....~'^-^-```'_-,` '-.............'.......... ,�^.....-.~ 24'
A-35Audit Act .......- ...........`...... ...... '-=....... -____ 24�
A-36. Add - ...... ~~~~--''-~`'`''~^~.^~^--~--,-^~-^~^ '25
SRF11CX103
TABLE OF CONTENTS (continued)
EXHIBIT B
SECURITY REQUIREMENTS
Article Page
B- 1. No Priority for Additional Loans.......... ............___.......... ........ 26
B- 2. Rates and Charges ,........................... ...................... ........__........................... 26
B- 3. Security Interest............... ......................... ................ ....... ........ 26
B- 4. Reserve Fund ........ ......................__...... ........ ...............................__..... 26
B-5. Legal Obligation ..............__.............................. ............ ...... ........................... 27
EXHIBIT C
SPECIAL REQUIREMENTS
C- 1. Security...................... ............................................ ........._........... ........................ 28
C- 2. Additional Requirements....... ......................... ................... 28
EXHIBIT D
COMPLIANCE WITH DAVIS BACON
D- 1. Davis-Bacon Provisions .................. ................................ .......... ..... 30
EXHIBIT E
NEW RESTRICTIONS ON LOBBYING
E-1. New Restrictions on Lobbying......................................_................... ...... 31
EXHIBIT F
COMPLIANCE WITH CROSS-CUTTING FEDERAL AUTHORITIES
F- 1. Compliance with Federal Authorities..........__....... ........ ....... 42
F- 2. Equal Employment Opportunity Requirements.....:...... ............................ ..... 43
F- 3. Participation of Disadvantaged Business Enterprises ..... ....... 45
F- 4. Procurement Prohibitions_._... .......... ......_.-_............. ............ 46
SRF11CX103
TABLE OF CONTENTS (continued)
Article Page
F- 5. Debarment and Suspension ................................................................................... 46
F- 6. Uniform Relocation and Real Property Acquisition Act........................................... 48
SRF11CX103
ATTACHMENTS
Attachment 1. Fiscal Services and Deposit Account Control Agreement (Section 13)
Attachment 2. Deposit Account Maintenance Agreement (Article A-3(d))
Attachment 3. Initial Budget Summary (Article A-3(f))
Attachment 4. Claim for Disbursement of Funds (Article A-6(a))
Attachment 5. Final Release (Article A-6(f)(4))
Attachment 6. Supplier's Certification of Project Completion (Article A-8(b))
Attachment 7. Davis-Bacon Wage Provisions (Article A-33)
Attachment 8. Minority Business Enterprise — Women's Business Enterprise Goals
for Participation (Article F-3(a))
Attachment 9. Disadvantaged Business Enterprise Information Form (Article F-3(b))
Attachment 10. Example DBE/MBE/WBE Bid Solicitation (Article F-3(e))
Attachment 11. Bidders List (Article F-3(g))
Attachment 12. Minority Business Enterprise/Women Business Enterprise MBE/WBE
Quarterly Utilization Report (Article F-3(h))
Page 1 of 48
SRF11C 103
STATE OF CALIFORNIA
HEALTH AND HUMAN 'SERVICES AGENCY`
DEPARTMENT OF PUBLIC HEALTH
FUNDING AGREEMENT
BETWEEN
STATE OF CALIFORNIA
DEPARTMENT OF PUBLIC HEALTH
ANC►
CITY OF REDLANDS
PROJECT NUMBER: 3610937-094
UNDER THE SAFE DRINKING WATER STATE REVOLVING FUND LAW OF 1997
THIS FUNDING AGREEMENT (this "Agreement") is entered into by and
between the State of California Department of Public Health ("State") and City of
Redlands, a public agency,in the County of San Bernardino, State of California, duly
organized, existing, and acting pursuant to the laws thereof, ("Supplier'), which parties
o hereby agree as follows:
SECTION 1, PURPOSE OF FUNDING
This Agreement constitutes funding in the farm of a loan and a grant made by
State to Supplier under the provisions of California Safe Drinking Water State Revolving
Fuad Law of 1997, Part 12, Chapter 4. (commencing with Section 116760), of Division
194 of Health and Safety Code. The purpose of the funding is to assist in financing
construction of a project which will enable Supplier to meet safe drinkingwater
standards established pursuant to Part 12, Chapter 4 (commencing with Section
11 70), of Division 194 of the Health and Safety Code and California Code of
Regulations, Title 22, or to address other health concerns (the "Project"). Funds may
be used only for such eligible project costs as are approved by State.
This Agreement also constitutes a secured promissory note for Supplier's
repayment of the loan:
Supplier is solely responsible for the design, construction, operation, and
maintenance of the Project; and for all persons or entities engaged in such work;
including but not limited to contractors,;subcontractors, suppliers, and providers of
services. Review or approval of plans,, specifications, bid documents, or other
construction documents by State is solely for the purpose of proper administration of
the loan funds by State and shall not be deemed to relieve or restrict Suppliers
responsibility.
Page 2 of 48
RF11Cx10
SECTION 2. INCORPORATION OF OTHER DOCUMENTS
This Agreement incorporates by this reference all attachments to this
Agreement, Exhibit "A", "Standard Conditions", Exhibit "B" "Security Requirements",
Exhibit "C", "Special requirements"; Exhibit "D" "Compliance with Davis-Bacon"; Exhibit
"E" "Flew Restrictions on Lobbying"; Exhibit "F'° "Compliance with Cross-cutting Federal
Authorities"; Supplier's "Application For Construction Funds"; project plans and
specifications as submitted to and approved by State; ,and any attachments to said
documents.
Supplier accepts and agrees to comply with all terms, provisions, conditions, and
commitments of this Agreement, including all incorporated documents and exhibits
thereto, and to fulfill all assurances, declarations, representations, and statements
made by Supplier in its application, documents, amendments, and communications filed'
in support of its request for Safe Drinking Water Mate Revolving Fund financing,
including but not limited to any and all plans and specifications submitted to and
approved by State.
SECTION 3. PROJECT COST
Supplier represents that the totalcost of the Project is estimated to be
$14,060,958 (the "Project Cost") of which State agrees that $13,663x033 is eligible for
Safe Drinking Vater Mate Revolving Fund financing.
SECTION 4. LOAN AMOUNT
Pursuant to the Safe DrinkingWater State Revolving Fund Law of 1997, its
applicable rules and regulations, and subject to the availability of funds, State Will lend
to Supplier in accordance with the teras of this Agreement an amount not to exceed
$13,883,933 (the "Loan").
For valuable consideration, Supplier agrees to repay State the Principal Amount
of the Loan (as definers in Article -1, hereof)together with interest, Delinquent Interest
(as defined in Article -1 , hereof) and other fees and costs due thereon in accordance
with terms and conditions of this Agreement. Supplier's promise to pay as set forth in
this paragraph, shall survive termination of this Agreement for any reason including but
not limited to operation of law.
SECTION 5. GRANT AMOUNT
Pursuant to the Safe Drinking Water Mate Revolving Fund Lave of 1997, its
applicable rules and regulations, and subject to the availability of funds, State will
provide grant funding to Supplier in accordance with the terms of this Agreement in an
amount not to exceed 9 aero (the "Grant", with the Loan and the Grant hereinafter
collectively referred to as, the "Funding").
Page 3 of 48
RF11 C 1 03
SECTION 6. SUPPLIER'S COST
Supplier agrees to fund any portion of the Project Cost which is in excess of the
Funding. Supplier's cost for this Project is estimated to be $397,925, ("Supplier's
Cost"), Unless otherwise set forth in Exhibit "C" to this Agreement, "Special
Requirements", such Supplier's Cost shall be expended prior to the expenditure of
State loan funds unless such Supplier's Cost is funded by other State or Federal
Agencies, in which case fends shall be drawn on a pro-rata basis.
SECTION 7. COMPETITIVE BIDDING
,All construction contracts related in any way to the Project shall be let by
competitive bid procedures which assure award of such contracts to the lowest
responsible bidders. Supplier shall adhere to any applicable state or local ordinance for
competitive bidding and applicable labor laws.
Supplier shall not award a construction contract until a summary of bids and
identification of the selected lowest responsible bidder is submitted to and approved in
writing by State. A full explanation must be provided if Supplier is proposing to award a
construction contract to anyone other than the lowest responsible bidder.
SECTION 8. REQUIREMENTS FOR DISBURSEMENT
Not later than sixty ( 0) days following the Date of Execution (as defined in
Section 1 „ hereof), Supplier shall satisfy all conditions precedent to the disbursement
of the Funding, including Basic Conditions Precedent as set forth in Article A-S, hereof..
Failure by Supplier to satisfy said conditions and requirements by this date may, at the
option of State, result in cancellation of this Agreement under Article A-7, hereof.
SECTION gn RINE.. OF INTEREST
The rate of interest to be paid by Supplier on the Principal Amount of the Loan
shall be 2.5017 percent per annum (the "Date of Interest"). Interest shall begin to
accrue as of the date of each Disbursement (as defined in Article A- (b), hereof) of the
Loan.
SECTION 10, LOAN REPAYMENT TERM
The Loan has a repayment term of 20 years (the "Loan Repayment Term").
SECTION 11. SPECIAL REQUIREMENTS
Supplier shall satisfy the special requirements set forth in Exhibit "C". Failure by
Supplier to timely satisfy the special requirements and conditions may, at the option o
Page 4 of 43
SR 11 CX103
State, result in cancellation of this Agreement under Article A-7, hereof, or declaration
that Supplier is in default pursuant to Article A-27, hereof.
SECTION 12. OPERATION AND MAINTENANCE OF PROJECT
Upon project completion and for a period of 20 years, which is the reasonably
expected useful life of the Project, Supplier shall, as further consideration for the
Funding, commence and continue operation of the Project; shall cause the Project to be
operated in an efficient and economical manner; shall provide for the making of all
repairs, renewals, and replacements necessary for the effective operation of the
Project; and shall cause the Project to be maintained in as good of condition as upon its
construction, ordinary and reasonable wear and depreciation excepted. Failure by
Supplier to operate and maintain the Project in accordance with this provision may, at
the option of Mate, be considered a material breach of this Agreement and may be
treated as a default under Article A- 7, hereof.;
SECTION 13. FISCAL SERVICES AND DEPOSIT ACCOUNT CONTROL
AGREEMENT
Supplier shall enter into a fiscal services agreement with a Fiscal Agent
substantially in the farm of Aftachment I to this Agreement (the "Fiscal Services and
Deposit Account Control Agreement"). A Fiscal Agent shall be retained until all
amounts due to Mate under the terms of this Agreement have been paid in full.
Supplier shall open a separate deposit account (the "deposit Account")with the
Fiscal Agent, in which Supplier shall maintain funds, including the Reserve Fund (as
defined in Article B-4 ;hereof), sufficient to service the Loan. Funds from the Deposit
Account shall be used only for payment of principal and/or interest on the loan,, or an
delinquencies thereon, until the Loan is repaid in full.
Once State approves the Fiscal Services and Deposit Account Control
Agreement, Supplier shall not do any of the fallowing without first obtaining written
approval by Mate: amend the Fiscal Services and Deposit Account Control Agreement;
close the Deposit Account, or retain a new Fiscal Agent.
State shall have no obligation to make Disbursements ( s defined in Article A-
(b), hereof) until the Fiscal Agent has been engaged and the Fiscal Services and
Deposit Account Control Agreement between Supplier and the Fiscal Agent has been
approved by State.
SECTION 14. PROJECT OFFICIALS AND NOTICES
State's Contract Manager shall be the Chief, Drinking Water Technical Programs
Branch, Division of Drinking Water and Environmental Management, California
Department of Public Health:
Page 5 of 4
S F11G 10
State's Contract Manager shall be its representative for administration of this
Agreement, and shall have authority to make recommendations and findings with
respect to each controversy arising under or in connection with this Agreement,
including but not limited to, the interpretation, performance, or payment for work
performedunder this Agreement.. All such recommendations and findings shall be
communicated to the Chief; Division of Drinking Water and Environmental Management;
of the California Department of Public Health (the "Chief"), and disputes shall b
resolved in accordance with Article A-25, hereof.
Supplier's Contract Manager shall be its Water Resources Manager. Supplier's
Contract Manager shall be its representative for administration of this Agreement. All
communications given to Supplier's Contract Manager shall be deemed given to
Supplier and shall be binding on Supplier.
Either party may change its Contract Manager upon written notice to the other
party.
Notices required to be given in writing by Supplier to State under this Agreement
shall be sent to:
State of California
Department of Public Health
Division of drinking Water and Environmental Management
Safe Drinking Water State Revolving Fund Program
Attn: Chief, Drinking Water Technical Programs Branch
1816 Capitol Avenue, MS 7418
Post Office'Sax 997377
Sacramento, CA 98899-7377
Notices required to be given in writing by State to Supplier under this Agreement
shall be sent to.
City of Redlands
Attn: Water resources Manager`
b Cajon Street, Suite 15A
P.O. Box 39115'
Redlands, CA 9373-
change of address for delivery of notice may be made by either party b
written notice of such change of address to the other party.
All written notices that are required either expressly or by implications to be given
by one party to the other under this Agreement shall be signed for State by its Contrast
Manager and for Supplier by its Contract Manager. Except as otherwise expressly
required by this Agreement, all such notices shall be deemed to have been given if
Page 6 of 48
RF11 cX 163
delivered personally or if enclosed in a properly addressed postage prepaid envelope
and deposited in a United States Post {office for delivery by registered or certified mail.
SECTION 15. ENFORCEMENT
Any enforcement action, arising out of or relating to this Agreementmay b
brought by Stag or any agent thereof.
SECTION 15, MISCELLANEOUS PROVISIONS
ATTORNEY FEES
In the event either party commences an action or proceeding concerning the
subject mater of this Agreement, the prevailing party in such action or proceeding shall
be entitled to recover reasonable attorney fees incurred therein.
SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any court of
final jurisdiction, it is the intent of the parties that all other provisions of this Agreement
e construed to remain fully valid, enforceable, and binding on the parties.
GOVERNING LAW
This Agreement is governed by and shall be interpreted in accordance with the
laws of the State of California.
CHILD SUPPORT COMPLIANCE AOT'
Supplier acknowledges that it is the policy at this state that anyone who enters:
Into a contract with a state agency shall recognize the importance of child and family
support obligations and shall fully comply with all applicable state and federal laws
relating to child and family support enforcement, including„ but not limited to, disclosure
of information and compliance with earnings assignment orders, as provided in Chapter
(commencing with Section 5 00) of Part 5 of Division 9 of the Family Code. Supplier
further acknowledges that to the best of its knowledge it is fully complying with the
earnings assignment orders of all employees and is providing the names of all new
employees to the New Hire registry maintained by the Employment Development
Department
FEDERAL FINANCIAL ASSISTANCE
Supplier acknowledges that the source of funds disbursed to Supplier by State
under this Agreement includes federal financial assistance, and Supplier agrees to
comply with all applicable Cross-cutting Federal Authorities including these listed in
Exhibit "F" to this Agreement, and provisions of the Single Audit Act as set forth;in the
Federal Office of Management and Budget (OMS) Circular A-133
Page 7 of 48
RF11 X1X 3
LEGAL_ CAPACITY
Supplier hereby warrants and represents that it is a legal entity in good standing,
and that it has the authority to enter into this Agreement and to incur the indebtedness
described herein..
Supplier shall notify State as promptly as feasible of any proposed change in
Supplier's ownership, organization, legal form or service area.
VENUE
The parties agree that venue of any action between the parties arising out of this
Agreement, including disputes that may arise following termination of the Agreement,
shall be County of Sacramento, State of California.
DATE OF EXECUTION
"Gate of Execution" of this Agreement'shall be the date of the latest in time
execution by a party hereto.:
[Signatures appear on followingpage.]
Page 8 of 4
S F11C 103
IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
SUPPLIER STATE.
CITY OF REDLANDS STATE OF CALIFORNIA
DEPARTMENT OF PUBLIC HEALTH
AT f,.
By: lylt By,
Name: fete Aguilar Sam Irwin lame:
Title: Mayor City Clerk Title:
Date. June 21, 2011 }ate:
Address: 35 Cajon Street;, Suite 200
e Bax 3005 mailing
Redlands GA 92373
Approved a to egad ®rm
and Suff n
By. 6/4
Name: Pe-li- ALJ A�
Title: ,� A
Dater 1
Fagg 9 of 48
F11CX10
EXHIBIT A
STANDARD CONDITIONS
ARTICLE -1. DEFINITIONS
Whenever in this Agreement the following terms are used, their meaning shall be
s follows unless the context clearly requires otherwise.
Agreement or Contract--The Funding Agreement to which this "ExhibitA'
Standard Conditions" is appended,
ams--Calendar days unless otherwise expressly indicated.;
Month--Calendar month unless otherwise expressly indicated.
Fear--Calendar year unless otherwise expressly indicated,
Cross-cutting Federal Authorities--Federal laws and Executive Orders that apply
in federal financial assistance programs, or to projects and activities receiving federal
financial assistance, regardless of whether the statute authorizing the assistance mattes
them applicable. They are sometimes referred to as "cross-cutters".
Eligible Project Costs Those project costs which are eligible for funding under
applicable State and Federal law.
Fiscal Agent--A bank, which includes savings banks, savings and loan
associations, credit unions and trust companies, or any other financial institution or
entity approved by State responsible for funds deposited for the repayment of all
amounts due to State under the terms of this Agreement.
Force Account--The use of Supplier's own employees or equipment, for
planning, engineering, design, construction or construction related activities on the
Project
Grant Amount--The aggregate amount of the Grant disbursed to Supplier under
this Agreement; The Grant Amount is characterized as a subsidized loan principal
amount, as authorizedby 42 U.S.C. 300j-12(d), is not intended and shall not be
characterized as a federal subgrant.
Principal Amount of the Loan --The total amount disbursed to Supplier under this
Agreement less any Grant Amount disbursed and any amount of such total amount
disbursed that may have been repaid or remitted to State by Supplier:
Project Completion date--The date that is determined by Article A-8, hereof.
Page 10 of 48
RF11c 10
Public Water S stem or Public Water Supply System -A system for the provision
to the public of water for human consumption, as defined in Part 12 Chapter 4
(commencing with Section 116270), of Division 104 of the Health and Safety Cade, as it
may be amended from time to time;
ARTICLE -2. TERM F AGREEMENT
Subject to the provisions of Article A-7„ this Agreement shall become effective on
the bate of Execution and shall remain in effect until the Principal Amount of the Loan,
all interestthereon, and any other sums of money due to State under this Agreement,
have been paid in full or until the expiration of the period of time rewired for operation
and maintenance of the Project, as set forth in Section 12 of this Agreement, whichever
shall occur last (the "Term of Agreement").
ARTICLE A-3 BASIC CONDITIONS PRECEDENT
State shell have no obligation to disburse the Funding, or any portion thereof„
unless and until Supplier has done all of the fallowing:,
(a) Supplier's governing body has faxen action authorizing it to borrow the
Loan and to enter into this Agreement, and designating a representative to execute this
Agreement and to sign claims for Disbursements ( s defined in Article A- (b), hereof),-
(b)
ereof),(b) Supplier has dedicated a source of revenue for repayment of the Principal
Amount of the Loan plus all interest accrued,
(c) Supplier has executed all documents required to provide the security
required by Article B- , hereof,
(d) Supplier has executed a Deposit Account Maintenance Agreement
substantially in the form of Attachment 2 to this Agreement; and Supplier has
established all accounts required by the Deposit Account Maintenance Agreement;
(e) Supplier has engaged the services of a Fiscal Agent and the Fiscal
Services and Deposit'Account Control Agreement has been fully executed as required
by Section 13 of this Agreement; and
(f) Supplier has submitted an initial budget summary to State substantially in
the form of Attachment 3 to this Agreement and said initial budget summary has been
approved by State.
Determination of Supplier's satisfaction of the conditions of this Article A-3 is at
the sole discretion of State;
Page 11 of 48
F11 X10
ARTICLE -4. COMPLIANCE WITH LAW, REGULATIONS, ANIS PERMIT
REQUIREMENTS
Supplier shall at all times comply with, and require its contractors and
subcontractors to comply with, all applicable federal and state laws, rules and
regulations, permits, and all applicable local ordinances, specifically including, but not
limited to, environmental, procurement and safety laws, rules, regulations, permits, and
ordinances.
ARTICLE A-5. PROJECT CHANGES
The Project shall be constructed in accordance with the plans and specifications
as approved by State on September 8, 2010. Supplier shall not make any change in
the Project, or issue any change order to a contractor which affects the treatment
process, would increase the capacity of any project component, causes a significant
change in the location of any project component, or affects the timer completion of the
Project, without receiving prior written approval from State.
Supplier may request a one-time increase in the Funding. Such request shall be
based upon the final accepted construction bids. Such request may be granted or
denied at the sole discretion of State.
Supplier shall not use any funds from any contingency allotment without
receiving prior written approval from State.
ARTICLE A-6. DISBURSEMENTS BY STATE
(a) Claims. Supplier shall request disbursement by submitting to State a
claim(s) for incurred Eligible Project Costs. A claim for Disbursement {as defined in
Article A-6(b)) shall be provided in the farm of Attachment 4 to this Agreement. A
claim shall be submitted no less frequently than quarterly, but no more frequently than
once a month. Claim submission shall commence not later than six months
following the tate of Execution Each claim shall include:
(1) a statement of Eligible Project Costs that have been incurred for
work performed in constructing the Project during the period identified in the particular
claim'
) a statement of Eligible Project Costs that have been incurred for
the Project during the period identified in the particular claim, including, but not limited
to, legal, engineering, and administrative fees associated with the Project; and
(8) copies of invoices and receipts supporting such statements;
tbj Disbursements. Following the review and approval of a claim by State,
State will disburse to Supplier an approved amount subject to the availability of funds
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(each, a "Disbursement"). All Disbursements, and any and all interest earned by
Supplier on the Disbursements, shall be used solely to pay Eligible Project Costs. The
Loan shall be disbursed before the Grant is disbursed.
(c) Rejection of Claims. State may reject a claim if:
(1) It is submitted without signature;
(2) It is submitted under signature of a person other than Supplier's
duly authorized representative-,
(3) Supplier fails to timely submit a final claim within the time period
specified in Article A-6(f), hereof;
(4) Not submitted in accordance with subpart (a) of this Article A-6; or
(5) Contains costs incurred after the Project Completion Date (as
defined in Article A-8, hereof).
State will notify Supplier of any claim so rejected, and the reasons
therefore.
(d) Correction of Claims. A claim containing a mathematical error will be
corrected by State, after telephone notification to Supplier; and will thereafter be treated
as if submitted in the corrected amount. State will provide Supplier with notification of
the corrected claim.
(e) Adjustments to Claims. State will notify Supplier by certified or registered
mail, whenever, upon review of a claim, State determines that any portion or portions of
the costs claimed:
(1) Are ineligible to be financed by the Safe Drinking Water State
Revolving Fund under Federal or State law, or the terms of this Agreement,
(2) Do not constitute costs approved by State for financing under the
terms of this Agreement;
(3) Are not supported by invoices or receipts acceptable to State-, or
(4) Contains costs incurred after the Project Completion Date (as
defined in Article A-8, hereof).
Supplier may, within thirty (30) days of the date of receipt of such notice,
submit additional documentation to State to cure such deficiency(ies). If Supplier fails
to timely submit adequate documentation curing the deficiency(ies), State will adjust the
pending claim by the amount of the ineligible and/or unapproved cost(s). Supplier may
Page 13 of 48
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continue to submit additional documentation in support of rejected cost(s) and may
include such cost(s) with additional supporting documentation on a subsequent;claim.
(f) Final Claim and Disbursement. Supplier shall submit a final claire not
later than six ( ) months from the Project Completion Date, as set forth in Article A-8,,
hereof. In addition to the information required by subpart ( ) of this Article -d the final
claire shell include:
(1) A statement of full written disclosure of all sources and amounts of
funds contributed to the Project;
( ) A certification by Supplier's Contract Manager that the data
disclosed is true and correct
( ) Proof of a Recorded Notice of Completion; and
( ) A fully executed "Final Release" in the form of Attachment 5.
Should Supplier fail to make the full disclosure and certification required
by subparts (1) and ( ) of this paragraph (f), or should State become aware through any
means that Supplier did not disclose all funding sources for the Project; the project
funding may be referred to Mate Department of Finance for a full project audit:
Commencement of repayment of the Principal Amount of the Loan and interest
pursuant to Article A-1 3, hereof, may be required prior to the final Disbursement.
(g) Force Account. Supplier may use its awn employees for engineering
including development of pens and specifications; legal; and administrative costs, as
provided for in Supplier's initial budget summery, as required by Article A- (f), hereof;
Supplier may use its own employees for construction or construction related activities if
Supplier has obtained prior State approval,.
If Supplier is using the services of its own employees, Supplier shall establish
accounts and maintain records which reasonably document all employee;hoursand
costs charged to the Project and the associated tasks performed by each employee.
ARTICLE -7. WITHHOLDING OF LOAN AND GRANT T DISBURSEMENTS S
STATE AND CANCELLATION OF AGREEMENT
(a) Conditions for Withholding. If State determines that the Project is not
being carried out substantially in accordance with the provisions of this Agreement or
that Supplier has failed in any rather respect to comply with the terms and conditions of
this Agreement, State shall give written notice to Supplier of such failure to comply. I
Supplier does not cure any such failure to State's satisfaction within thirty ( 0) calendar'
days of receipt of such notice, State may withhold from Supplier all or any portion of the
Loan and/or Grant and tale any other action that it deems necessary to protect its
Page 14 of 4
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interests, including but not limited to declaring Supplier in default as set forth in Article
A- 7, hereof, or canceling this Agreement pursuant to subpart (b) of this Article -7.
(b) Withholding Entire Funding. If State determines to withhold the entire
Funding from Supplier pursuant to subpart (a) of this Article - , notice of such a
determination shall constitute a notice of cancellation of this Agreement, and this
Agreement shall no longer be binding on any party hereto. Said nonce of cancellation
shall be seat to Supplier by certified or registered mail, and shall be effective upon
receipt.
(c) Withholding Balance of Loan and/or Grant. Where a portion of the
Funding has been disbursed to Supplier and State has determined to withhold the
balance of the Loran and/or grant, State shell notify Supplier in writing, via certified or
registered snail, that State is withholding the balance of the Loan and/or Grant from
Supplier, pursuant to subpart (a) of this Article A-7. In such event, Supplier is deemedi
to be in default ,and subject to the provisions of,Article A-27, hereof.
ARTICLE A-8. TIMING OF PROJECT
(a) Supplier shall complete the Project not later than three(3)years from the
Date of Execution. Supplier's failure to complete the Project within the specified time
period may, at the option of State, be considered a material breach of this Agreement
and may be treated as a default under Article A-27, hereof.
(b) Within 15 days following completion of the Project, Supplier shall certify to
the local District Office of the State of California Department of Public Health that the
Project is complete and ready for final inspection. Supplier's certification, as required
by this subpart (b), shall be substantially in the form provided by State and attached
hereto as Attachment 6 to this Agreement.
(c) State will conduct a final inspection and certify that the Project is
complete:- Supplier shall not place the project into operation prior to State's
certification.
(d) The date of State's certification:or the date set forth in subpart (a) of this
Article A- , whichever shall occur first, shall be the "Project Completion Gate" for
purposes of this Agreement.
ARTICLE A-g. SUPPLIER'S CONTRACTS
Supplier shall be solely responsible for resolution of any and all disputes arising
out of or related to Supplier's contracts for construction of the Project, including but not
limited to bid disputes and payment disputes with Supplier's contractors and
subcontractors and shall provide appropriate releases (as set forth in Title 15 of the
Civil Code) as may be requested by State.
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ARTICLE A-10. AUDIT AND INSPECTION OF BOOKS AND RECORDS
(a) Upon execution of this Agreement and until 3 years following final
Disbursement, pursuant to Government Code Section 8546.7, the contracting parties
shall be subject to the examination and audit by State or any agent thereof. Parties are
also subject to examination and audit of the United States Environmental Protection
Agency, the Comptroller General of the United States, and the United States Office of
the Inspector General, with respect to all matters connected with the performance of
this Agreement, including, but not limited to, the cost of administering this Agreement.
If any litigation, claim, negotiations, audit or other action is commenced before the
expiration of said time period, all records must be retained until such action is resolved,
or until the end of said time period, whichever shall later occur. All records of Supplier
relating in any way to funding received pursuant to this Agreement shall be preserved
for this purpose.
(b) During regular office hours, each of the parties hereto and their duly
authorized representatives shall have the right to inspect and to make copies of any
books, records, or reports of either party pertaining to this Agreement or matters related
hereto. Each of the parties hereto shall maintain and shall make available at all times
for such inspection accurate records of all its costs, disbursements, and receipts with
respect to its activities under this Agreement. Failure or refusal by Supplier to comply
with this provision shall be considered a material breach of this Agreement, and State
may declare Supplier in default as set forth in Article A-27, withhold disbursements to
Supplier, or take any other action it deems necessary to protect its interests. The
provisions of this subpart (b) shall be effective until expiration of the time period
provided in subpart (a) of this Article A-10.
ARTICLE A-11. STATEMENT OF PRINCIPAL AMOUNT OF LOAN
(a) Transmission of Statement to Supplie . Within sixty (60) days after the
final Disbursement, State shall transmit to Supplier a written statement setting forth the
Principal Amount of the Loan.
(b) Remittance of Funds by Supplier. Within thirty (30) days from the final
Disbursement, Supplier shall remit to State any funds that were disbursed under this
Agreement and were not utilized to pay Eligible Project Costs or were otherwise not
valid Disbursements pursuant to the terms and conditions of this Agreement.
Such remittance to State shall not constitute repayment of any part of the
Principal Amount of the Loan, but shall be deemed to be a return to State of part of the
funds disbursed.
Page 16 of 48
SRF11CX103
ARTICLE A-12. INTEREST PAYMENTS DURING CONSTRUCTION
During construction, Supplier shall pay interest to State at the rate specified in
Section g of this Agreement on all Disbursements of the Loan. Interest on
Disbursements of the Loan shall not be deferred.
Mete will invoice Supplier semiannually for interest accrued daring the Project
construction period. Interest on each Disbursement of the Loan shall be calculated
using the fraction x1355 times the Rate of Interest, where x is the number of calendar
days remaining in the semiannual period from the date on which the Disbursement of
the Loan was made. Interest accrued during the construction period is due and
payable within thirty ( g) days of the date of tate invoice.
ARTICLE A-13: REPAYMENT OF PRINCIPAL AMOUNT OF LOAN ANIS INTEREST
(a) Terms of Repayment. State will invoice Supplier semiannually for
principal and any interest payments. Such invoices will include a statement of the then
Principal Amount of the Loan, the amount of the payment which constitutes principal to
be paid, and the amount of the payment which constitutes interest, if any, to be paid.
Supplier shall make semiannual payments to State no later than January
1 and July 1 of each year until the Principal Amount of the Loan is repaid in full.
Principal and interest payments shall commence no later than one (1) year from the
Project Completion Date. Supplier shall make level semiannual payments based on a
standard semiannual payment loan amortization method to be determined by State.
The standard amortization method shall incorporate the Principal Amount of the Loan
as determined by Article A-1 1, hereof, the Loan Repayment Term specified in
Secticn'10 of this Agreement, and the Rate of Interest, as specified in Section g of this
Agreement.
The final semiannual payment shall be in an amount equal to the then
outstanding Principal Amount of the Loan, plus any remaining unpaid accrued interest.
Interest on the Principal Amount of the Loan shall not be deferred.
Unless earlier`payment is required by the terms of this Agreement, the
Principal Amount of the Loan, interest, Delinquent Interest, and any other charges or
fees shall be due and payable 20 years from the Project Completion Date specified in
Article A-8, hereof.
(b)' Advance Payment Option. Supplier may make advance payment against'
principal without penalty, provided that any such advance payment shall be applied first
to interest then awed and then to principal, and provided further, that any such payment
shall not relieve Supplier of its obligations to retake payments in the amount and at the
time specified in subpart (a) of this Article A- 3 until the Principal Amount of the Loan is
repaid in full. Any advance payment must be coordinated with State prior to the making
of any such payment to ensure proper credit to Supplier's account.
Page 17 of 4
SRF11 X10
ARTICLE A-14. PAYMENT DELINQUENCY
Any payment of principal and/or interest required to be paid by Supplier to State
pursuant to this.Agreement which remains unpaid after it becomes due and payable
shall be delinquent. Delinquent interest charges shall be in addition to any other`
charges or payments owing State from Supplier and shall accrue at the rate of one
tenth of one percent {0.1%) per day, on the amount of such delinquent payment, for
each day it remains unpaid past the tenth (1 Oth) day after the date payment was due
(the "Delinquent Interest"). The Delinquent Interest assessed will not be added to the
Principal Amount of the Loan but will be treated as a separate account and obligation of
Supplier. Delinquent Interest shall accrue on the total payment amount from the due
date of payment through the date payment is made. Any payment by Supplier under
terms of this Agreement is deemed to have been made when it is received by Mate.
ARTICLE A-15. ACCOUNTING AND DEPOSIT OF DISBURSEMENTS
(a) Separate Accounting of Disbursements and Interest; Records. Supplier
shall account for Disbursements received separately from all other Supplier's fiends.
Supplier shall maintain accounting procedures that are in accordance with Generally
Accepted Accounting Principles. Supplier shall keep complete and accurate records of
all receipts, Disbursements, and interest earned on the Disbursements. Invoices must
be maintained for a period of at least three ( ) years following final Disbursement. All
other records must be maintained for the Loan Repayment Term.
Supplier shall require its agents, contractors and subcontractors to
maintain books, records, and ether documents pertinent to their work in accordance
with Generally,Accepted Accounting Principles. Records are subject to inspection by
State at any and all reasonable times.
(b) Disposition of Funds Disbursed. In addition to specific requirements set
forth in this Agreement, all Disbursements shall be deposited, administered, and
accounted for pursuant to all provisions of law applicable to Supplier.
(c) Interim and Final Audits. In addition to the provisions of Article A-10, at
any time following the Date of Execution and until completion of the Project, or final
Disbursement, whichever shall occur last, state reserves the right to conduct an audit of
Supplier's disposition of the Funding. After completion of the Project, State may require
Supplier to conduct a final audit at Supplier's expense; such audit to be conducted by
and a report prepared by an independent Certified Public Accountant.
Failure or refusal by Supplier to comply with these provisions shall be considered
a material breach of this Agreement and State may elect to pursue any remedies
included but not limited to those provided in Article A-7, hereof.
Page 18 of 48
SRF11CX103
ARTICLE A-16, INSPECTIONS OF PROJECT BY STATE
State shall have the right but not the duty to inspect the work being performed on
the Project at any and all reasonable times during the Term of Agreement. This right
shall extend to inspection of any portion of the Project under control of Supplier's
contractor and/or subcontractors, and Supplier shall include provisions ensuring such
access in all its contracts or subcontracts related to the Project.
ARTICLE A-17. PROHIBITION AGAINST DISPOSAL OF PROJECT WITHOUT
STATE PERMISSION
During the Term of Agreement:
(a) Supplier shall not sell, abandon, lease, transfer, exchange, mortgage,
hypothecate, or encumber in any manner whatsoever all or any portion of any real or
other property necessarily connected or used in conjunction with the Project, or with
Supplier's service of domestic water, without prior written consent of State. State may
require as a condition of such consent, that Supplier's proceeds from any such
disposition of any real or personal property be transferred to State to be applied to
Supplier's indebtedness under this Agreement.
(b) Supplier shall not take any action, including but not limited to actions
relating to user fees, charges and assessments that could adversely affect the ability of
Supplier to make timely payments or to otherwise meet its obligations under this
Agreement.
ARTICLE A-18. NONDISCRIMINATION CLAUSE
During the Term of Agreement, Supplier, its contractors and subcontractors shall
not deny this Agreement's benefits to any person on the basis of religion, color, ethnic
group identification, sex, age, physical or mental disability, nor shall they discriminate
unlawfully against any employee or applicant for employment because of race, religion,
color, national origin, ancestry, physical handicap, mental disability, medical condition,
marital status, age or sex. Supplier, its contractors and subcontractors shall ensure that
the evaluation and treatment of employees and applicants for employment are free of
such discrimination.
Supplier, its contractors and subcontractors shall comply with the provisions of
the Fair Employment and Housing Act (Government Code Section 12900 et seq.), the
regulations promulgated thereunder(California Code of Regulations, Title 2, Section
7285.0 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the
Government Code (Government Code Sections 11135-11139.7) and the regulations or
standards adopted by the awarding State Agency to implement such article.
By signing this Agreement, Supplier assures State that it shall comply with the
requirements of the Americans with Disabilities Act (ADA) of 1990, (42 U.S.C. 12101 et
Page 19 of 4
SRF11CX103
seq.), which prohibits discrimination on the basis of disability, as well as all applicable
regulations and guidelines issuedpursuant to the AICA; the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000d ti 988) et seq.; Section 504 of the=Rehabilitation Act of
1978, as amended, 29 U.S.C. 794 (1989); Federal Water Pollution Control Act
Amendments of 1972, Pub.L. No. 92-500, 86 Stat 816; and the Age discrimination Act
of 1976, as amended, 42 U.S.C. 6102 (1994); together with all applicable regulations
and guidelines adopted to implement serve (collectively, the "Anti-Discrimination
Laws").
Supplier agrees to collect and maintain information to .show compliance with the
Anti-Discrimination Laws including a list of discrimination complaints, reports of any
compliance reviews conducted by ether agencies descriptions of any pending
discrimination-based lawsuits and data on the racial, ethnic, national origin, seat and
handicap characteristics of the population it serves.
Supplier agrees to cooperate with State in all manner necessary to permit State
to adequately report to the United States Environmental Protection Agency on
Supplier's compliance with the Anti-Discrimination Laws.
Supplier, its contractors and subcontractors shall give written notice of their
obligations under this Article A-18 to labor organizations with which they have a
collective bargaining or other agreement.
Supplier's signature on this Agreement shall constitute a certification under the:
penalty of perjury under the laws of the State of California that Supplier has, unless
exempted, complied with the nondiscrimination program requirements of Government
Code Section 12990, and Title 2, California Code of Regulations Section 8198.
Supplier shall include the nondiscrimination and compliance provisions of this
Article A-18 in all contracts and subcontracts to perform work on the Project.
ARTICLE A-19. WORT RS" COMP NSATION CLAUSE
Supplier affirms that it is mare of the provisions of Section 8700 of the Labor
Codi:, which requires every employer to be insured against liability for workers'
compensation or to undertake self-insurance in accordance with the,provisions of that
code, and Supplier affirms that it will comply with such provisions before commencing
the performance of the work under this ,Agreement and will make its contractors and
subcontractors aware of this provision.
ARTICLE A-20. SUCCESSORS AND ASSIGNS
This Agreement and all of its provisions shall inure to the benefit of, apply to, and
bind the heirs, successors and assigns of the parties hereto. No assignment or transfer
of this Agreement or any part hereof by Supplier shall be valid unless and until it is
Page 20 of 48
SR 11 X108
approved in writing b State and made subject to such reasonable terms and conditions
as State may impose.
ARTICLE'A- f. STATE TO BE HELD HARMLESS
Supplier shall indemnify, hold harmless, protect and defend State and its
officers, employees, agents and representatives from loss, suits, actions or claims
brought for, or on account of violation of laws, ordinances, rules, or regulations, or
injury, damage, or loss, including death, caused by acts or omissions of Supplier, its
employees, contractors, or agents; or in anyway arising from, or related to the Project.
ARTICLE A-22 REMEDIES NOT EXCLUSIVE
The use by either party of any remedy specified herein for the enforcement of
this. Agreement is not exclusive, and shall not deprive the party using such remedy of,
or limit the application of, any other remedy provided by law.
ARTICLE A-23. AMENDMENTS
This Agreement may be amended only by mutual written agreement signed by
the parties hereto. Requests by Supplier for amendments must be in writing stating the
amendment request and the reason for the request.
ARTICLE A- 4, WAIVER OF RIGHTS
It is the intention of the parties hereto that from time to time either party may
waive any its rights under this Agreement unless contrary to law. Any waiver b `
either party hereto of rights arising in connection with this Agreement shall not be
deemed to be a waiver with respect to any other rights or matters.
ARTICLE A-25. DISPUTE CLAUSE
Any dispute that Supplier may have regarding the performance of this
Agreement including, but not limited to, claims for Disbursements or extensions of time,
shall be submitted to State's Contract Manager identified in Section 14 of this
Agreement. State's Contract Manager may mare findings and recommendations and
shall transmit a copy of any such findings and recommendations to the Chief (a
defined in Section 14, hereof) who shall make a decision. Such decision shall be
written and transmitted to Supplier by certified or registered mail, and shall be final and
conclusive.
ARTICLE A-26. PERFORMANCE AND ASSURANCES
Supplier agrees to faithfully and expeditiously perform or cause to be performed
all Project work as described in the final plans and specifications as submitted and
approved, or as later amended and approved by State under this Agreement and to
Page 21 of 48
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apply funds received only to Eligible project Costs and to operate and maintain the
Project in accordance with applicable provisions of the law.
ARTICLE A-27. DEFAULT PROVISIONS
(a) Supplier will be in default under this Agreement if any of the following
occur (each, an"Event of Default"'),
(1) Supplier's failure to pay any installment when due, or the entire
indebtedness to State when due at the designated due date
( ) Supplier's failure to make any remittances required by this
Agreement;
( ) Supplier's material breach of this Agreement, or any supplement or
amendment thereto, or any other agreement between Supplier,and State evidencing or
securing Supplier's obligations under this Agreement;
(4) Supplier's making of any false warranty, representation, or
statement with respect to the Project or with respect to, or as required by, the terms of
this Agreement;
( ) Loss, theft, damage or impairment to any collateral given a
security under this Agreement;
(6) Seizure of, or levy on any collateral given as security under this
Agreement; and/or
(7) Dissolution or cessation of operations by Supplier, termination of
Supplier's existence, insolvency of Supplier, or ding of a voluntary or involuntary
bankruptcy petition by or on behalf of Supplier.
(b) When an Event of Default occurs, State shell give Supplier notice of
default. Supplier shall have thirty ( 0) calendar days from the date of such notice to
cure the default. If Supplier fails to timely cure the default to the satisfaction of Mate,
State may do any or all of the following.
(1) Declare that the aggregate amount of all Disbursements made by
State, including any portion of the Grant, shell be deemed the Loan, and shall be repaid
to State in accordance with the terms of this Agreement,
( ) Declare Supplier's obligations immediately due and payable, with
or without demand or notice to Supplier, which Supplier expressly waives,
( ) Terminate any obligation of State to make further Disbursements;
Page 22 of 4
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(4) Exercise all rights and remedies available to a secured creditor
after default, including, but not limited to, the rights and remedies of secured creditors
under the California Uniform Commercial Code;
(8) Perform any of Suppliers obligations under this Agreement for
Suppliers account;
(8) Notwithstanding the provisions of Section b, hereof, commencing
from the date of each Disbursement, apply the Rate of Interest specified in Section g,
hereof, to all Disbursements made by State, including any portion of the Grant,;and/or
( ) Tape any other action it deems necessary to protect its interests.
(c) Supplieragrees that any remedy provided in this Agreement is in addition
to and not in derogation of any other legal or equitable remedy available to State as a
result of a breach of this Agreement by Supplier, whether such breach occurs before or
after completion of the Project.
(d) No waiver by State of any breach or default will be a waiver of any other
breach or default:
ARTICLE A-28. DRUG-FREE WORKPLACE`CERTIFICATION
By signing this Agreement, Supplier hereby certifies under penalty of perjury
under the laws of the State of California that Supplier will comply with the requirements
of the Drug-Free Workplace Act of 1990 (Government Cade Section 8850 et seg.) and
will provide a drug-free workplace by taking the following actions:
(a) Publish a statement notifying employees that unlawful manufacture,
distribution, dispensation, possession, or use of a controlled substance is prohibited
and specifying actions to be taken against employees for violations,
(b) Establish a Drug-Free Awareness program to inform employees about all
of the following:
(1) The dangers of drug abuse in the workplace;
( ) The person's:or organization's;policy of maintaining a drug-free
workplace;
( ) Any available counseling, rehabilitation and employee assistance
programs, and
(4) Penalties that may be imposed upon employees for drug abuse
violations.
Page 23 of 48
SRFIICX103
(c) Every employee who works on the Project:
(1) Will receive a copy of Supplier's drug-free policy statement; and
(2) Will agree to abide by terms of Supplier's statement as a condition
of employment on the Project.
This Agreement may be subject to suspension of payments or termination, or
both, and Supplier may be subject to debarment if State determines that (1) Supplier
has made a false certification, or (2) Supplier violates the certification by failing to carry
out the requirements of this Article A-28.
ARTICLE A-29. CONFLICT OF INTEREST--CURRENT AND FORMER STATE
EMPLOYEES
Supplier shall comply with, and shall require that all of its owners, officers,
directors, agents, representatives and employees are at all times in compliance with,
currently applicable laws and regulations pertaining to conflicts of interest of current and
former state employees, including but not limited to Government Code Sections 1090 et
seq. and 87100 et seq., Public Contract Code Section 10410 et seq.; and California
Code of Regulations, Title 2, Sections 18700 et seq.
ARTICLE A-30, ADDITIONAL INSURED
Supplier agrees that for any policy of general liability insurance concerning the
construction of the Project, it will cause, and will require its contractors and
subcontractors to cause, a certificate of insurance to be issued showing State, its
officers, agents, employees, and servants as additional insured; and shall provide State
with=a copy of all such certificates prior to the commencement of construction of the
Project.
ARTICLE A-31. PROHIBITED USE OF STATE FUNDS FOR SOFTWARE
Supplier certifies that it has appropriate systems and controls in place to ensure
that the Funding will not be used in the performance of this Agreement for the
acquisition, operation or maintenance of computer software in violation of copyright
laws.
ARTICLE A-32. LABOR COMPLIANCE
Supplier shall comply with Public Resources Code Section 75075 and all
applicable implementing guidelines and regulations adopted by California Department
of Industrial Relations, regarding Labor Compliance Programs. Supplier's failure or
refusal to comply with this requirement shall be considered a material breach of this
Agreement.
Page 24 of 48
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ARTICLE A-33. DAVIS-BACON ACT COMPLIANCE
Supplier understands and acknowledges that Pub.L 111-85 and Section 1450(e)
of the Safe Drinking Water Act (42 U.S.C. gOj-g(e)) mare applicable provisions of
sections 3141.3144, 3146, and 3147 of Title 40 of United States Code ("Davis-Bacon
Act") and applicable regulations and guidance regarding wage rates payable to laborers
and mechanics employed by contractors and subcontractors on the Project.
Supplier agrees to comply with all applicable Davis.-Bacon Act requirements for
all Project construction or construction related activities occurring on or after
October 30, 2009`.
On or after the Cate of Execution, Supplier agrees to include, or cause to be
included, in full, the applicable language set forth in Attachment 7, hereof, in all Project
bid solicitation documents and in all Protect contracts and subcontracts in excess of
,1300 entered into for the actual construction, alteration and/or repair, including
painting and decorating of any Project component.
Supplier shall send a report to Mate at the end of each calendar quarter and on
a form acceptable to the Mate, in which Supplier shall certify to Mate that all applicable
Davis-Bacon Act requirements for the Project are being complied with, including,
without limitation, the requirement that Supplier certify to Mate that Supplier is collecting
and reviewing certified Davis-Bacon payrolls from Supplier's construction contractors.
Supplier's failure to provide the quarterly reports required by this Article A-33 may
result in State's withholding disbursements until the reports are provided in a form
acceptable to the State.
ARTICLE.. A-34. NEW RESTRICTIONSON LOBBYING
If Supplier receives $100,000 or more in federal funds disbursed under this
Agreement, Supplier agrees to comply with all requirements of Title 40 CFR Part 34
"Neer Lobbying Requirements", as the same may be amended from time to time, and to
include, or cause to be included, in full, the language set forth in Exhibit "E" hereof, in
all Project contracts and subcontracts.
ARTICLE A-35. SINGLE AUDIT ACT
If Supplier receives $500,000 or more in federal awards in a year from any
source, including federal funds disbursers under this Agreement, Supplier agrees to
comply with all requirements of the Office of Management and;Budget Circular A-1 33
issued pursuant to the Single Audit Act, as the same may be amended from time to
time.
Page 25 of 4
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ARTICLE A-36. ADDITIONAL REPORTING
Supplier acknowledges that, from time to time during the terra of this Agreement,
State may receive further guidance from the United Metes Environmental Protection
Agency ("USEPA") which may require additional information/reporting from Supplier.
Upon such guidance from USEPA, State will notify Supplier in writing. Ippon
notification, Supplier agrees to provide the requested info rmatidnfreports to State in the
time period specified. Supplier's failure to provide the requested information/report in
the time specified may be deemed by State to be a material breach of this Agreement
and may be treated as a default under Article A-2 .
ARTICLE A-37. DATA UNIVERSAL NUMBER SYSTEM (DUNS)
Supplier shall maintain current DUNS registration(s) in the Dun & Bradstreet
database (hftp://f`ed.qov.dnb.com/webform) at all times during which they have active
federal awards funded with Safe Drinking Water State Revolving Fund funds.
Page 28 of 48
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EXHIBIT B
SECURITY REQUIREMENTS
ARTICLE B-1 NO PRIORITY FOR ADDITIONAL_LOANS
Supplier agrees that it shall not incur any additional indebtedness having any
priority in payment over Supplier's obligations to State under this Agreement, and that it
shall not give security In any facility or equipment, which are constructed or obtained
under the terms of this Agreement, without obtaining prior written consent of State,
which consent shall not be unreasonably withheld.
ARTICLE B-2 DATES AND CHARGES
Supplier agrees that it will levy and collect assessments or user charges as may
be necessary to operate and to maintain the Project and to meet the payments of the
Loanwhen due, and if for any reason, gross revenues prove insufficient to make
payments due pursuant to this Agreement, Supplier agrees to raise sufficient funds
through increased user charges or assessments or any other legal means available to it
to meet the Loan payments and to operate and to maintain the Project:.
ARTICLE B-3 SECURITY INTEREST
Supplier pledges to repay the entire Principal Amount of the Loan, together with
all interest thereon, as set forth in this Agreement, from net revenues from the 506403
Debt Service Fund, and Supplier hereby pledges said 50 403 Debt Service Fund as
collateral (the "Collateral") to secure repayment of the Loan. Supplier hereby
represents and agrees that its pledge of the Collateral shall create and constitute a lien
and security interest in the Collateral in accordance with the provisions of Government
Code Section 5450, et seq.
By its signature to this Agreement, Supplier certifies that any revenue derived
from property-related fees and charges needed for the Project or the debt associated
with.the Project, including but not limited to the Leen obligations under this Agreement;
has been approved in accordance with Article XIII C and XIII D of the California
Constitution (Proposition 218), or Supplier hes obtained a legal opinion explaining why
such procedures are not applicable.
ARTICLE Bao RESERVE FUND
Supplier agrees to provide for the accumulation of necessary reserves (the
"Reserve Fuad"") in accordance with Section 13 of this Agreement to assure that funds
will be available to make the semiannual payments when due, At a minimum, a reserve
of two semiannual payments shall be accumulated during the first ten 10} years of
the Loan Repayment Term and thereafter be maintained at that level. The Reserve
Fund shall be maintained and administered by the Fiscal Agent.
Page 27 of 48
SRF11CX103
ARTICLE B-5 LEGAL OBLIGATION
This Agreement and payment due hereunder, shall not in any way be construed
to be a debt of the City of Redlands in contravention of any applicable constitutional or
statutory limitations or requirements concerning the creation of indebtedness nor will
anything contained in this Agreement constitute a pledge or obligation of general
revenues, funds, or moneys for which City of Redlands is obligated to levy or pledge
any form of taxation.
Page 28 of 4#
SRFI IC 10
EXHIBIT D
SPECIAL REQUIREMENTS
ARTICLE -1 SECURITY
Supplier grants to State a security interest in the following:
(a) The Collateral, as more fully described in Article B-3t hereof-, and
(b) The Deposit Account, as more fully described in Section 13 hereof.
State reserves the right to require, and Supplier agrees to provide, security in
additional real and/or personal property which State determines is reasonably
necessary to secure payment of Supplier's obligations under this Agreement. Supplier
shall execute any and all documents required by State to create, perfect and maintain
Mate's security interest(s), including any amendments, modifications, and/or new or
revised documents which State determines are reasonably necessary to create, perfect,
maintain, preserve, and protect State's security interest(s).
ARTICLE C-2 ADDITIONAL REQUIREMENTS
(a) Supplier agrees to establish water rates and charges sufficient to
generate and maintain net income from its 506403 Debt Service Fund equal to at least
1.2 times total debt service (the "Debt Coverage Natio"), and agrees to maintain, at all
times, the Debt Coverage Ratio until the entire Principal Amount of the Loan has been
repaid in full. Supplier also agrees to demonstrate Supplier's satisfaction of the Debt
Coverage Ratio to State by submitting a copy of Supplier's certified audited financial
statements to State on the date which is the earlier of (i) ninety (90)days after,dune 31
of any year, or (ii)twenty ( d) days following State's written request for such
information. Included with the certified audit financial statements shall also be a
statement from Supplier certifying to its conformance with the Debt Coverage Ratio
requirement.
(b) In connection with the Project, Supplier shall implement and maintain
practices substantially equivalent to the urban water conservation "best management
practices" of the California Urban Water Conservation Council.
(c) Notwithstanding the time period to complete the Project prodded in Article
A-8(a) hereof, Supplier shall complete the project not later than October 31, 2011
(d) Supplier shall notify' State's Sari Bernardino District Office when the
Project is twenty-five percent (25%) complete, fifty percent (50%) complete and
seventy-five (75%) complete.
Page 29 of 48
SRF1 1 CX103
(e) Supplier shall notify State's San Bernardino District Office prior to any
start-up testing of the treatment facilities.
(f) Commencing with continuing throughout construction of the Project,
Supplier agrees to implement and maintain the mitigation measures identified in the
Hinckley Water Treatment Plan Expansion Mitigated Negative Declaration (State
Clearing House No. 2009091071) for the Project.
Page 30 of 4
S€F13CX10
EXHIBIT D
COMPLIANCE WITH DAVIS-BACON
ARTICLE D-1. DAVIS-BACON PROVISIONS
Supplier is required to comply with all applicable Davis-Bacon Act requirements
for all Project construction or construction related activities occurring on or after
October 30, 2009
The USEI A Region g has provided guidance on the Davis-Bacon Act
requirements, which is attached hereto as "Attachment 7" and incorporated herein by
reference. As used in Attachment 7, the term "su recipient" means Supplier, and the
teras "State", "State recipient" and "recipient" each mean the State of California
Department of Public Health.
If Supplier is a governmental entity (including, without limitation, a city, county,
city and county, or local agency), the applicable contract language that is required is set
forth in Section I of Attachment 7. If Supplier is not a governmental entity, the
applicable contract language that is required is set forth in Section ll of Attachment 7.
Page 31 of 48
SRF11CX103
EXHIBIT E;
NEW RESTRICTIONS ON LOBBYING
ARTICLE E-'l. NEW RESTRICTIONS ON LOBBYING
40 CFR Part 34 – New Restrictions on Lobbying
Subpart A—General`
§34.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a Federal contract,
grant, loan, or cooperative agreement to pay 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 ars employee of a Member of Congress in connection with
any of the following covered Federal actions: 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.
(b) Each person who requests or receives from an agency a Federal contract, grant,
loan, or cooperative agreement shall file with that agency a certification, set forth in
appendix A, that the person has not made, and will not make, any payment prohibited
y paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal connect, grant,
loan, or a cooperative agreement'shall file with that agency a disclosure form, set forth
in appendix S, if such person has made or has agreed to make any payment using
nonappropriated funds (to include profits from any,covered Federal action), which would
be prohibited under paragraph (a) of this section if paid for with appropriated funds.
(d) Each person who requests or receives from an agency a commitment providing for
the United States to insure or guarantee a lean shell file with that agency a statement,
set forth in appendix A, whether that person has made or has agreed to make any
payment to influence or attempt 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 that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment providing for
the United States to insure or guarantee a loan shall file with that agency a disclosure
form, set forth in appendix S, if that person has made or has agreed to make any
payment to influence or attempt 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 that loan insurance or guarantee.
Rage 32 of 4 ,
SRF11CX10
§34.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive departments and
agencies as well as independent regulatory commissions and Government
corporations, as defined in 31 U.S.C. '9101(1).
(b) Covered Federal action means any of the following Federal actions:
1) The awarding of any Federal contract,
( ) The malting of any Federal grant;
(3) The malting of any Federal loan;
(4) The entering into of any cooperative agreements and,,
( The extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a commitment
providing for the United States to insure or guarantee a lean. Loan guarantees and loan
insurance are addressed independently within this part.
(c) Federal contract means an acquisition contract awarded by an agency, including
those subject to the FederalAcquisition Regulation (FAR), and any other acquisition
contract for real or personal property or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement entered into by an
agency.
(e) Federal grant means an award of financial assistance in the form of money,or
property in lieu of money, by the Federal Government or a direct appropriation made by
law to any person. The term does not include technical assistance which provides
services instead' of money, or other assistance in the form of revenue sharing, loans,;
loan guarantees, loan insurance, interest subsidies, insurance, or direct United States
cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not include loan
guarantee or loan insurance.
gl Indian tribe and tribal organization have the meaning provided in section 4 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C� 450B). Alaskan
Natives are included under the definitions of Indian tribes in that Act.
Page 33 of 48
RF1 CX103
(h) Influencing or attempting to influence means making, with the intent to influence,
any communication to or appearance before an officer or employee or any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or insurance of a
loan made by a person.
0) Local government means a unit of government in a State and, if chartered,
established, or otherwise recognized by a State for the performance of a governmental
duty, including a local public authority, a special district, an intrastate district, a council
of governments„a sponsor group representative organization, and any other
instrumentality of a local government,
(k) Officer or employee of an agency includes the following individuals who are
employed by an agency::
(t) An individual who is appointedto a position in the Government under title Sri U.S.
Code, including a position under a temporary appointment;
( ) A member of the uniformed services as defined in section 101( ), title 37, U.S'.
Code,
(3) A special Government employee as defined in section 2027 title 18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,; as defined by the
Federal Advisory Committee Act, title 5, U.S..,Code appendix 2.
(1) Person means an individual, corporation, company, association, authority, firm,
partnership, society, State, and local government, regardless of whether such entity i
operated for profit or not for profit. This term excludes an Indian tribe, tribal
organization, or any other Indian organization with respect to expenditures specifically
permitted by other Federal law:
(m) Reasonable-compensation means; with respect to a regularly employed officer or
employee of any person„ compensation that is consistent with the normal compensation
for such officer or employee for work that is not furnished to, not funded by, or not
furnished in cooperation with the Federal Government,
(n) Reasonable payment means, with respect to professional and other technical
services, a payment in an amount that is consistent with the amount normally paid for
such services in the private sector.:
(o) Recipient includes all contractors, subcontractors at any tier, and subrantees at
any tier of the recipient of funds received in connection with a Federal contract, grant,
loam or cooperative agreement. The term excludes an Indian tribe, tribal organization,
Page 34 of 43
SRF11CX103
or any other Indian organization with respect to expenditures specifically permitted b
other Federal law.
(p) Regularly employed means, with respect to an officer or employee of a person
requesting or receiving a Federal contract, grant, loan, or cooperative agreement or a'
commitment providing for the United States to insure or guarantee a loan, an officer or
employee who is employed by such person for at least 130 working days within one
year immediately preceding the date of the submission that initiates agency
consideration of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An officer or
employee who is employed by such person for less than 130 working days within one
year immediately preceding the date of the submission that initiates agency
consideration of such person shall be considered to be regularly employed as soon as
he or she is employee by such person for 130 working days.
(q) Mate means a State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, a territory or possession of the United Mates, an
agency or instrumentality of a State, and a multi-Mete, regional, or interstate entity
having governmental duties and powers,
4,110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if required, with each
submission that initiates agency consideration of such person for:
(1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000,`
or
( ) An award of a Federal loan or a commitment providing for the United States to
insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form; if required, upon receipt
by such person of:
(1)A Federal contract, grant, or cooperative agreement exceeding $100,000; or
( )A Federal loan or a commitment providing for the United Mates to insure or
guarantee a loan exceeding $150,000,
Unless such person previously filed a certification, and adisclosure form, if required,
under paragraph (a) of this section.
(c) Each person shall file a disclosure farm at the enol of each calendar quarter in which
there occurs any event that requires disclosure or that materially affects the accuracy of
the information contained in any disclosure form previously filed by such person under
Page 35 of 48
R 1 I CX10
paragraphs (a) or (b) of this section. An event that materially affects the accuracy of the
information reported includes.
(1) A cumulative increase of $25,000 or more in the amount paid or expected to be paid'
for influencing or attempting to influence a covered Federal action; or
( ) A change in the person(s) or individual(s) influencing or attempting to influence a,
covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted to influence or
attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in paragraphs (a) or
(b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal contract;
( ) A subgrant, contract, or subcontract_exceeding $100,000 at any tier under a Federal
grant,
(3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan
exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a Federal
cooperative agreement;
Shall file a certification, and a disclosure form, if required, to the neat tier above:
(e) All disclosure forms, but not certifications, shall be forwarded from tier to tier until
received by the person referred to in paragraphs (a) or (b) of this section. That person
shall forward all disclosure farms to the agency:
(f)Any certification or disclosure form filed under paragraph (e) of this section shall be
treated as a material representation of fact upon which all receiving tiers shall rely. All
liability arming from an erroneous representation shall be borne solely by the tier filing
that representation and shall not be shared by any tier to which the erroneous
representation is forwarded. Submitting an erroneous certification or disclosure
constitutes a failure to file the required certification or disclosure, respectively. If a
person fails to file a required certification or disclosure, the United States may pursue
all available remedies, including those authorized by section 1352, title 31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1080, but not made
before that date, certifications shall be required at award or commitment, covering
activities occurring between December 23, 1080, and the date of award or commitment,
However, for awards and commitments in process prior to the December 23, 1989
effective date of these provisions, but not made before December 23, 1080, disclosure
Page 36 of 46
SRF11CX103
forms shallnot be required at time of award or commitment but shall be filed within 30<
days.
(h) No reporting is required for an activity paid for with appropriated funds if that activity
is allowable under either subpart B or C.
Subpart B—Activities by Own Employees
§34.200 Agency and legislative liaison,
(a) The prohibition on the use of appropriated funds, in §34.100 (a), does not apply in
the case of a payment of reasonable compensation made to an officer or employee of a
person requesting or receiving a Federal contract, grant, loan, or cooperative
agreement if the payment is for agency and legislative liaison activities not directly
related to a covered Federal action_.
(b) For purposes of paragraph (a) of this section, providing any information specifically
requested by an agency or Congress is allowable at any time.
(c) For purposes of paragraph (a) of this section, the following agency and legislative
liaison activities are allowable at any time only where they are not related to a specific
solicitation for any covered Federal action:
(1) Discussing with aro agency (including individual demonstrations) the qualities and
characteristics of the person's products or services, conditions or terms of sale, and
service capabilities; and,
( )Technical discussions and other activities regarding the application or adaptation o
the person's products or services for an agency's use.
(d) For purposes of paragraph (a) of this section, the following agencies and legislative
liaison activities are allowable only where they are prior to formal solicitation of any
covered Federal action.:
(1) Providing any information not specifically requested but necessary for an agency to
make an informed decision about initiation of a covered Federal action;
( ) Technical discussions regarding the preparation of an unsolicited proposal prior to
its official submission; and,
( ) Capability presentationsbypersons seeking awards from an agency pursuant to the
provisions of the Small Business act, as amended by Public Law 95-507 and other
subsequent amendments.
(e) Only these activities expressly authorized by this section are allowable under this
section.
Page 37 of 48
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§34.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in §34.100 (a), does not apply in
the ease of a payment of reasonable compensation made to an officer or employee of a
person requesting or receiving a Federal contract, grant, loan, or cooperative
agreement or an extension,__continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is for professional or
technical service rendered directly in the preparation, submission, or negotiation of any
bid, proposal, or application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a condition
for receiving that Federal contract, grant, loan, or cooperative agreement,
(b) For purposes of paragraph (a);of this section, "professional and technical services"
shall be limited to advice and analysis directly applying any professional or technical
discipline. For example, drafting of a legal document accompanying a bid or proposal
by a lawyer is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered directly in the
negotiation of a contract is allowable. However, communications with the intent to
influence made by a professional (such as a licensed lawyer) or a technical person
(such as a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or technical expertise
and unless the advice or analysis is rendered directly and solely in the preparation,
submission or negotiation of a covered Federal action. Thus, for example,
communications with the intent to influence made by a lawyer that do not provide legal
advice or analysis directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not allowable under
this section because the lawyer isnot providing professional legal services. Similarly,
communications with the intent to influence made by an engineer providing an
engineering analysis prior to the preparation or submission of a bid or proposal are not
allowable under this section since the engineer is providing technical services but not
directly in the preparation, submission or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for receiving a covered
Federal ward include those required by law or regulation, or reasonably expected to be
required by law or regulation, and any other requirements in the actual award
documents;
(d) Only these services expressly authorized by this section are allowable under this
section.,
§34.210 Reporting.
No reporting is required with respect to payments of reasonable compensation made to
regularly employed officers or employees of a person.
Page 38 of 4
Subpart C—Activities by Other Than Own Employees
§34.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in §34.100 (a), does not apply in
the case of any reasonable payment to a person, other than an officer or employee of a
person requesting or receiving a covered Federal action, if the payment is for
professional or technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or
cooperative agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in §34.118 (a) and b) regarding filing a disclosure form
by each person, if required, shall not apply with respect to professional or technical
services rendered directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, "professional and technical services
shall be limited to advice and analysis directly applying any professional or technical
discipline. For example, drafting or a legal document accompanying a bid or Proposal'
by a lawyer is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipmentrendered directly in the
negotiation of a contract is allowable. However, communications with the intent to
influence made by a professional (such as a licensed lawyer) or a technical person
(such as a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or technical expertise
and unless the advice or analysis is rendered directly and solely in the preparation,
submission or negotiation of a covered Federal action. Thus, for example,
communications with the intent to influence made by a lawyer that do not provide legal
advice or analysis directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not allowable under
this section because the lawyer is not providing professional legal services. Similarly;
communications with the intent to influence made by an engineer providing a
engineering analysis prior to the preparation or submission of a bid or proposal are not
allowable under this section since the engineer is providing technical services but not
directly in the preparation, submission or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for receiving a covered
Federal award include those required by law or regulation, or reasonably expected to be
required by law or regulation, and any other requirements in the actual award
documents.
(e) Persons other than officers or employees of a person requesting or receiving a
covered Federal action include consultants and trade associations.
Fuge 39 of 4
SRFI I CX103
(f) Only those services expressly authorized by this section are allowable under this
section.
Subpart 1 - -Penalties and Enforcement
§34.400 Penalties.
(a) Any person who snakes an expenditure prohibited herein shall be subject to;a civil
penalty of not less than $10,000 and not more than $100,000 for each such
expenditure.
(b) Any person who fails to file or amend the disclosure farm (see appendix 13) to be
filed or amended if required herein, shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
(c) A;filing or amended filing on or after the date on which an administrative action for
the imposition of a civil penalty is commenced does not prevent the imposition of such;
civil penalty for a failure occurring before that date. An administrative action is
commenced with respect to a failure when an investigating official determines in writing
to commence ars investigation of an allegation of such failure.
d) In determining whether to impose a civil penalty, and the amount of any such
penalty, by reason of a violation by any person, the agency shall consider the nature,
circumstances, extent, and gravity of the violation, the effect on the ability of such
person to continue in business, any prior violations by such person, the degree of
culpability of such person, the ability of the person to pay the penalty, and such other
matters as may be appropriate:
(e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil`
penalty of $10,000, absent aggravating circumstances. Second and subsequent
offenses by persons shall be subject to an appropriate civil penalty between $10,000
and $100,000, as determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not prevent the United States
from seeking any other remedy that may apply to the same conduct that is the basis for
the imposition of such civil penalty.
34,400 Penalty procedures.
Agencies shall impose and collect civil'penalties pursuant to the provisions of the
Program Fraud and Civil Remedies Act, 31 U. . . 3803 (except subsection (c)), 3304,
3805, 3806, 3807, 3808, and 3812, insofar as these provisions are not inconsistent with
the requirements herein.
Page 40 of 4
R 11Cx103
§34.410 Enforcement.
The head of each agency shall take such actions as are necessary to ensure that the
provisions herein are vigorously implemented and enforced in that agency.
Subpart E—Exemptions
§34.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a covered;Federal
action from the prohibition whenever the Secretary determines, in writing, that such an
exemption is in the national interest. The Secretary shall transmit a copy of each such
written exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to implement
paragraph (a) of this section;
Subpart F—Agency reports.
§34.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure reports (see
appendix S) and, on May 37and November 30 of each year, submit to the Secretary of
the Senate and the Clerk of the House of Representatives a report containing a
compilation of the information contained in the disclosure reports received during the
six-month period ending on (!March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shad be available for public inspection 30 days
after receipt of the report by the Secretary and the Clerk.
(c) Information that involves intelligence matters shall be reported only to the Select
Committee on Intelligence of the Senate, the Permanent Select Committee on
Intelligence of the House of Representatives, and the Committees on Appropriations of
the Senate and the House of Representatives in accordance with procedures agreed to
by such committees. Such information shall not be available for public inspection.
(d) Information that is classified under Executive Order 12356 or any successor order
shall be reported only to the Committee on Foreign Relations of the senate and the
Committee on Foreign Affairs of the House of Representatives or the Committees on
Armed Services of the Senate and the House of Representatives (whichever such
committees have jurisdiction of matters>involving such information) and to the
Committees on Appropriations of the Senate and the House of Representatives in
accordance with,procedures agreed to by such committees. Such information shall not
be available for public inspection.
Page 41 of 48
RF11 CX'143
(e) The first semi-annual compilation shall be submitted on May 31, 1990, and shall
contain a compilation of the disclosure reports received from December 23, 1989 to
March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget (OMB), are
required to provide machine-readable compilations to the Secretary of the Senate and
the Clerk of the House of Representatives no later than with the compilations due on
May 31, 1991, OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable compilations to the
Secretary of the Senate and the Clerk of the;House of Representatives.
(h) Agencies shall beep the originals of all disclosure reports in the official files of the
agency.
§34,605 Inspector General Report.
(a) The Inspector General, or other official as specified in paragraph (b) of this section,,
of each agency shall prepare and submit to Congress each year, commencing with
submission of the President's Budget in 1991, an evaluation of the compliance of that
agency with, and the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to;strengthen or improve
the requirements;
(b) In the case of an agency that does not have an Inspector General, the agency
official comparable to an Inspector General shall prepare and submit the annual report,
or, if there is no such comparable official, the head of the agency shall prepare and
submit the annual report:_
(c) The annual report shall be submitted at the sante time the agency submits its annual
budget justifications to Congress.
(d) The annual report shall include the following. All alleged violations relating to the
agency's covered Federal actions during the year covered by the report, the actions
taken by the head of the agency in the year covered by the report with respect to those
alleged violations and alleged violations in previous years, and the amounts of civil
penalties imposed by the agency in the year covered by the report.
Page 42 of 4
SRF11CX103
EXHIBIT F
COMPLIANCE WITH
CROSS-GUTTING FEDERAL AUTHORITIES
ARTICLE F-1. COMPLIANCE WITH FEDERAL AUTHORITIES
(a) By its signature to this Agreement to which this Exhibit "F", is attached,
Supplier agrees to comply with all applicable state and federal laws and authorities,
including but not limited to the federal authorities listed below; and to the fullest extent
required by law, shall require compliance with said authorities by its:contractorsand
subcontractors on the Project.
• Procurement Prohibitions under Section 305 of the dean Air Act and Section 508 of
the Glean Water Act, including Executive Carder 11738, Administration of the Glean
Air Act and the Federal Water Pollution Control Act with Respect to Federal
Contracts, Grants, or Leans
• Uniform Relocation and Real Property Acquisition Policies Act, Pub. L. 91-545, as
amended
• Debarment and Suspension, Executive Order 12549
• Age discrimination Act of 1975, Pub. L. 94-135
• Title VI of the Civil Rights Act of 1964, Pub. L. 88-352 (
• Section 13 of the Federal Water Pollution Control Act Amendments of 1972, Pub. L.
92-500 (the CleanWater Act)
• Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112 (including Executive
Orders 11914 and 11 50)
• Equal Employment Opportunity, Executive Order 11246
• Women's and Minority Business Enterprise, Executive Orders 11525, 12138 and
12432
• Section 129 of the Small Business Administration Reauthorization and Amendment
Act of 1988, Pub. L. 100.590
(b) In partial compliance with the above list of Cross-cutting Federal
Authorities, Supplier agrees to tape certain actions specifically set forth in the following
Articles:
Page 43 of 48
SRFIICX103
ARTICLE F-2. EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS
Supplier agrees that it shall be deemed to be a contractor and shall comply with
the following requirements in that role:
(a) During the performance of this Agreement, the contractor agrees as
follows:
(1) The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, national origin, physical
or mental handicap, or age. The contractor will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without
regard to their race, color, religion, sex, national origin, physical or mental handicap, or
age. 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 career development
opportunities and selection for training, including apprenticeship. The contractor agrees
to post in conspicuous places available to employees and applicants for employment,
notices to be provided by the Federal Government setting forth the provisions of the
Equal Opportunity Clause and the Rehabilitation Act of 1973. Such notices shall state
the contractor's obligation under the law to take affirmative action to employ and
advance in employment qualified applicants without discrimination based on their race,
color, religion, sex, national origin, physical or mental handicap, or age, and the rights
of applicants and employees.
(2) The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all qualified applicants
will receive consideration for employment without regard to race, color, religion, sex,
national origin, physical or mental handicap, or age,
(3) The contractor will send to each labor union. or representative of
workers with which he has a collective bargaining agreement or other contract or
understanding of notice, to be provided by the Federal Government advising the labor
union or workers' representative of the contractor's commitments under the Equal
Opportunities Clause, and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
(4) The contractor will comply with all provisions of the Rehabilitation
Act of 1973 and of the Federal Executive Order No. 11246, as amended, and of the
rules, regulations, and relevant orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required by
Federal Executive Order No, 11246, as amended, and the Rehabilitation Act of 1973,
and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto,
and will permit access to his books, records, and accounts by the contracting agency
Page 44 of 4
SRF11CX103
and the Secretary of Labor for purposes of investigation to ascertain compliance with
such rules, regulations, and orders
(5) In the event of the contractor's noncompliance with the
requirements of this Equal Opportunity Clause or with the nondiscrimination clauses of
this Agreement or with any of such rules, regulations, or orders, this; Agreement may be
cancelled, terminated, or suspended in whale or in part and the contractor may
declared ineligible for further federal contracts in accordance with procedures
authorized in Federal Executive Order No. 11245 as amended, and such other
sanctions may be imposed and remedies invoked as provided in Federal Executive
Order No. 11245 as amended, or by rule, regulation, or order of the Secretary of Labor,
or as otherwise provided by law.
(7) The contractor will include the provisions of paragraphs (1)through
t7 f this Article F-2 in every contract, subcontract or purchase order related to this
Agreement unless exempted by rules, regulations, or orders of the Secretary of Labor
issued pursuant to Federal Executive Order No. 11246, as amended, or section 50of
the Rehabilitation Act of 1973, so that such provisions will be binding upon each
contractor, subcontractor or vendor. The contractor will tape such action with respect to
any subcontractor purchase order as may be directed by the Secretary of Labor or the
Director of Federal Compliance Programs or State may direct as a means of enforcing
such provisions including sanctions for noncompliance, provided, however, that in the
event the contractor becomes involved in, or is threatened with, litigation with a
subcontractor or vender as a result of such direction, the contractor may request in
writing to Mate, which, in turn, may request the United States to enter into such
litigation to protect the interests of the United Mates and State.
Each contractor shall file, and shall cause each of his subcontractors to
file,Compliance Deports with the contracting agency or the Secretary of Labor as may
be directed. Compliance Deports shall be filed within such times and shall contain such
information as to the practices, policies, programs, and employment policies, programs,
and employment statistics of the contractor and each subcontractor, and shall be in
such form, as the Secretary of Labor may prescribe.
Bidders or prospective contractors or subcontractors may be required to
state whether they have participated in any previous contract subject to the provisions
of Federal Executive Order 11246, as amended, or any preceding similar Executive
order, and in that event to submit, on behalf of themselves and their proposed
subcontractors, Compliance Departs prior to or as an initial part of their bid or
negotiation of a contract
tb In addition, if the Project is to he constructed in e geographical area that
has been designated by the Office of Federal Contract Compliance for special
treatment, Supplier agrees that it will undertake, and will require its contractors and
subcontractors to undertake affirmative action programs in accordance with regulations
and;.other directives promulgated by that Office,
Page 45 of 48
F11 x103
ARTICLE F-3. PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISES
(a) Supplier acknowledges that Executive Orders 11625,12138, and 12432
are applicable to this Agreement, and that the United States Environmental Agency
(EPA) adopted regulations to implement those requirements [40 Code of Federal
Regulations Part 33 Participation by Disadvantaged Business Enterprises in United'
States Environmental Protection Agency Programs— (Federal DBE Regulationsl). In
compliance with Federal DBE Regulations, Mate has negotiated "Fair Share
Objectives" with EPA, for participation of Minority Business Enterprises and Women'
Business Enterprises in procurement activity undertaken-with funds made available to
Supplier under this Agreement. The "Fair Share Objectives" are set forth in the CDPH
DBE Utilization Guidance attached as Attachment 8 to this Agreement and
incorporated herein by this reference. Supplier agrees that it will cooperate with and
assist State in realizing the "Fair Share Objectives" and will exercise good faith efforts
to achieve such participation of disadvantaged business enterprises, and in particular
agrees that in the selection of construction contractors, and for the procurement of
equipment, supplies, construction, and services related to the project, it, at a minimum,
has or will undertake the following affirmative steps:
(1) Include disadvantage business enterprises on solicitation lists;
(r) Assure that disadvantaged business enterprises are solicited
whenever they are potential sources;
( ) Divide total requirements, when economically feasible, into small
tasks or quantities to permit maximum participation by disadvantaged business
enterprises;
(4) Establish delivery schedules, when the requirements of the work
permit, which will encourage participation by disadvantaged business enterprises;
(5) Use the services of the Small business Administration and the
Office of Minority Business Enterprise of the U.S. Department of Commerce, and the
California Unified Certification at the California Department of Transportations, as
appropriate, and
(5) If any contractor awards subagreements, require the contractor to
take the affirmative steps in paragraphs (1) through (5) of this paragraph.
(b) Supplier'agrees that prior to the award of any contract for the procurement
of equipment, supplies, construction, or services related to the Project, it has or will
review the efforts of such contractor to include disadvantaged business enterprises and
will assure State that such contractor has complied with the requirements of this Article
F- : A form for providing said assurance will be provided by State in a form
substantially similar to that of Attachment 9 to this Agreement.
Page 46 of 48
SRF11CX103
(c) As required by Federal DBE Regulations, Supplier agrees to circulate bid
solicitation(s) for this project for a minimum of 15 days.
(d) As required by Federal DBE Regulations, Supplier agrees to require prime
contractor to pay subcontractors for satisfactory performance within 30 days from the
prime contractor's receipt of payment from the Supplier.
(e) Supplier agrees to include in procurement solicitation provisions related to
the utilization of Disadvantaged Business Enterprises in substantially the form of
Attachment 10, Supplier further agrees to include in each procurement solicitation EPA
Form 6100-2, EPA Form 6100-3, and EPA Form 6100-4 as required by Federal DBE
Regulations which are included in Attachment 10.
(f) Supplier agrees to submit the Good Faith Effort documentation received
from the selected prime contractor bidder to State.
(g) As required by Federal DBE Regulations, Supplier agrees to create and
maintain a bidders list of all firms that bid or quote on prime contracts or bid or quote
subcontracts on the project. Supplier shall maintain bidders list until Supplier has
certified project completion to State. (See Attachment 11.)
(h) Supplier agrees that it shall report to State on procurements and utilization
of Disadvantaged Business Enterprises semiannually, within fifteen (15) days after April
I and October 1, throughout the project, until after submission of the final claim,
Supplier shall report, using Attachment 12 to this Agreement.
ARTICLE F-4. PROCUREMENT PROHIBITIONS
By its signature on this Agreement, Supplier certifies that it will not procure
goods, services, or materials from any entity, or otherwise utilize any facility for the
construction of the Project, if such entity or facility is listed on the USEPA's List of
Violating Facilities, and Supplier further certifies it will comply with the provisions of
Executive Order No. 1738, 3 C.F.R. 799 (1973), Section 306 of the Clean Air Act 42
U.S.C. 7606 (1994) and Section 508 of the Clean Water Act 33 U.S.C. 1368 (1982),
ARTICLE F-5. DEBARMENT AND SUSPENSION
Supplier agrees that for purposes of the following subparts (a) and (b), Supplier
is the "prospective lower tier participant", and this Funding Agreement is the "proposal".
(a) Instructions for Certification
(1) By signing and submitting this proposal, the prospective lower tier
participant is providing the certification set out below.
Page 47 of 4
( The certification in this clause is a material representation of fact
upon which reliance was placed when this transaction was entered into. if it is later
determined that the prospective lower tier participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal Government, the,
department or agency with which this transaction originated may persue available
remedies, including suspension and/or debarment.
(8) The prospective lower tier participant shall provide immediate
written notice to the person to whom this proposal is submitted if at any time the
prospective lower tier participant learns that its certification was erroneous when
submitted or had become erroneous by reason of changed circumstances.
(4) The terms covered transaction, debarred; suspended, ineligible,
lower tier covered transaction, participant, person, primary covered transaction,_
principal, proposal, and voluntarily excluded, as used in this clause, have the meaning
set out in the Definitions and Coverage sections of rules implementing Executive Order
12549. You may contact the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
(5) The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into, it shall not<
knowingly eater into any louver tier covered transaction with a person who is proposed
for debarment under 48 CFR part g, subpart 9.4, debarred, suspended, declared
ineligible, or voluntarily excluded from participation in this covered transaction, unless
authorized by the department or agency with which this transaction originated.
(6) The prospective lower tier participant further agrees by submitting
this proposal that it will include this clause titled "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion-Lewey Tier Covered Transaction",
without modification, in all lower tier covered transactions and in all solicitations for
lower tier covered transactions. The prospective lower tier participant shall submit to
State all certification submitted pursuant to this paragraph.
( A participant in a covered transaction may rely upon a certification
of a prospective participant in a lower tier covered transaction that it is not proposed for
debarment under 48 CFR part g, subpart 9.4, debarred, suspended, ineligible, or
voluntarily excluded from covered transactions, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it determines
the eligibility of its principals. Each participant may, but is not required to check the List
of Parties Excluded from Federal Procurement and lion-procurement Programs.
(8) Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to reader in good faith the certification
required by this clause. The knowledge and information of a participant is not required
to exceed that which is normally possessed by a prudent person in the ordinary course
of business dealings.
Page 48 of 48
SRF11C 10
(g) Except for transactions authorized under paragraph ) of these
instructions, if a<participant'in a covered transaction knowingly enters into a lower tier'
covered transaction with a person who is proposed for debarment under 48 CFR part 9,
subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation
in this transaction, in addition to other remedies available to the Federal Government,
the department or agency with which this transaction originated may pursue available
remedies,_including suspension and/or debarment..
(b) Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion--Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission of this
proposal, that neither it nor its principals is presently debarred, suspended, proposer/
for debarment, declared ineligible, or voluntarily excluded from participation in this
transaction by any Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify to
any of the statements in this certification, such prospective participant shall attach an
explanation to this proposal.
ARTICLE F-6. UNIFORM RELOCATION AND REAL PROPERTY ACQUISITION ACT
Supplier will comply, or has already complied with the requirements of Titles II
and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970 (Public Law 91-545, 42 U.S.C. 4655), as emended, which provide for fair and
equitable treatment of persons displaced or whose property is acquired as a result of
Federal or federally assisted programs. These requirements apply to all interests in
real property acquired for protect purposes regardless of Federal participation in
purchase.