HomeMy WebLinkAboutRes1980-041
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 80-41
A RESOLUTION AUTHORIZING AND DIRECTING THE
EXECUTION BY THE MAYOR AND DELIVERY OF THE
1980 SECOND TRIPARTITE AGREEMENT WITH THE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINIS-
TRATION, U.S. DEPARTMENT OF COMMERCE, THE
ALASKA MUNICIPAL BOND BANK, AND THE CITY OF
SEWARD, ALASKA.
WHEREAS, at a special municipal election held ln the
City of Seward, Alaska, on October 2, 1979, pursuant to Resol-
ution No. 79-35, passed and approved August 13, 1979, the pro-
visions of the Charter and Code of Ordinances of the City of
Seward, and other proceedings of Council duly and regularly had,
the qualified electors of the City authorized the issuance of
general obligation bonds of the City in the total principal sum
of not to exceed $1,700,000 for the purpose of planning and
constructing an electric substation and making other improvements
to the electrical system of the City of Seward, Alaska, and
WHEREAS, the Board of Directors of the Alaska Municipal
Bond Bank has authorized it to enter into a Loan Agreement with
the City of Seward and to purchase the City's general obligation
bonds in the principal amount of $1,700,000 on the terms and
conditions fixed by the 1980 Second Tripartite Agreement author-
ized by the resolution, and
WHEREAS, it is deemed necessary and in the best interest
of the City that $1,700,000 of Seward general obligation bonds be
issued and sold to the Alaska Municipal Bond Bank
THAT:
NOW, THEREFORE, THE CITY OF SEWARD, ALASKA, RESOLVES
Section 1. The mayor is hereby authorized and directed
to execute and cause to be delivered, on behalf of the City of
Seward, Alaska, the 1980 Second Tripartite Agreement, substan-
tially in the form of the agreement attached hereto as Exhibit A,
which shall be consistent with the provisions of City of Seward
Resolution No. 79-35 and the approval given by the electors at
the general Municipal election on October 2, 1979.
Section 2. This resolution takes effect immediately
upon passage and approval.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, THIS 10TH DAY OF JULY, 1980.
CITY OF SEWARD, ALASKA
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By ~. .f(jp.-<.. / - /
. 'J Mayor
AYES:
NOES:
ABSENT:
CAMPBELL, HUGLI, SORIANO & SWARTZ
NONE APPROVED AS TO FORM:
CRIPPS, GILLESPIE & LEER
ATTEST:
HUGHES, THORSNESS, GANTZ,
POWELL & B,UNDIN,
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B~
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1 aBIT A TO SEWARD RESOLUT:
NO. 80-41
Loan No. 90-8-M11-02A5B-03
1980 SECQN~ TRIPARTITE AGREEMENT
THIS 1980 SECOND TRIPARTITE AGREE~ENT made as of
1980, is between the National Oceanic an~ Atmospheric Administration, U. S.
Department of Commerce. the Alaska Municipal Bond Bank, an~ the City of Seward.
Alaska.
The parties hereto agree as follows:
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Definitions
The definitions contained in Section A of the Standard Terms and
Conditions attached hereto shall be the definitions for this Agreement. In
addition. under this Agreement:
"Act" is the Coastal Zone Management Act of 1972. as amended.
(16 USC 1451 et gg,.);
"Agreement" means this 1980 Second Tripartite Agreement;
"Bank" is the Alaska Municipal Bond Bank;
"Bond Ordinance" shall mean the ordinance or resolution adopted hy
the City authorizing the issuance of the Municipal Bonds;
"Bond Resolution" means the resolution authorizing the sale of the
1980 Series B Coastal Energy Bonds adopted by the Bank on
1980;
"Borrower" as defined includes both the Bank and the City;
"CEIP Loan" means the loan by the Government to the Bank pursuant to
the Agreement.
"City" means the City of Seward, Alaska;
"Government" means the National Oceanic and Atmospheric Admini-
stration. U. S. Department of Commerce;
"Loan" means the loan by the Bank to the City pursuant to this
Agreement;
"Municipal Bonds" means the bonds issued by the City to the Bank
pursuant to this Agreement;
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"Municipal Bonds Interest Payments" shall mean the interest due
on the Municipal Bonds;
"Municipal Bonds Principal Payments" shall mean the principal due on
the Municipal Bonds;
"1980 Series R Coastal Energy Bonds" means the bonds issued by the
Bank to the Government; and
"Project" means electrical transmission and distribution facilities
in Seward. Alaska. as defined in the Bond Ordinance.
II
Purpose
The parties enter into this 1980 Second Tripartite Agreement pursuant
to Offer of Loan #90-8-M01~02A5~. as amended. to the Bank. for the purpose of
drawing down funds under that offer to construct the Project. The parties have
determined that this 1980 Second Tripartite Agreement is in full compliance with
the terms of said Offer of Loan #90-8-~01-02A5B. The Project has been determined
to qualify as a public facility eligible for assistance by the Government under
the Coastal Energy Impact Program pursuant to the Act. The Bank is the authorized
state agency in Alaska. established for the purpose of financing public facilities
pursuant to Chapter 58. Title 44. Alaska Statutes, effective May 21. 1975. as
amended. The Government shall lend to the Bank a sum sufficient to enable the
Bank to make a Loan to the City for construction of the Project. The Bank shall
issue the 1980 Series B Coastal Energy Bonds in the form of a single fully'
registered Bond to the Government as evidence of the Loan. The City shall issue
its Municipal Bonds to the Bank in the amount of the Loan by the Bank to the City.
The City shall pay interest and principal on the Municipal Bonds in the amounts
and at the times so as to enable the Bank to pay the interest and principal on
the 1980 Series B Coastal Energy Bonds as the same shall become due.
III
Loan to City
1. The Bank hereby makes the Loan and the City accepts the Loan in
the amount of $1.700.000. As evidence of the Loan made to the City and such money
borrowed from the Bank by the City, the City hereby sells to the Bank fully
registered bonds in the aggregate principal amount of $1.700.000. The Loan
proceeds shall be disbursed to the City at the same time the CEIP Loan proceeds
are disbursed to the Bank. If less than the full amount of the Loan is disbursed
the difference between the face amount of the Municipal Ronds and the amount
disbursed shall be deducted from the face amount and the last outstanding maturity.
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.tuchment 1
PROJECT NO~ 90-8-1.JOl-02ASB-03
BID CONDITIONS
Construction Contractors Affir:a~ive Action ~equire~ents
Tbe tolloving notice sh~l be incluced in. and shell be a par~ o~.
all solicitations for 'offers and bids on ~l fec.eral and fec.erally-
assisted construction contracts or subcontracts in excess of $lO.CCC
to be per!o~ed in the State of Alaska
NOTIC::: O? F.EQuIF~,IT FOP. AITIR!.:'~.'!'rv::: ACTION TO El;SiJ?.E EQ.t:.hl. D~LC':'-
}E!r!' OP?O?:m>ITY (:E:a:CUTIVL OFllL? 11246)
1. The O!fero::'s or Bidder's attentior. is called to the "Ec;.u~l
Opportu!li ty Clause" set forth in p::-o\'i sion V8 of the Ste::derd
Ter:s er:c. Conditions and the "Sta!1de.rd Federal Ec;.ue1 mplo;i:::e::::
Opportun:.ty Construction Contract Specifications" set fort:: be2.o\.'.
2. Tbe goals e..r.c! t~etables for ninority end fe=.ale pa~ic::Fe:':.io::,
expressed in percentage te~s for the Contractor's ag~e~~te vork-
force in each trade on ell construction vork in the covered ~ea,
are es follovs:
FEYAL! PAP.TICIPA7!ON:
Trace . Timetable Goe.ls (-oere e:-:t )
All FrOI:l April 1, 1978 until Hs..:-ch 31, 1979 3.1
All . FrOlll April 1. 1979 until Harch 31. 1980 5.0
All FrOlll April 1, 1980 until Hexch 31, 1981 6.9
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)C]'l:)!'.!TY PAP.71 CI?A7!01::
'!":'a~e. 'I'i1::e~e:~ 1 e Go~s (-..-~..-. )
y-~ ~_.....
As:.estos workers Until further notice 26.~ to 2:.0
Carpenters " " " 25.7 to 28.0
Electricians " ,. " 25.7 to 28.0
Ironworkers " " II 25.7 to 28.0
Ope ra tin; en; i neers " " " 26. , 28.0
to
Painters " " " 25. B 2E.o
to
Pile drivers " " II 25. , 20.C
to
Plumbers t steamfi tters ,. " " 25.4 20.0
to
Roofers ,. ,. " 27.6 to 28.0
Sheetmetal workers " II " 25.6 to 20.0
Teamsters " II " 25.6 to 28.0
All other II " " 26. , to 28.1
'I'tese go~s a:e arr11ca~le ~o ~1 ~be Co~t~~to~'s co:st;u:~i=: v:~~
(vbetbe~ C~ net it is rede~al o~ !ede~allj' assiste~) ~~~c~e~ i:
~be cove.e~ a:e~.
The Contra:to::-'s e=;>lia:lce vi~b ~be be:utive O:-de::- c~ 'tbe re;'J-
lAtions in Ll C/? F~ 6o-L sha2l be based OD i~6 i:rle=e~t~tio~
of ~he Equa: OJl:portu::U~Y Clause, specific a~i~tive actio: o:::'i-
gations required by ~e specifications set rorth in Ll c:~ 6G-L.3(e).
and its efforts ~o ~eet ~he goals establisbed ro~ ~be !eo~Ap~icLl
&rea where the contr&ct resu1t~ tree this solicitatioo is to be
perfC>n'le~. The hours of rlnc,ri ty and re=.le e!:rlo~~eot 8.:)d 1.::-&:0-
iDs X'.lrt be aubsta:lUally -=.Ho:r:: thro~ut the ler,stb or
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The Municipal Bonds shall bear interest from the date of their issuance the
rate of seven per centum (7%) per annum on the principal amount outstan~ing.
The interest cost rate for purposes of this Agreement will be computed without
regard to Sections 4 and 5 hereof which require that the City make funds
available to the Bank for the payment of principal and interest at least seven
business days prior to each respective principal and interest payment date.
The rate or rates of interest borne by the Municipal Bonds shall be the same
rate or rates of interest borne by the 1980 Series B Coastal Energy Bonds for
corresponding maturities.
2. The Municipal Bonds shall be secured solely by a pledge of the
full faith and credit of the City of Seward.
3. The City has duly adopted or will adopt all necessary ordinances
and resolutions and has taken or will take all proceedings required by law to
enable it to enter into this Agreement and issue its binding obligations to
the Bank. The Bond Ordinance shall be-in substantially the same form with
substantially the same covenants and provisions as the Ordinance authorizing
the issuance of the City of Seward General Obligation BondR-l, 1976 with such
variations, additions or omissions as may be permitted by the Bank.
4. The Bond Ordinance shall provide that the Municipal Bonrls
Interest Payments shall be not less than the interest the Bank is required
to pay on the 1980 Series B Coastal Energy Bonds and shall be scheduled by the
City in such manner and at such times (notwithstanding the dates of payment
as stated in the Municipal Bonds) as to provi1e funds sufficient to pay
interest as the same becomes due on the 1980 Series B Coastal Energy Bonds
and the City shall make such funds available to the Bank at least seven business
days prior to each interest payment date or shall pay said funds directly to the
Government by the due date if so directed by the Bank.
5. The Bond Ordinance shall provide that the Municipal Bonds
Principal Payments shall not be less than the principal the Bank is required
to pay on the 1980 Series B Coastal Energy Bonds and shall be scheduled by the
City in su.ch manner and at such times (notwithstanding the dates of payment
as state1 in the Municipal Bonds) as to provide funds sufficient to pay the
principal of the Loan as the same matures (based upon the maturity schedule
provided by and for the City and appended hereto as Exhibit A) and the City
shall make such funds available to the Bank at least seven business days prior
to each principal payment date or shall pay said funds directly to the Govern-
ment by the due date if so directed by the Bank.
6. The City is obligated to pay Fees and Charges to the Bank. Such
Fees and Charges actually collected from the City shall be in an amount sufficient,
together with other monies availahle therefor, including any specific grants
made by the United States of America or any agency or instrumentality thereof
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or by the State or any agency or instrumentality thereof:
(a) to pay. as the same become due. the A~ministrative
Expenses (as defined in the Bond Resolution) of the Bank, and
(b) to pay. as the same hecome due. the fees and expenses
of the paying agents. if any, for the 1980 Series B Coastal
Energy Sonds.
7. The City is obligated to make the Municipal qonds Principal
Payments scheduled by the Bank on an annual basis and is obligated to make
the r1unicipal Bonds Interest Payments scheduled by the Rank and to pay the
Fees and Charges imposed by the Bank on a semi-annual basis. The obligation
to make the payments is a general obligation of the City of Se\~ard.
8. The Bank shall not sell and the City shall not redeem prior to
maturity any of the Municipal Bonds with respect to which the Loan is made
in an amount greater than the principal amount of the 1980 Series B Coastal
Energy Bonds which are then outstanding and in the event of any such sale or
redemption. the same shall be in an amount not less than the aggregate of (i)
the principal amount of the Loan (or portion thereof) so to be redeemed. (ii)
the interest to accrue on the Loan (or portion thereof) so to be redeemed to
the redemption date thereof not previously paid, and (iii) the costs and
expenses of the Bank in effecting the redemption of the 1980 Series B Coastal
Energy Bonds (or portion thereof) so to be redeemed; provided, however. that.
in the event the 1980 Series B Coastal Energy ~onds have been refunded and
the refunding bonds of the Rank issued for the purpose of refunding the 1980
Series B Coastal Energy Bonds were issued in a principal amount in excess
of or less than the Loan remaining unpaid at the date of issuance of such
refunding bonds, the amount which the City shall be obligated to payor the
Bank shall receive under (i) above shall be the principal amount of such
refunding honds outstanding.
In the event the 1980 Series B Coastal Energy Bonds have been
refunded and the interest t~e'8ank is required to pay on the refunding bonds
is less than the interest the Rank was required to pay on the 1980 Series B
Coastal Energy Bonds. the amount which the City shall be obligated to payor
the Bank shall receive under item (ii) above shall be the amount of interest
to accrue on such refunding bonds outstanding.
The City shall give the ~ank at least fifty (50) days notice of
intention to redeem its Municipal Bonds.
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9. Simultaneously with the delivery of the City's Municipal Bond
or Bonds to the Bank, the City shall furnish to the Bank evidence satisfactory
to the Bank which shall set forth among other things, that said Bond or Bonds
will constitute valid obligations of the City secured by the full faith and
credit of the City of Seward.
10. The City shall be obligated to inform in writing the Bank, and
if the Bank so instructs, the Government, at least thirty (30) days prior to
each interest payment date on the Municipal Bonds of the name of the official
to whom invoices for the payment of interest and principal should be addressed.
11. Notwithstanding paragraph VI 4 hereof, prior to disbursement
of the amount of the Loan, or any portion thereof, and the delivery of the
Municipal Bonds to the Bank or its designee, the Bank shall have the right to
cancel all or any part of its obligations hereunder if:
(a) Any representation, warranty or other statement made by
the City to the Bank in connection with its application to the Bank for the
Loan shall be incorrect or incomplete in any material respect.
(b) The City has violated commitments ma~e by it in its applica-
tion and supporting documents or has violated any of the terms of this
Agreement.
(c) The financial position of the City has, in the oplnlon of the
Bank, suffered a materially adverse change between the date of this Agreement
and the scheduled time of delivery of the Municipal Bonds to the Bank.
12. The obligations of the Bank under this Agreement are contingent
upon delivery of its 1980 Series B Coastal Energy Bonds and receipt of the first
draw of proceeds thereof.
IV
Loan to the Bank
1. The Government hereby agrees to lend and the Bank accepts a CEIP
Loan in the amount of $1,700,000. The Bank shall issue its 1980 Series B
Coastal Energy Bonds as fully registered bonds in the amount of the CEIP Loan.
The CEIP Loan proceeds shall be disbursed to the Bank as provided in the
Standard Terms and Conditions. If less than the full amount of the CEIP Loan
is disbursed the difference between the face amount of the 1980 Series B
Coastal Energy Bonds and the amount disbursed shall be deducted from the face
amount and the last outstanding maturity. The 1980 Series B Coastal Energy
Bonds shall bear interest at the rate of seven per centum (7%) per annum on
the principal amount outstanding, be payable at the times, and mature in the
amounts and years as stated on Exhibit B appended hereto.
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2. The 1980 Series B Coastal Energy Bonds are payable, to the
extent provided in the Bond Resolution, solely from the Municipal Bonds
Interest Payments and the Municipal Bonds Principal Payments. The 1980 Series B
Coastal Energy Bonds are not a general obligation of the Bank nor a pledge of
any funds or assets other than that stated herein or the Bond Resolution.
3. The Bank hereby assigns to the Government any and all rights of
action it may have against the City for the collection of payment on the
Municipal Bonds and the Government accepts the assignment.
v
Repayment Assistance
The Borrower shall be eligible for repayment assistance under
Subpart F of the Coastal Energy Impact Program regulations (15 CFR 931.60 -
. 931.69) as provided in Paragraph T of the Standard Terms and Conditions. The
Borrower shall make timely application to the Government pursuant to the
regulations in sufficient time so that default may be avoided on the 1980
Series B Coastal Energy Bonds.
VI
General Provisions
1. The provisions of the Special Conditions and Standard Terms and
Conditions and Project Budget of the Government are attached hereto as Exhibits C,
o and E, respectively, and made a part of this Agreement. The Bank and the City
are bound jointly and severally to such tenns and conditions. It is understood
for the purpose of the Standard Terms and Conditions that the City will construct
the Project and will be responsible to the Bank and the Government for compliance.
2. If any provision of this Agreement shall for any reason be held
to be invalid or unenforceable, the invalidity or unenforceability of such
provision shall not affect any of the remaining provisions of this Agreement
and this Agreement shall be construed and enforced as if such invalid or
enforceable provision had not been contained herein.
3. This Agreement may be executed in one or more counterparts, any of
which shall be regarded for all purposes as an original and all of which constitute
but one and the same instrument. The Bank and City agree that they will execute
any and all documents or other instruments, and take such other actions as are
necessary to give effect to the terms of this Agreement.
4. No waiver by either party of a~y term or condition of the Agreement
shall be deemed or construed as a waiver of any other terms or conditions, nor
shall a waiver of any breach be deemed to constitute a waiver of any subsequent
breach, whether of the same or of a different section, subsection, paragraph,
clause, phrase, or other provision of this Agreement.
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5. This Agreement merges and supersedes all prior negotiations,
representations, and agreements between the parties hereto relating to the
subject matter hereof and constitutes the entire agreement between the
parties hereto in respect thereof except for the Offer of Loan #90-8-M01-02A5B,
as amended, between the Government and the Bank which remains in full force
and effect.
6. This Agreement may be amended by the mutual consent of the
Government, the Bank and the City.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
Assistant Administrator for Coastal
Zone Hanagement
National Oceanic and Atmospheric
Admi ni strat ion
U. S. Department of Commerce
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Staff
Alaska Municipal Bond Bank
By:
Chairman
City of Seward
By:
Mayor
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EXHIBIT A
MUNICIPAL BONDS ISSUED TO THE BANK
Maturity Date Amount
January 1, 1982 $40,000
1983 $45,000
1984 $45,000
1985 $50,000
1986 $55,000
1987 $60,000
1988 $60,000
1989 $65,000
1990 $70,000
1991 $75,000
1992 $80,000
1993 $85,000
1994 $95,000
1995 $100,000
1996 $105,000
1997 $115,000
1998 $120,000
1999 $135,000
2000 $145,000
2001 $155,000
Interest is payable on the 1st day of January and July in each
year beginning January 1,1981 on the principal amount out-
standi ng.
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EXHIBIT B
19RO SERIES B COASTAL ENERGY BONDS
ISSUED TO THE GOVERNMENT
t.1aturity Date Amount
January 1, 1982 $40,000
1 qq3 $45,000
1984 $45,000
1985 $50,000
1986 $55,000
1987 $60,000
1988 $60,000
1989 $65,000
1990 $70,000
1991 $75,000
1992 $80,000
1993 $85,000
1994 $95,000
1995 $100,000
1996 $105,000
1997 $115,000
1998 $120,000
1999 $135,000
2000 $145,000
2001 $155,000
. Interest is payable on the 1st day of January and July in each
year beginning January ~, 1981 on the principal amount out-
standing.
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EXHIBIT C
SPECIAL TERMS AND CONDITIONS
Borrowers:
Alaska Municipal Bond Bank and the City of Seward, Alaska
1. The City shall provide for the establishment of a bank account
satisfactory to the Bank and the Government into which account
shall be deposited taxes or other revenue, as collected, in
amounts sufficient to pay the principal and interest on the
Municipal Bonds.
2. The Bank shall annually review and the City shall annually
provide an annual audit of its financial statements.
3. The City shall levy and collect sufficient ad valorem property
taxes that, together with other available revenue, will pay the
principal and interest on the Municipal Bonds when due so long
as the Bonds are outstanding.
4. The Borrower shall comply with the Affirmative Action requirements
of the Bid Conditions attached hereto as Attachment 1. The Bid
Conditions shall be included in all construction contracts or
sub-contracts in excess of $10,000 awarded under this Loan.
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STJJmA.t<.!l FEDERAL EQUAL ~LO'fl.S-l'7 OPPOF,7'LJ1i!':'';:'
CONSTRUCTrO~ CONTRACT SPECIFICATIONS (~CUT~ O?~~ 112LE)
1. As' usec in these specifications:
eo. "Coverec are!!." Illee.r.s the geographical erea describe:' ir. tr.e
solicitation fro= vhich this CODtra~~ res~te~;
b. ffDirecto:-" t:e!!.!:S Direct.:::-, Offi ce of Federal Cor:trac":. Co=:;:li~ce
Pro&ra=s, Ur.ited States De?~me~t of Labor, or e.r.y persor: to v~==
the Director delega":.es authority;
c. "D:lployer ide::tification nm::ber" tlee.."lS the Federe.:!. Sociel
Security nm::ber used on the ~?loyer's ~terly Feeer~ Tax Ret~!:,
U.S. Treasu-~ ~pa~tle!:t Fc~ 9hl.
d. "Y.inority" incluc.es:
(1) Bleck (all perso~s having origins in ~"lY o~ t~e Black A~:c~
raciel sroups not of Eis?e..~:c orlg:r.);
(ii) Eisp~ic (all persons of Mexice=, Puerto Ric~, Cuba~, Cer:tra:
or South Acerice.r. or other Spe=ish Culture or origin, reger~ess o~
race) :
(iii) Asian and Pacific Islander (all persons having origins ~r.
any of the original peoples of the Fa: East. Southeast Asia, the
Indian Subcontine~t, or the Pacific Islands); e.."lQ
(iv) Ar1erican Indian or Ale.sk!!.11 Native (1U.1 persons he.vir.e; origins
in any of the original peoples of North A=erica a=c maintaining
identifiable tribal attiliations througL m~~e~shi? ~a pa~tici?a~ion
or ~omounity identification).
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the contract, ar.d in each trade', 8..."::e the cont:-acto::- s~a:!.l ::e};e a
good faith effort to etploy ~iDo:-ities ace vo~eD eve~ly o~ eact
of i~s projects. Tbe t:-ansfe:- of ~inc::-ity or f~E2e ~~:!.oyee~
0::- trai~ees frc~ Contractor to Contractor or fro~ ?ro~ec~ to p::-:-
ject fc::- the sole purpose of ~eeting the Cont::-actcr's gca:!.s s~a:!.~
be a vic~e.tior. of the cont::-act. t~e Executive ~de::- an~ t~e re~~-
lations in 41 CFR Part 60-4. Cocpli~ce vith the go~s vi:!.:!. be
~easured agai~st the total York hours pe::-force=.
3. The Cor.tractor shall provide vritte~~Dotification to the
Director of the Office of Federal Contract Cocpliance P::-o~~s
~ithi~ 10 vorking days of avard of any cocstructior. subccnt::-act
in excess of $10,000 at ar~ tier for co~str~ctior. vork ~"::=e:- tte
co~t::-act resulting fr= this solicitation. Tbe Doti~ication sh..l~
list the n~e, ad~ess a::-.d telephone Ducbe::- of the su~ccnt::-e.:t:::-;
e=ploye::- ide~tification Ducbe::-; est~ated collar e=o~t of the
subcontract; est~ated starting ~d co=pletio~ dates of the sub-
contract; end the geog::-apbica:!. ~ea in vhich the contract is to
be performed.
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4. As used in this Notice, end in the contract resulting fro=
this solicitation, the "covered area" is the Stcte of Alaska
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2. ~enever the Contractor, or any Subcontractor ~t ~y tier,
subcontracts a portion of tbe vork involving ar.y constructio~
trade, it sh~l ptysically include i~ each subcontract in ex:e~~
of $10,000 the provisions of these specificatio~s ~= the Not:c~
vhich c:~tains the applicable goals for zinority and fe=a1e ~arti-
cipation ~C .bier. is set forth in the solicitations fro= v~ict
this contract resultec.
3. If the Contractor is participating (pursua~t to Ll CF? 60-L.S)
in a Ho~eto~T- Plan approved by the U.S. DepErt~ent of Laber :~
the covered area either in~ividua1ly or throug~ ~~ association,
its affir=ative action obligations on all vork in tbe Plan area
(including goals ar.d timetables) shell be in accordar.:e vitt that
Plan fer those trades vticb bave unions pa~icipEting in the Plan.
Contracters ~~st be able to d~or.strate their participation i~ a~=
co~~li~~ce vith the provisions of any such F.o=eto~~ Flan. Each
Contractor or Subcontractor p~icipating in ~ approved Plan is
individuelly required to co~ply ~~th its obligations under the EE2
clause, and to make a good faith effort to achieve each goal under
the Plan in each trade in vhich it bas ~ployees. Tbe ove"all gooc
faith performance by other Contractors or Subcontractors tovacc a
goal in ~ approvec Plan doe.s Dot excuse IUlY covered Cont:-ector's
or Subcontractor's failure to take good faith efforts to achieve
the Plan goals aDd tketables.
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~. The Contr~ctor shall imple=e,-t the specific affir.cative actic~
standarcs providec in paragraphs 7a tcrough ~ of the:e speci!icatic~s.
The 'goals set forth in the solicitation fro~ v=ich this ccntract
resulte~ ere eX?resse~ as percentage: of the total ho~s of e=;loy-
~e~t ~~d t~aini~g of minority ~~C f~a1e utili2atio~ the COtt~actc~
stcU:d reasor.ably be able to achieve in each constructior. trade iro
vhich it has ~ployees in the covered area. The Contractor is
expected to ~e substanti~ly ur-ifor.= progress tovard its go~:
in each craft during the period specifie~.
5. Neither the provisions of any collective bargaining ~re~er.t,
nor the failure by a union ~~th Vhoc the Contractor has a collective
bergainir.g agree=ent, to refer either minorities Or vo=en sh~l
excuse the Contractor's obligations under these specifications,
Executive Order 11246, or the regu1atio~s prooulgated F~sUe:.:
thereto.
6.
In order for the Donvorking training hours of apprentices
.-"
~.-
trainees to be co~~ted in meeting the goals; such apprer.tices ~d
trainees must be ~ployed by the Contractor during the training
period, and the Contractor must have ~de ~ coc=i~ent to e~ploy
the apprentices and trainees at the c~letion of their training,
aubject to the availability of ~?lo~ent opportuzities. Trainees
~t be trained pursuent to traini~g pro~~ approvec by the U.S.
Dt:part.ment of Labor.
,/
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7. The Con~ractor sh~2 t~\e specific affir~tive ec~ion5 to ens~e
equal ~ploJ~er.t opportunity. The eva2uation of the Contractor's
co~pli~ce vith these specificatiocs stall be based u~or. its ef-
fort to actieve max~u= results fro~ its ections. The Contractor
shell docunent these efforts fully, ~~C shall i~;le~ent affi~~tive
action ste?s at least es extensive es the to21oving:
a. Ensure and maintain a vorking enviror~ent free of h~ass~e~t,
intitidation, and coercion at all sites, enc in all facilities at
vhich the Contractor's e=ployees are assigned to .~rk. ~e Con-
tractor, vhere possible, vill assigc tvo cr ~cre vo~en to e~ch
construction project. The Contractor s~all specifiCally ens~e
that all for~en, superintendents, and other on-site s~?eC\~so~,
personnel ~e aVare of ~~d c~ry out the Contractor's obligation
to ~aintain such a vorking environ-ent, vith specific attention to
~inority or f~e indivicuals vorking at such sites or in sUc~
tacilities.
b. Establish and ~aintain a cu-~ent list of ~nority e:.d fe=~e
recruitment so~ces. provide ~"itte~ notification tc ~i~o"it: ~d
f~le recruit~ent So~ces and to co~~ity organizations vbe~ the
Contractor or its unions have ~lc~ent opport~ities available,
and maintain a reco"d of the organi%~tionst responses.
..
c. ~ntain a current file of the na=es, aderesses and telepho~e
nucbers ot each minority and fena1e off-the-street a?plic~t anc
mirority or t...-", e refe:-ra.l from a union, a recruitment source or
.._--....
".r"'_ __.__--...-____ .~_ _ ____....-_... ___
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eO~UDity organization ~d of vhat 'action vas teken vith respect to
eacb such in~ividual. If such individual vas sent to the ~ior.
hiri~g hall for re!e~ral anc vas not rere~rec beck to the Co~tractc~
ty tr.e Q~ion or. if ~e~e~rec. not etployec. by the Contractcr, t~:s
s~all be docuze"ted in the file vith the reason there~c~e, along
vith vr.~tever e==itional actions the Contractor ~r have taken.
d. Frovide i=ediate \/Titten notification to the Direct;:)r vhe::
the union or UDio~s vith vhich the Contractor has a collective
be:gaini~ agree~ent has not referred to the Contractor a ~incrity
person or vct~~ sent by the Contractor, or vhen the Contractor ~es
other infor-~tion that the union referral process has it?ede~ the
Contractor's e~forts to ~eet its obligations.
e. Develop on-the-job training opport~ities ~~=Ior pe:ticipate
in training prcgre=s ~or the 8:ea vhich ex?ressly include ~r.orities
~d vanen, including upgracing progr~s ~~d a~prenticeshi? ~~~
trainee progre=s relev~~t to the Contractor's e=plc)Anent needs,
especially those p~ogr~s !unded or approved by the Depar~=en~ o~
Labor. The Co~tractor she21 provide notice o! tzese p~cgratS to t~e
sources co=plied under ~ above.
.
f. Disseoinete the Cont~actor's EEO policy by providi~g notice o~
the policy to unions .!.::lC! training progr= and requesting their
cooperation in assisting the Contractor in ~eeting its rEO obliga-
tions; by inclUding it in any policy ~~ and collective bargein-
1ng asre-ez::ent; by :publicizing it in the CCDpany ne-...spaper. ~"''''.ual
'\ .. _""?---.~~
..~... .....~
_. .':'r..........
:--.-~. .. -.. t-:-
- :......~~.-.- _.~.~. "-""'::' TO" :~ .,_~..::;__~~..
"1......-:JI;:..,.~ ~.:-:'-:-.~....,........... ....~~'-"f'~--::-€S.i'~
~--
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report, etc.; by speci~ic reviev of the policy vith all :ar.age=e=~
perBoD.Ile1 !l.l'lC vith e.11 tninority and fe:::s.le ez::ployees at lee.!;~ once
a ye.a.T; ane. bJ' pcsti?S the coz:;pany EO peliey on bt:..llet::.n boe.:-ds
accessible to all e:::ployees at ee.c~ loce.~ion vhere constr~cticn
\.
.ork is perfor=ed.
g. Reviev, at least ar~~ue.lly, the COI:p~~Y's EEO policy ~~d a~~ir--a-
tive action obligations under these specifications v:th ~l e:::p1oyees
having ~~y responsibility tor hiring, assig~e!1t, 1e.yo~f. te~ina-
tion or other e:::ploJ~ent decisions including speci~ic reviev of
these itez::s vith onsi'te super;iso~ perso~el s~ch as Superintenden~s,
General Fore:::en, etc., prior to the initiation of const~cticn vark
at ~~ job site. A vritten record shell be ~de ~d ~in~a:r.e~
identi!)'i~ the time anc place of these z::eetings, persons attend-
ing~ subject ma~ter discussec. a=c disposition of t~e s~~jec~ ~a~~e~.
h. Disse=inete the Contractor's EO policy externally 'bJ" incluc.i:::g
it in any advertising in the nevs z::edia, specifically including
~Dority and f~le nevs media, and pro.~ding vritten noti:~=eticr.
to and discussing the Contractor's EEO policy vith other Contractcrs
and Subcontractors vith vhoo the Contractor does or antici?ates
doing business.
i. Direct its recruitoent efforts, both oral and vritte~, tc
:d~oritYf f~e and co~unity organi~etions, to schools ~~th
:dnor1ty and fenale sturlents and to ~Dority and fe.::.cle rec::l.:..itoe::t
~~ training orge.ni~atioDs Berving the Contractor's recruitoent
-....
- ..- ..
..--.- J- :-"'"___ . '-'
... _a.,_ .~..- ...--:r.:2.4f-. . ._ ~ ~
.~ . .. ~~~. -:...- ~ .,-J~'!;"".~:...'l'
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area and ~plo~er.t needs. Not 1~te" theD one ~onth ?rior to the
date for the accept~~ce of applications ~or appreDtices~ip or ot~er
t~ainiLg by BIO' recruit~ent so~ce, the Contractcr sh~l sene -~itter.
~oti~ication to org~i4ations such as the above, describing the
openi: 5, screening procecu:es, ar.c tests to be used in the selection
process.
j. Encourage present minority and f~ale ~ployees to recr~t ot~er
minority persons ~~ Vo~en and, vhere reasonable, provide a~ter
school, S"~er and vecetion ~ploJ~ent to minority ~~~ fe~ale
youth both on the site ~~d in other a:eas of a Contractor's vork~crce.
k. Validate all tests and other selection re~uire=ents v~ere there
is an obligation to do so unde" 41 CFR Pa~ 60-3.
1. Concuct, at least ~~~uel1y, an inventOr)' and eval~tioL at least
of all minority and f~ale personnel for pro~otional oFPort~ities
and encou:age these e=p1oyees to seek or to prepare for, throug~
appro?riate training, etc., such opport~ities.
~. Ensure that seniority practices, job classifications, vork ass:gn-
~ents and other personnel practices, do DOt have a discr'r'Datcry
effect by continually oonitoring all personnel ~~C ~ploJ~e~t relate~
activities to ensure that the EEO policy and the Contractor's obli-
gatipns under these specifications are bei~ c~r1ed out.
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n. Ensure that all facilities and cocpany activities a~e nonseb"e-
gated except that separate or single-use" toilet and necesse"y
changinf facilities stall be provided to assure privacy betvee~ tte
sexes.
o. Doc~e~t and maintain a record of all solicitations of offers
for subcontracts trow minority and t~ale construction contractors
and suppliers, including circulation of solicitations to cinority
and f~le contractor associations and other business associations.
p. Conduct a re\~ev, at least ~ua11y, of all supervisors' ad-
herence to and perfor-~nce under the Contractor's EEO policies ~~d
affi~tive action obligations.
B. Contractors are encouraged to participate in vol~~ta~' associa-
tions vtich assist in fulfilling one or Dore of their affi~ative
action obligatic~s (7a throug~ p). The effo~s o~ a contractor
association, joint contractor-ULion, ccntractor-co~ity, or otcer
simila= group of vhich the contractor is a m~ber and pa~icipant,
may be asse~ed as fulfilling anyone or more of its obligations
under 7a through p of these Specifications provided that the con-
tractor actively participates in the group, makes every effort to
assure that the group has a positive impact on the ~ploJ~ent of
minorities and yemen in the incustry, ensures thet the concre~e
beDer1ts or the program are reflected iD the Cont~actor's ~inority
aDd feca1e vorktorce ~erticipetion, ~es a good faith e!!ort to
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~eet its individual goals end ticeta~les. and car. provide access t~
docuoentation vcich demonstrates the effectiveness of actio~s teLe~
on b~half of the Co~tractor. The obligation to coeply. h~veve~, is
the Co~tracter's and failure of such a g~oup to fulfill e~ obliga~ic~
shall not be a defense for the Co~tractorfs nonco~plia~ce.
9. A single goal fer minorities and a separate single g0~ fe~
vonen have pee~ established. The Contractor, hovever. is require~
to pro,ide eq~al e~plo~eDt opportunity and to take affir.=ative
action for all ttinority groups, both me1e ~~d f~ale. anc all vc=e~,
both ttinority ar.d non-minority. Conseque~tly, the Contractc~ oa~
be in violation of the Executive Order if a particula~ group is
~ployec i~ a substa~tially disparate ~er (for exa=r1e. eve~
tho~~ the Cor-tractor has achieved its goals for vonen geDe~e11y,
the Ccntractc~ tey be in violation of the Executive Order if a
specific minority group of vemen is unde~ili~ed).
10. The Contractor shall not use the goals and ticetables or affi~a-
tive action st~dards to discricinate against ~y person because of
race, color. religion, sex. or national origin.
11. The Contractor shall not enter into ~y Subcontract v1th ~y
person or firm debarred tro= Gove~ent contracts pursu~t to
Executive Order 11246.
.
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12. Tbe Contractor stall carry out such s~ctions and pena!ties fc~
violation of these specifications ~~d o~ the Eq~~ Oppc~tur_ity Cla~se,
inc1udin[ suspension,. ter=ination and cancellation of existi~ su~-
cont,acts as ~ay be iopcsed or ordered purs~t to Executive C,de~
11246, as anended, ~~d its ~ple=enting regulations, by t~e Office
of Fede,al Contract Co=plience Pr05T~s. Any Cor.t,actor .ho fails
to carry out sucb s~~ctions ~~d pen~ties shall be in violatien e~
these specifications ~~d Executive Order 1l2l:, as ~ended.
13. The Contractor, in fulfilling its obligations \L~der t~ese speci-
fications, shall inplecent specific affi~ative action steps, at
least es extensive as these Btend~ds prescribed in parafra?~ 7 of
these specifications, so as to acbieve ~i~~ results fro= its
efforts to e~s~e e~~al ~ployce~t oppcrt~ity. If tee Ce=tractcr
fails to coeply .ith the requirenents of tbe Exec~tive Order, the
impleoenting regulations, or these specifications, the Director
shall proceed in accordar.ce vitb 41 CFR 60-4.8.
14. Tbe Contractor shall designate a responsible official to ~Dito,
all employment rel~ted activity to ensure tbat the conr~~Y IZO policy
is being carried out, to subnit reports relating to the pr~visioDs
hereof as may be require~ by tbe Governoent and to keep records.
RecordD sball at least include tor eao~ e=ployee the naoe, ad~ess,
telephone D~bers, construction trade, union a!filiation if acY,
e=ployee identification number vben assi~ed, Bocial security
number. race, sex. status (e.g.. mech~"ic, apprentice, trainee,
.,
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belper, or laborer), dates of char-ges in status, ho~s vo~ke= pe~
veek in the in1icatec trace, rate of pay, er.= locations at .hic~
the vork vas perfo~ed. Records shell be ~ai~taine= in ~~ eas::y
underst~~dable ~~d retrievable fo",=; hovever, to the de~ee that
existing records satisfy this requir~ent, contractors shell not
be required to ~ainta:n sepa:ate ~ecords.
15. Not~iDg herein provided sball be construed as a lititation upon
the application of other lays vhich establish different st~da~ds
of ccnpliance or upon the application of requir~ents fo~ the hir-
ins of local or other area reside~ts (e.g., those ur.der the ?u~lic
,.
Works ~ploy=ent Act of 1977 and the Co~~ity Develo~ent Block
Gr~'1t Progra..=).
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...
EXHIBlT D
January 27. 1978
U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION
OFFICE OF COASTAL ZONE MANAGEMENT
Coastal Energy Impact Program
Construction Loan Agreement.
Standard Terms and Conditions
Project No.
90-8-MOI-02ASB-03
PAGE
A. Definitions . . . . . . . . .
B. Use of Loan Funds . . .
C. Procurement Standards
D. Final Plans and Specifications
E. Constrtl.<::tlon Contract Awards . . . .
1
2
.' .
2
2
......
2
F. Bonding and Insurance
. . . . . . . .
3
G.
Prior Written Approval of Changes . .
.....
3
H. Disbursement of Loan Funds
3
I. Allowable Cost
3
J. Borrower Financial Management System
4
K. Suspension or Termination of the Loan .
4
L. Property Management Standards .
5
M. Officials Not to Benefit
5
N. Access to Records and Right to Audit
5
o. Maintenance of Records
5
P. Signs at Project Site
6
Q. Disputes ......
. . . . . . .
6
R. General Requirements During Construction . . . . .
6
S. Loan Requirements . . . . . . . . . .
7
T.
Repayment Assistance
. . . . . . . . . . . . . . .
10
o. Statutory Requirements for Construction Contracts
and Subcontracts . . . . . . . . . . .
10
v.
Miscellaneous . . .
. . . . . . . . . . ... . . . . .
15
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u.s. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION
OFFICE OF COASTAL ZONE MANAGEMENT
Coastal Energy Impact Program
Construction Loan Agreement
Standard Terms and Conditions
A. Definitions
Except to the extent modified or supplemented by this Loan
Agreement. any term not defined below but defined in the Act
or Regulations (as defined below) shall have the same meaning
when used herein.
1. "Agreement" means.this Loan Agreement. and any amendments
or SUPRlements thereto.
2. "Act" means the Coastal Zone Management Act of 1972
(P.L. 92-583) as amended by the Coastal Zone Manag~ent
Amendments of 1974 (P.L. 93-612) and 1978 (P.L. 94-370).
3. "Regulations" means those regulations promulgated pursuant
to the Act and found at 15 CFR 931.
4. "Obligations" shall mean the evidence of indebtedness of
the loan by NOAA to the Borrower and shall include Bonds
and Notes.
5. "NOAA" refers to the.National Oceanic and Atmospheric
Administration.
6. "Government" means "NOAA."
7. "Borrower" refers to the recipient of a loan under this
agreement. .
8. "Project" means the facilities. and/or the property. real
or personal. which is financed wholly or in part by the
Government.
9. "ocZM" refers to NOAA's Office of Coastal Zone Management.
10. ",A-102" means Office of Management and Budget Circular
,A-102. "Uniform Administrative Requirements for Grants-In-Aid
to State and !,t)cal Governments."
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U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION
OFFICE OF COASTAL ZONE MANAGEMENT
Coastal Energy Impact Program
Construction Loan Agreement
Standard Terms and Conditions
A. Definitions
Except to the extent modified or supplemented by this Loan
Agreenent, any term not defined below but defined in the Act
or Regulations (as defined below) shall have the same meaning
when used herein.
1. "Agreement" means this Loan Agreement, and any amendments
or supplements thereto.
2. "Act" means the Coastal Zone Management Act of 1972
(P.L. 92-583) as amended by the Coastal Zone Management
Amendments of 1974 (P.L. 93-612) and 1978 (P.L. 94-370).
3. "Regulations" means those regulations promulgated pursuant
to the Act and found at 15 CFR 931.
4. "Obligations" shall mean the evidence of indebtedness of
the loan by NOAA to the Borrower and shall include Bonds
and Notes.
5. "NOAA" refers to the.National Oceanic and Atmospheric
Administration.
6. "Government" means "NOAA."
7. "Borrower" refers to the recipient of a loan under this
agreement. .
8. "Project" means the facilities, and/or the property, real
or personal, ~hich is financed ~holly or in part by the
Government.
9. tlOCZM" refers to NOAA's Office of Coastal Zone Management.
10. tI,A-102" means Office of Management and Budget Circular
A-102, "Uniform Administrative Requirements for Grants-In-Aid
to State and Local Governments."
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B. Use of Loan Funds
1. Loan funds are to be used only for the purposes and
activities covered by the Borrower's approved project
and budget.
2. Funds will be used in a manner that is compatible with
the State's developing coastal zone management program
or consistent with the State's approved coastal zone
management program.
C. Procurement Standards
_i
The Borrower may use its procurement regulations which reflect
applicable State and local law, rules and regulations, provided
that procurements made with Federal loan funds adhere to the
standards set forth in Attachment 0 of A-102.
.
D. Final Plans and Specifications
The Borrower shall, upon request of the Government, provide to
the Governm~~t one (1) copy of its final plans and specifications
for the Project.
E. Construction Contract Awards
-
,
Prior to the award of construction contracts the Borrower will
furnish the following to the Government:
vi
1. Tabulation of bids, with a covering letter which clearly
sets forth the name(s) of the Contractor(s) to whom award
is proposed; the bides); the alternates, where applicable,
to be taken by number and amount; and the resultant total(s)
of the proposed avard. The tabulation will also show the
designing Architect/Engineer's estimate. The tabulation
must be accompanied by a certification of the Architect/Engineer
as to the correctness and completeness of the tabulation.
The certificate must be accompanied by a statement from the
Architect/Engineer recommending award to the low bidder. If
award is recommended to other than the low bidder, the reasons
must be fully stated, and accompanied by certification by the
Borrower that such action is legal under local and State
procurement law.
2. A copy of the complete bid form of the bidder to whom tbe
Borrower proposes to make the award.
3. A statement signed by the Authorized Representative of the
Borrower that:
a. all bids were received sealed and opened in his/ber
presence;
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b. the Borrower has sufficient funds in addition to the
funds provided by the Government to complete the
Project, including interim financing;
c. The Borrower has obtained, or can obtain, all land,
rights-of-way, permits, franchises and all Federal,
State, and local coordinations and approvals necessary
to the completion of the Project, and in all other
respects has complied with pertinent Federal, State
and local laws.
F. Bonding and Insurance
1. State or local units of government shall follow their own
normal requirements relating to bid guarantees, performance
bonds, and payment bonds except for contracts exceeding $100,000;
for contracts exceeding $100,000 the minimum requirements shall
be as follows: A bid guarantee from each bidder equivalent
to five percent of the bid price; a performance bond on the
part of the contractor for 100 percent of the contract price;
and a payment bond on the part of the contractor for 100 percent
of the contract price.
2. The Borrower convenants that each of its officials or employees
having custody of the Project funds during acquisition,
construction, development and operation shall be bonded at
all times in such amount as normally required by the State.
-.0;-
3. The Borrower shall carry insurance, and require each contractor
and subcontractor to carry insurance, of such types and in
such amounts as normally required by the State.
~
G. Prior written Approval of Changes
The Borrower must obtain pripr written
major program changes. These include:
the Project design, or plans set forth
specifications; and (b) changes in the
as specified in A-I02.
approval from the government for
(a) changes of substance in
in the final plans and
approved project budget
H. Disbursement of Loan Funds
Loan disbursement will ordinarily be made when the project is
substantially complete.
1. Allowable Cost
Except where inconsistent with Federal requirements, State procedures
and practices will apply to funds disbursed by the State agency and
local procedures and practices to funds disbursed by units of local
government. Federal Management Circular No. 74-4, "Principles f~r
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"
Determining Costs Applicable to Grants and Contracts ~ith State
and Local Governments" and the Regulations must be complied ~ith
by the Borrower ~ith respect to the treatment of specific items
and their cost allowability.
J. Borrower Financial Management System
1. Responsibility of Borrower
The Borrower must establish fiscal control and fund accounting
procedures which assure proper disbursement of, and accounting
. for, loan funds and any required non-Federal expenditures.
2. Recording and Documentation of Receipts and Expenditures
Accounting procedures must provide for an accurate and timely
recording of receipt of funds by source, of expenditures made
from such funds, and of unexpended balances. Controls must
be established which are adequate to ensure that expenditures
charged to ioan activities are for allowable purposes and that
documentation is readily available to verify that such charges
are accurate.
K. Suspension or Termination of the Loan
1.
The Government shall have the right to suspend or te~inate
for cause all or any part of its obligation hereunder if:
(a) Any representation made by the Borrower to the
Government in connection with the application for
Government assistance shall be incorrect or incomplete
in any material respect.
(b) The Borrower fails to comply with the essential
condition?f this Agreement, that it shall diligently
pursue the development of this project to ensure completion
within the le~gth of time proposed in the Offer. It is
agreed that the Borrower shall notify the OCZM Assistant
Administrator in the event delays occur which substantially
affect the accomplishment of the project.
(c) The scope, intent or purpose of the Project is changed
substantially so as to significantly affect the accomplishment
of the Project as intended.
(d) The Borrower has violated commitments made by it in its
application and supporting documents or has violated any of
the terms or conditions of this Agreement.
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2. The obligations hereunder may be terminated for convenience if:
(a) Both the Borrower and the Government agree that
continuation of the Project would not produce beneficial
results commensurate with the further expenditure of
funds.
(b) Both the Borrower and the Government shall agree upon
the termination conditions, including the effective date
and, in the case of partial terminations, the portion to be
terminated.
(c) The Borrower agrees to incur no new obligations for the
termination portion after the effective date and to cancel
or satisfy all outstanding obligations as of that date.
L. Property Management Standards
The Borrower may use its property management standards and
procedures if they, as a minimum, contain the provisions of A-102,
Attachment N.
M. Officials Not to Benefit
No member of or delegate to Congress, or resident Cocmissioner,
shall be admitted to any share or part of this grant or to any
benefit that may arise therefrom.
N. Access to Records and Right to Audit
1. The Borrower agrees that the Comptroller General of the United
States or any of his/her duly authorized representatives and
the Secretary ~f Commerce or any of his/her duly authorized
representatives shall, until the expiration of three (3)
years after completion of the project for which this loan
was made or used, have access to and the right to examine any
directly pertinent books, documents, papers and records of
the Borrower involving transactions related to this loan.
The Borrower agrees to include the substance of this paragraph
in all subgrants, contracts, and subcontracts payable from
funds in whole or in part under this loan.
o. Maintenance of Records
The Borrower shall require each of its contractors and subcontractors
to establish, maintain and preserve property management, project
performance, financial management and reporting documents and systems,
and such other books, records, and other data pertinent to the Project
as the Government may require. Such records shall be retained for-a
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period of three years following completion of the Project, or
until an audit is completed and all questions arising therefrom
are resolved, whichever is sooner.
P. Signs at Project Site
The Borrower shall cause to be erected at the site of the Project,
ahd maintained during construction, signs satisfactory to NOAA
identifying the Project and indicating the fact that NOAA is
participating in the development of the Project. (Sample Attachment I)
Q. Disputes
.
1. Except as otherwise provided by law or any other provision
herein, any dispute arising under the loan which is not disposed
of by agreement shall be decided by the Chief, Grant/Loan
Operations Staff who shall reduce the decision to writing and
mail or otherwise furnish a copy thereof to the Borrower. This
decision shall be final and conclusive unless, within 30 days
from the date of receipt of the written decision, the Borrower
mails or otherwise directs a written appeal addressed to the
Administrator of NOAA. The decision of the Administrator or his
duly authorized representative for the determination of such
appeal, shall be final and conclusive unless determined by a court
of competent jurisdiction to have been fraudulent or capricious,
or arbitrary, or so grossly erroneous as necessarily to imply
bad faith, or not supported by substantial evidence. In connection
with an appeal proceeding under this clause, the Borrower shall be
afforded an opportunity to be heard and to offer evidence in support
of any appeal.
~
2. This "disputes" clause does not preclude consideration of questions
of law in connection with decisions provided for in paragraph 1.
above: provided, that nothing in the loan shall be construed as
making final the decision of any administrative official, representa-
tive, or board, on a question of law.
3. The Borrower shall have the sole authority and full responsibility,
without recourse to the Federal Government or any of its agencies,
for the settlement and satisfaction of all contractual and
administrative issues arising out of this loan.
R. General Requirements During Construction
1. General procedures contained in the "Engineering and Construction
Guidelines for Applicants" - 42 Federal Register page 64830,
dated December 28, 1977, shall be followed during construction.
(See Attachment II)
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2. The Borro~er shall submit two copies of quarterly performance
reports within 30 days following the end of the quarter which
indicate whether time schedules are being met, and which
describe any problems or factors contributing to or expected
to cause delay. In addition, the Borro~er shall pro~pt1y for"
ward to OCZM one copy of each partial payment request from
contractors as approved for payment by the Borrower.
3. The Borrower shall submit semiannually, ~ithin 45 days following
the six-month period, three copies of a financial report on the
project which shall disclose the actual expenditures to date
against the approved project budget.
~.'
4.
Reports shall be submitted to:
'.
D~partment of Commerce
National Oceanic and Atmospheric Administration
Office of Coastal Zone Management
Grant/Loan Operations Staff
3300 Whitehaven Street, N. W.
Washington, D. C. 20235
S. Loan Requirements
1. The Borro~er shall initiate and prosecute to completion all pro-
ceedings and execute all documents (in form satisfactory to the
Government) necessary to the authorization, issuance, and sale
of the Obligations and to the security thereof. When said pro-
ceedings have been completed to the point of, but not including,
the delivery of the Obligation or Obligations to the Government,
the Borrower shall request the Government to purchase the Obli-
gations. The request shall be supported by such data as the
Government shall require to determine ~hether the Borro~er has
complied with the Terms and Conditions of this Agreement.
2. The Borrower shall furnish the Government with a transcript of
proceedings which should include, among other things, conformed
copies of all executed documents for the authorization, issuance,
sale and security of the Obligations evidencing that the Obliga-
tions, when delivered and paid for will constitute binding and
legal obligations payable and secured in accordance with their
tenor, and that all proceedings for financing the acquisition,
construction and development of the project preliminary to the
delivery of the Obligations to the Government have occurred in
due time, form, and manner, as required by law.
3. Simultaneously with the delivery of any Obligations to the Gov-
ernment, the Borrower shall furnish to the Government from Bond
Covnsel satisfactory to the Government an opinion which shall
express approval of all of the Obligations~ and specifically
and unqualifiedly the Obligations then being delivered to the-,
Government, and shall state that said Obligations have been
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issued pursuant to all requirements of law, and that said
Obligations, when delivered and paid for, will constitute valid
legal and binding obligations of the Borrower enforceable in
accordance with their terms payable and secured in accordance
with the tenor thereof and the terms and conditions of this
Agreement.
Bond Counsel shall further deliver an opinion satisfactory to
the Government that Borrower has the legal power and is duly
authorized to enter into and carry out the terms of all docu-
ments issued in connection with the delivery of the Obligations
and that all such documents are in form, content, and substance
acceptable to such Counsel and constitute in accordance with
their respective terms valid, legal and binding instruments
enforceable against the Borrower.
~
4. Borrower shall include in the proceedings for the authorization,
issuance, sale and security of the Obligations, provisions for
the payment of the principal of and interest on the Obligation
and for the security thereof of the nature required to assure
such payment and to .safeguard the loan hereunder, including, in
case the Obligations are payable in whole or in part from any
special sources of revenues, provisions designed to assure the
production of such revenues and the application thereof to the
extent required for the payment and security of the Obligations
and interest thereon, including the maintenance of reasonable
reserves. Borrower shall take all action and execute all docu-
ments necessary and deemed appropriate by NOAA to perfect a
security interest in the security underlying the obligations in
favor of Government and to provide for the assignment of such
security to the Government.
~
5. So long as the Government holds any of the Obligations, the
Borrower shall furnish operating statements for the project,
and any facilities, the revenues of which are pledged to pay-
ment of the Obligations, in such form and substance for such
periods as may be requested by the Government.
6. The Borrower shall, so long as the Government holds any Obliga-
tions, carry insurance of such types and in such amounts as is
the usual practice in the area.
1. If required by the Government, the Borrower will enter into a
Trust Agreement designating a bank acceptable to the Government
as Trustee and containing such other terms and provisions as
may be satisfactory to the Government. The Trust Agreement
shall provide for the payment of all appropriate revenues into
an account with the Trustee with provisions for the payment of
current expenses therefrom and the transfer of the net remain-
ing funds into appropriate" additional accounts for the purpose
of providing a maintenance reserve, funds for current bond/note
10.
11.
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service; reserves for bond/note service ace bond/note redemption,
all in a canner and form acceptable to the GO?~~ent. Th~ funds
in all such accounts shall be held in trust and shall be secured
as required by latl for deposit of Governmec:: funds.
8.
In the event a Trust Agreement is not required by the Governnent7
the Borrower may be required by the Governme~~ to establish such
accounts, perfo~ such duties and comply with such terws and
conditions as the Government might. ordinarily requi~e of a
Trustee in a Trust Agre~ent.
9.
The Borrower shall establish and.maintain account~ng procedures
as may be necessary or helpful in the accurate accounting for
and segregation of revenues and for the allocation of expenses;
Such procedures shall be in conformance ~th generally accepted
accounting procedures.
Moneys on deposit to the credit of accounts and funds established
and maintained in confo~ty with the provisions of this Ag~ee-
ment or to fund payments from net revenues may be invested by the
Borrower, in direct Obligations of? or Obligations, the principal
and the interest on which ar~ guaranteed by tbe U. S. Goyern=ent,
A "Default" under a loan Obligation vill occur when a scheduled
payment as listed in the Obligation has not been paid to NO.~
on the date listed in the paywent schedule an~ remains unpaid
60 days thereafter, a~cept under the following conditions:
a. Failure to make a scheduled payment when Lender is NO~~
and ..hen there is inadequate notice to Borro~ler of change
in designation of the Lender or its address if reasonable
effort to pay is made.
b. If Borrower is not properly notified of change in agency
admir~stering tbe Act, or custodian of obligation, i.e.,
Federal Reserve ~ank of Richmond.
c. ~en tne Borrower has applied for repayment assistance
within a thirty-day period following the failure to make a
scheduled payment and until'15 days following such tiQe as
the Borrower is notified of the Assistant Administrator's
determination regarding repayment assistance.
d. When the Borrower appeals the decision of the Assistant
Administrator regarding repayment assistance a default will
not occur until 15 days [01101"ing notification of the Admin-
istrator of NO_~ as to ~he appeal decision.
e. ~~en the Borrower is granted repayment assistaace and
has met the teres and conditions of such repa)~ent assist-
ance;
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f. When the Assistant Administrator determines that
extenuating circumstances exist and so notifies the
Borrower.
T.
Repayment Assistance
If the Assistant Administrator finds that any coastal state or unit
of general purpose local government which is a Borrower is unable
to meet its obligations pursuant to a loan made under section
308(d)(1) of the Act because the actual increases in employment and
related population resulting from coastal energy activity and the
facilities associated with such activity do not provide adequate
revenues to enable such state or unit to meet such obligations in
accordance with the appropriate repayment schedule, the Assistant
Administrator shall, after review of the information submitted by
such state or unit pursuant to section 308(e)(3) of the Act take,
subject to the Special Conditions contained in the Agreement, any
of the following actions: .
1. Modify appropriately the terms and conditions of such loan.
2. Refinance such loan.
3. Make a supplemental loan to such state or unit the proceeds of
which shall be applied to the payment of principal and interest
due under such loan.
4. Make a grant to such state or unit the proceeds of which shall
be applied to the payment of principal and interest due under
such loan.
U. Statutory Requirements for Construction Contracts and Subcontracts
Borrower shall comply with and shall require each of its contractors
, and subcontractors employed in the completion of the project to com-
ply with all applicable Federal, State, Territorial, and local laws,
and in particular:
1. The Copeland "Anti-Kickback" Act, as amended (18 use 874) as
supplemented in Department of Labor regulations (41 CFR Chap-
ter 60).
2. Nondiscrimination, Title VI of the Civil Rights Act of 1964
(P.L. 88-352), as amended, (42 use 2000d) and the requirements
imposed by the Regulations of the Department of Commerce (15 CFR
Part 8) issued pursuant to that Title. In accordance therewith
no person in the United States shall, on the ground of race.
color. or national origin, be excluded from participation in. be
denied the benefits of. or be otherwise subjected to discrimina-
tion under any program or activity for which the Borrower receives
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Federal financial assistance and will immediately take any
measures necessary to effectuate this agreement.
3. The Flood Disaster Protection Act of 1973 (P.L. 93-234), as
amended. The Borrower will fulfill any flood insurance require-
ments under this Act and any regulations issued thereunder by
the U. S. Department of Housing and Urban Development or which
may be issued by NOAA.
4. Architectural Barriers Act (P.L. 90-480), 42 use 4151, as amended,
and the regulations issued or to be issued thereunder, prescribing
standards for the design and construction of any building or
facility intended to be accessible to the public or ~hich may
result in the employment of handicapped persons therein.
..
5. Rehabilitation Act of 1973, 29 USC 794, Executive Order 11914.
No otherwise qualified handicapped individual shall, solely by
reason of his/her handicap, be denied the benefits of, be excluded
from participation in, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.
6. The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (P.L. 91-646, as amended), 15 CFR Part 916.
7. The National Environmental Policy Act of 1969 (P.L. 90-190); the
National Historic Preservation Act of 1966 (80 Stat 915, 16 USC
470); and Executive Order No. 11593 of May 31, 1971.
8. Equal Employment Opportunity, Executive Order 11246, as amended
by Executive Order 11375, and as supplemented in Department. of
Labor regulations (41 CFR Chapter 60).
The Borrower shall cause or require to be inserted in full in
any construction contract or subcontract for more than $10,000,
or modification thereof, as defined in the rules and regulations
of the Secretary of Labor at 41 CFR Chapter 60, which is paid
for in whole or in part with assistance provided under this Agree-
ment, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as
follows:
(a) The contractor will not discriminate against any employee
or applicant for employment because of race, color, religion, sex,
or national origin. The contractor will take affirmative action to
ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion,
sex, or national origin. Such action shall include, but not be
limited to, the following: Employment. upgrading, demotion, or
transfer, recruitment or recruitment advertising; layoff or termina-
tion; rates of payor other forms of compensation; and select~on for
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training, including apprenticeship. The contractor agrees to post
in conspicuous places, avai~ab1e to employees and applicants for
employment, notices to be provided by the contracting officer setting
forth the provisions of this nondiscrimination clause.
(b) The contractor will, in all solicitations or advertisements
for employees placed by or on behalf of the contractor, state that
all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, or national origin.
.,
(c) The contractor will send to each labor union or representati,
of workers with which he has a collective bargaining agreement or othe
contract or understanding, a notice to be provided advising the said.
labor union of workers' representatives of the contractor's commitment
under this section and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
(d) The contractor will comply with all provisions of Executive
Order 11246 of September 24, 1965, and of the rules, regulations, and
relevant orders of the Secretary of Labor.
(e) The contractor will furnish all information and reports
required by Executive Order 11246 of September 24, 1965, and by the
rules, regulations, and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to his/her books, records, and account
by NOAA and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
(f) In the event of the contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of such rules.
regulations, or orders, this contract may be cancelled, terminated or
suspended in whole or in part and the contractor may be declared
ineligible for further Government contracts or Federally assisted
construction contract procedures authorized in Executive Order 11246
of September 24, 1965, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
(g) The contractor will include the portion of the sentence
immediately preceding paragraph (a) and the provisions of paragraphs
(a) through (g) in every subcontract or purchase order unless exempte
by rules, regulations, or orders of the Secretary of Labor issued
pursuant to section 204 of Executive Order 11246 of September 24, 197
80 that such provisions will be binding upon each subcontractor or
vendor. The contractor will take such action with respect to any
subcontract or purchase order as NOAA may direct as a means of en-
forcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved
in, or is threatened with, litigation with a subcontractor or vendor
8S a result of such direction by NOAA, the contractor may request the
United States to enter into such litigation to protect the intere~t
of the United States.
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The Borro~er further agrees that it will be bound by the above equal
opportunity clause with respect to its own employment practices when
it participates in federally-assisted construction work: provided,
that if the Borrower so participating is a State or local government.
the above equal opportunity clause is not applicable to any agency,
instrumentality or subdivision of such government ~hich does not
participate in work on or under the contract.
The Borro~er agrees that it will assist and cooperate actively with
NO.~~ and the Secretary of Labor in obtaining the compliance of con-
tractors and subcontractors with the equal opportunity clause and
the rules, regulations, and relevant orders of the Secretary of Labor;
that it will furnish NOAA and the Secretary of Labor such information
as they may require for the supervision of such compliance; and that
it will otherwise assist NOAA in the discharge of its primary respon-
sibility for securing compliance.
The Borrower further agrees that it will refrain from entering
into any contract or contract modification subject to Executive
Order 11246 of September 24, 1965. with a contractor debarred
from, or who has not demonstrated eligibility for, Government
contracts and Federally assisted construction contracts pursuant
to the executive order and will carry out such sanctions and
penalties for violation of the equal opportunity clause as may
be imposed upon contractors and subcontractors by NOAA or the
Secretary of Labor pursuant to Part II, Subpart D of the Exec-
utive Order. In addition, the Borrower agrees that if it fails
or refuses to comply with these undertakings, NOAA may take any
or all of the following actions: Cancel, terminate, or suspend
the Loan in whole or in part; refrain from extending any further
assistance to the Borrower under the program with respect to
which the failure or refusal occured until satisfactory assurance
of future compliance has been received from such Borrower; and
refer the case to the Department of Justice for appropriate
legal proceedings.
9.
Certification of Nonsegregated facilities as required by the
May 9, 1967, order (32 F.R. 7439, May 19, 1967) on Elimination
of Segregated facilities, by the Secretary of Labor. Prior to
the award of any construction contract or subcontract exceeding
$10,000, the Borrower shall require the prospective prime con-
tractor and each prime contractor shall require each subcon-
tractor to submit the following certification:
By the submission of this bid, the bidder, offeror. applicant,
or subcontractor certifies that he/she does not maintain or
provide for his/her employees any segregated facilities at any
of his/her establishments, and that he/she, does not permit his!
her employees to perform their services at 'any location. under
his/her control where segregated facilities are maintained.
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Be/she certifies furtLer that he/she will not maintain or' provide
for his/her employees any segregated facilities at any of his/her
establishments, and that he/she will not permit his/her employees
to perform their services at any location, under his/her control,
where segregated facilities are maintained. The bidder, offeror,
applicant, or subcontractor agrees that a breach of this certifi-
cation is a violation of the Equal Opportunity clause in this
contract. As used in this certification, the term "segregated
facilities" means any waiting rooms, work areas, rest rooms and
wash rooms, restaurants and other eating areas, time clocks,
locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transpor-
tation, and housing facilities provided for employees which are
segregated by explicit directive or are in fact segregated on
the basis of race, creed, color or national origin, because of
habit, local custom, or otherwise. Be/she further agrees that
(except where he/she has obtained identical certifications from
proposed subcontractors for specific time periods) he/she will
obtain identical certifications from proposed subcontractors prior
to the award of subcontracts exceeding $10,000 which are not
exempt from the provisions of the Equal Opportunity clause;
that he/she will retain such certifications in his/her files;
and that he/she will forward the following notice to such
proposed subcontractors (except where the proposed subcontrac-
tors have submitted identical certifications for specific time
periods):
NOTICE TO PROSPECTIVE SUBC01~RACTORS OF REQUIREME1~ FOR
CERTIFICATIONS OF NONSEGREGATED FACILITIES
.
A Certification of Nonsegregated Facilities, as required by the
May 9, 1967, order (32 F.R. 7439, May 19, 1967) on Elimination
of Segregated Facilities, by the Secretary of Labor, must be
submitted prior to the award of a subcontract exceeding $10,000
which is not exempt from the provisions of the Equal Opportunity
clause. The Certification may be submitted either for each
subcontract or for all subcontracts during a period (i.e.,
quarterly, semiannually, or, annually).
....
NOTE
The penalty for making false statements in offers is prescribed
in 18 U.S.C. 1001.
10. The Clean Air Act, as amended, 42 USC 1857 et seq., the Federal
Water Pollution Control Act, as amended, 33 USC 1251 et seq. and
the regulations of the Environmental Protection Agency will re-
spect thereto, at 40 CFR Part IS, as amended from time to time.
In compliance with said regulations, the Borrower shall cause
or require to be inserted in full in all contracts, subcontracts,
and subgrants in excess of $100,000 funded with assistance pro-
vided under this Agreement, the following requirements: '.
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. (a) A stipulation by the contractor or subcontractors that
any facility to be utilized in the performance of any contract
or subcontract is not listed on the List of Violating Facilities
issued by the Environmental Protection Agency (EPA) pursuant to
40 CFR 15.20.
(b) Agreement by the contractor to comply with all the
requirements of section 114 of the Clean Air Act, as amended,
(42 USC 1857 et seq.) section 308 of the Federal Water Pollution
Control Act, as amended, (33 use 1318) relating to inspection,
monitoring, entry, reports, and information, as well as all other
requirements specified in said section 114 and section 308, and
all regulations and guidelines issued thereunder.
(c) A stipulation that as a condition for the award of the
contract prompt notice will be given of any notification received
from the Director, Office of Federal Activities, EPA, indicating
that a facility utilized or to be utilized for the contract is
under consideration to be listed on the EPA List of Violating
Facilities.
(d) Agreement by the contractor that he/she will include
or cause to be included the criteria and requirements in para-
graph (1) through (4) of this section in every nonexempt sub-
contract and requiring that the contractor will take such action
as the Government may direct as a means of enforcing such pro-
visions.
In no event shall any amount of the assistance provided under
this Agreement be utilized with respect to a facility which has
given rise to a conviction under section l13(c)(1) of the Clean
Air Act or section 309(c) of the Federal Water Pollution Control
Act.
V. Miscellaneous
,
1.
This Agreement may be amended or supplemented from time to time
by an instrument in writing executed by the Borrower and the
Assistant Administrator.
2.
The non-statutory conditions of this agreement may be waived in
writing by the Assistant Administrator either in his/her discre-
tion or upon request by Borrower.
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PROJECT BUDGET
Item
Administration
Engi neeri ng ,
Construction
Contingencies
Total
EXHIBIT E
loan No. 90-8-M01-02A5B-03
Budget Amount
$ 25,000
$ 106,000
$1,522,000
$ 47,000
$1,700,000