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HomeMy WebLinkAbout08. 21-329JUNE 22, 2021 21-329 RESOLUTION (CARRIED___7-0____ LOST _______ LAID OVER _______ WITHDRAWN _______) PURPOSE: APPROVE SAFE DRINKING WATER LOAN PROGRAM FINANCIAL ASSISTANCE AGREEMENT WITH THE WISCONSIN DEPARTMENT OF NATURAL RESOURCES FOR PROJECT NO. 4874-13 (Private Lead Service Replacements) INITIATED BY: DEPARTMENT OF PUBLIC WORKS WHEREAS, the City of Oshkosh (the “Municipality“) wishes to undertake a project to replace private lead service lines at residences, pre k -12 schools and licensed day care centers, identified as DNR No. 4874-13 (the “Project”); and WHEREAS, the Municipality has applied to the Safe Drinking Water Loan Program (the “SDWLP”) for financial assistance in the form of a loan made by the SDWLP to the Municipality of which all the principal will be forgiven at the time that loan disbursements are made to the Municipality, pursuant to the DNR Financial Assistance Agreement; and WHEREAS, the SDWLP has determined that it can provide a loan with principal forgiveness in an amount up to $280,000.00 that it has identified as being eligible for SDWLP funding; NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the City Manager and City Clerk are hereby authorized by and on behalf of the Municipality to execute the attached Principal Forgiven Financial Assistance Agreement that contains the terms and conditions of the SDWLP award for the Project in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. I:\Engineering\Tracy Taylor\Memos to Mayor & Common Council\2021\LSLR SDWL FAA Agreement_6-17-21.docx TO: Honorable Mayor and Members of the Common Council FROM: James Rabe, Director of Public Works DATE: June 17, 2021 RE: Approve Safe Drinking Water Loan Program Financial Assistance Agreement with the Wisconsin Department of Natural Resources (WDNR) for Project No. 4874-13 (lead service replacement) BACKGROUND The WDNR provides financial assistance for communities undertaking water system improvements through the Safe Drinking Water Loan Program (SDWLP). In 2017, the City received a Principal Forgiveness Loan (PFL) through the SDWLP in the amount of $500,000 to assist residents in replacing private-side lead water service laterals. In 2018, the City also received an additional PFL through the SDWLP in the amount of $300,000. These first two grants have allowed the City to assist 343 property owners in replacing their private- side lead water service. The City has applied for and received a third PFL to assist residents in replacing private-side lead water service laterals. The WDNR has revised the funding calculation, and this third PFL is in the amount of $280,000. At the March 28, 2017 meeting, the Common Council adopted changes to Chapter 20 of the Municipal Code, which requires the complete replacement of a lead water service lateral if a repair or partial replacement occurs. A program for private-side lead water service lateral replacements was also created, which provides funding to property owners for replacing their private-side lead water service laterals in coordination with construction projects or in an emergency situation where a repair or partial replacement would have previously occurred. The funding provided through this program comes from the SDWLP. ANALYSIS Approval of this agreement will allow the City to recover costs associated with assisting the residents with the replacement of their private-side lead water service laterals. Without this program, the City could not assist residents in replacing their private-side lead water service laterals. FISCAL IMPACT There is no fiscal impact to the City related to this agreement. This SDWLP agreement is for a Principal Forgiveness Loan, which means there is no repayment. One change from the prior loans is the City must complete the public-side relay prior to applying for reimbursement. RECOMMENDATIONS I recommend approval of the Safe Drinking Water Loan Program Financial Assistance Agreement with the WDNR for Project No. 4874-13. Approved, Mark A. Rohloff City Manager State of Wisconsin Financial Assistance Agreement Department of Natural Resources Safe Drinking Water Loan Program Bureau of Community Financial Assistance Form 8700-214B rev 4/21 101 South Webster Street, 2nd Floor PO Box 7921 Madison, Wisconsin 53707-7921 STATE OF WISCONSIN SAFE DRINKING WATER LOAN PROGRAM LEAD SERVICE LINE (LSL) PRINCIPAL FORGIVEN FINANCIAL ASSISTANCE AGREEMENT _____________________________________________________________________________________ _____________________________________________________________________________________ STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES DEPARTMENT OF ADMINISTRATION and CITY OF OSHKOSH _____________ $280,000 With $280,000 PRINCIPAL FORGIVENESS FINANCIAL ASSISTANCE AGREEMENT _____________ Dated as of July 14, 2021 _____________ This constitutes a Financial Assistance Agreement under the State of Wisconsin's Safe Drinking Water Loan Program. This agreement is awarded pursuant to ss. 281.59 and 281.61, Wis. Stats. The purpose of this agreement is to award financial assistance from the Safe Drinking Water Loan Program. This agreement also discloses the terms and conditions of this award. This agreement is only effective when signed by authorized officers of the municipality, the State of Wisconsin Department of Natural Resources, and the State of Wisconsin Department of Administration. The Department of Natural Resources and the Department of Administration may rescind or terminate this agreement if the municipality fails to comply with the terms and conditions contained within. Any determination or certification made in this agreement by the Department of Natural Resources or the Department of Administration is made solely for the purpose of providing financial assistance under the Safe Drinking Water Loan Program. ____________________________________________________________________________________ Municipal Identification No. 70266 Safe Drinking Water Loan Program Project No. 4874-13 TABLE OF CONTENTS ARTICLE I DEFINITIONS; RULES OF INTERPRETATION Section 1.01. Definitions 2 Section 1.02. Rules of Interpretation 3 ARTICLE II REPRESENTATIONS Section 2.01. Representations of the SDWLP 4 Section 2.02. Representations of the Municipality 4 ARTICLE III FINANCIAL ASSISTANCE PROVISIONS Section 3.01. Financial Assistance Clause 7 Section 3.02. Disbursement of Financial Assistance 7 Section 3.03. Remedies 7 Section 3.04. FAA Effective Date and FAA Term 8 ARTICLE IV CONSTRUCTION OF THE PROJECT Section 4.01. Construction of the Project 9 Section 4.02. Completion of the Project 9 Section 4.03. No Warranty Regarding Condition, Suitability, or Cost of Project 9 ARTICLE V COVENANTS Section 5.01. Application of Financial Assistance 10 Section 5.02. Operation and Maintenance 10 Section 5.03. Compliance with Law 10 Section 5.04. Public Ownership 10 Section 5.05. Establishment of Project Accounts 10 Section 5.06. Records 10 Section 5.07. Project Areas 10 Section 5.08. Notice of Impaired System 11 Section 5.09. Hold Harmless 11 Section 5.10. Nondiscrimination Covenant 11 Section 5.11. Employees 11 Section 5.12. Reimbursement 11 Section 5.13. Rebates 11 Section 5.14. Maintenance of Legal Existence 11 Section 5.15. American Iron and Steel 12 Section 5.16. Wage Rate Requirements 12 ARTICLE VI MISCELLANEOUS Section 6.01. Notices 13 Section 6.02. Binding Effect 13 Section 6.03. Severability 13 Section 6.04. Execution in Counterparts 13 Section 6.05. Applicable Law 13 Section 6.06. Further Assurances 13 Section 6.07. Termination 13 Section 6.08. Rescission 14 EXHIBIT A PROJECT BUDGET SHEET EXHIBIT B CONTRACT UTILIZATION OF DISADVANTAGED BUSINESS ENTERPRISES EXHIBIT C PROJECT MANAGER SUMMARY 1 WITNESSETH: WHEREAS, this is a FINANCIAL ASSISTANCE AGREEMENT (the “FAA”), dated July 14, 2021, between the STATE OF WISCONSIN Safe Drinking Water Loan Program (the "SDWLP"), by the Department of Natural Resources (the "DNR") and the Department of Administration (the "DOA"), acting under authority of ss. 281.59 and 281.61, Wis. Stats., as amended (the "Statute"), and the City of Oshkosh, a municipality within the meaning of the Statute, duly organized and existing under the laws of the State of Wisconsin (the "Municipality"); and WHEREAS, the United States, pursuant to the Federal Safe Drinking Water Act Amendments of 1996 (the "Act"), requires each state to establish a drinking water revolving loan fund to be administered by an instrumentality of the state before the state may receive capitalization grants for eligible projects from the United States Environmental Protection Agency (the "EPA"), or any successor which may succeed to the administration of the program established by the Act; and WHEREAS, the State of Wisconsin has, pursuant to the Statute, established the SDWLP to be used in part for purposes of the Act; and WHEREAS, the State of Wisconsin has, pursuant to s. 25.43, Wis. Stats., established a State of Wisconsin Environmental Improvement Fund which includes the SDWLP; and WHEREAS, DNR and DOA have the joint responsibility to provide SDWLP financial assistance to municipalities for the construction of eligible drinking water projects, all as set forth in the Statute; and WHEREAS, the Municipality has submitted to DNR an application for financial assistance (the "Application") for a project (the "Project"), and DNR has approved the Application and determined the Application meets the DNR criteria for project eligibility established in applicable state statutes and regulations; and WHEREAS, DNR has determined that the Municipality and the Project are not ineligible for financial assistance under s. 281.61(2g), Wis. Stats.; and WHEREAS, DNR has determined the SDWLP will provide financial assistance to the Municipality by making a loan (the “Loan”) under s. 281.59(9), Wis. Stats., for the purposes of that subsection, and providing Principal Forgiveness of the Loan principal; NOW, THEREFORE, in consideration of the promises and of the mutual representations, covenants, and agreements herein set forth, the SDWLP and the Municipality, each binding itself, its successors, and its assigns, do mutually promise, covenant, and agree as follows: 2 ARTICLE I DEFINITIONS; RULES OF INTERPRETATION Section 1.01. Definitions The following capitalized terms as used in this FAA shall have the following meanings: "Act" means the federal Safe Drinking Water Act, 42 U.S.C. 300f to 300j-26. “American Iron and Steel” means the requirements for using American iron and steel as mandated under EPA’s Drinking Water State Revolving Fund Program. "Application" means the written application of the Municipality dated October 20, 2020, for financial assistance under the Statute. "Business Day" means any day on which State offices are open to conduct business. “CWFP” means the State of Wisconsin Clean Water Fund Program, established pursuant to ss. 281.58 and 281.59, Wis. Stats., and managed and administered by DNR and DOA. "DNR" means the State of Wisconsin Department of Natural Resources and any successor entity. "DOA" means the State of Wisconsin Department of Administration and any successor entity. "EPA" means the United States Environmental Protection Agency or any successor entity that may succeed to the administration of the program established by the Act. "Final Completion" means all Service Lines to be financed under this FAA have been installed and the Municipality has submitted all necessary Project closeout documentation, including the final request for disbursement of Financial Assistance to the Municipality. “Financial Assistance” means any proceeds provided under this Financial Assistance Agreement in the form of a Loan of which the Loan principal will be forgiven. "Financial Assistance Agreement" or “FAA” means this Financial Assistance Agreement between the SDWLP, by DNR and DOA, and the Municipality. “Lead Service Line” or “LSL” means a Service Line made from or including lead, or galvanized material which is or was downstream of lead, as reported to the Public Service Commission on Schedule W-29. “Loan” means the loan made by the SDWLP to the Municipality of which the principal will be forgiven pursuant to this FAA at the time Loan disbursements are made. "Municipality" means City of Oshkosh, a "local governmental unit" or “municipality” within the meaning of the Statute, duly organized and existing under the laws of the State, and any successor entity. “Principal Forgiveness” means Financial Assistance received in the form of forgiveness of Loan principal amounts pursuant to the Act or this FAA. "Project" means the project assigned SDWLP Project No. 4874-13 by DNR, described in the Project Manager Summary (Exhibit C). "Project Costs" means the costs of the Project that are eligible for financial assistance from the SDWLP under the Statute, which are allowable costs under the Regulations or are costs for which DNR granted a 3 variance to a portion of the Regulations to make them allowable, which have been incurred by the Municipality, an estimate of which is set forth in Exhibit A hereto and made a part hereof. "Regulations" means chs. NR 108, NR 150, NR 166, NR 809, NR 810, and NR 811, Wis. Adm. Code, the regulations of DNR, and ch. Adm. 35, Wis. Adm. Code, the regulations of DOA, adopted pursuant to and in furtherance of the Statute, and ch. 145, Wis. Stats, as administered by the Department of Safety and Professional Services, as such may be adopted or amended from time to time. “SDWLP” means State of Wisconsin Safe Drinking Water Loan Program, established pursuant to the Statute and managed and administered by DNR and DOA. “Service Line” means the water service piping from the curb stop of a municipally-owned water main or service line to the meter, isolation valve, or other water utility service terminal on private residential property, a pre k–12 school, or a licensed and/or certified daycare center. "State" means the State of Wisconsin. “Statute” means ss. 281.59 and 281.61, Wis. Stats., as amended. "Substantial Completion" means the point in time when no further Lead Service Lines are to be replaced by the Municipality using Financial Assistance provided in this FAA or December 31, 2021, whichever occurs first. “Water Diversion Permit” means a DNR permit issued to the Municipality under s. 30.18(2), Wis. Stats., to divert water from a stream or lake in Wisconsin. “Water System” means all structures, conduits, and appurtenances by means of which water is delivered to consumers, except piping and fixtures inside buildings served and service pipes downstream from the curb stop. Section 1.02. Rules of Interpretation Unless the context clearly indicates to the contrary, the following rules shall apply to the context of this FAA: (a) Words importing the singular number shall include the plural number and vice versa, and one gender shall include all genders. (b) All references herein to particular articles or sections are references to articles or sections of this FAA. (c) The captions and headings herein are solely for convenience of reference and shall not constitute a part of this FAA nor shall they affect its meaning, construction, or effect. (d) The terms "hereby", "hereof", "hereto", "herein", "hereunder", and any similar terms as used in this FAA refer to this FAA in its entirety and not the particular article or section of this FAA in which they appear, and the term "hereafter" means after, and the term "heretofore" means before, the date of delivery of this FAA. (e) All accounting terms not otherwise defined in this FAA have the meanings assigned to them in accordance with generally accepted accounting principles, and all computations provided for herein shall be made in accordance with generally accepted accounting principles. 4 ARTICLE II REPRESENTATIONS Section 2.01. Representations of the SDWLP The SDWLP represents and warrants as follows: (a) The SDWLP has complied with the provisions of the Statute and has full power and authority to execute and deliver this FAA, consummate the transactions contemplated hereby, and perform its obligations hereunder. (b) The SDWLP is not in violation of any of the provisions of the Constitution or laws of the State which would affect its powers referred to in the preceding paragraph (a). (c) Pursuant to the Statute, the SDWLP is authorized to execute and deliver this FAA, and to take actions and make determinations that are required of the SDWLP under the terms and conditions of this FAA. (d) The execution and delivery by the SDWLP of this FAA and the consummation of the transactions contemplated by this FAA shall not violate any indenture, mortgage, deed of trust, note, agreement, or other contract or instrument to which the State is a party or by which it is bound, or, to the best of the SDWLP's knowledge, any judgment, decree, order, statute, rule, or regulation applicable to the SDWLP, and all consents, approvals, authorizations, and orders of governmental or regulatory authorities that are required for the consummation of the transactions contemplated thereby have been obtained. (e) To the knowledge of the SDWLP, there is no action, suit, proceeding, or investigation, at law or in equity, before or by any court, public board, or body, pending or threatened, against or affecting the SDWLP, or, to the knowledge of the SDWLP, any basis therefor, wherein an unfavorable decision, ruling, or finding would adversely affect the transactions contemplated hereby or which, in any way, could adversely affect the validity of this FAA or any agreement or instrument to which the State is a party and which is used or contemplated for use in consummation of the transactions contemplated by each of the foregoing. Section 2.02. Representations of the Municipality The Municipality represents and warrants as of the date of this FAA, and with respect to paragraphs (b), (k), (l), (m), (n), and (o), covenants during the term of this FAA, as follows: (a) The Municipality possesses the legal municipal form of a city under ch. 64, Wis. Stats. The Municipality is located within the State and is a "local governmental unit" within the meaning of the Statute, duly organized and existing under the laws of the State, and has full legal right, power, and authority to: (1) conduct its business and own its properties, (2) enter into this FAA, and (3) carry out and consummate all transactions contemplated by this FAA. (b) The Municipality is in compliance and will remain in compliance with its Water Diversion Permit (if any). (c) The governing body of the Municipality has duly approved the execution and delivery of this FAA in the amount of $280,000, and has authorized the taking of any and all action as may be required on the part of the Municipality and its authorized officers to carry out, give effect to, and consummate the transactions contemplated by this FAA. 5 (d) This FAA has been duly authorized, executed, and delivered and constitutes a legal, valid, and binding obligation of the Municipality, enforceable in accordance with its terms. (e) To the knowledge of the Municipality, there is no action, suit, proceeding, inquiry, or investigation, at law or in equity, before or by any court, public board, or body, pending or threatened, against or affecting the Municipality, or, to the knowledge of the Municipality any, basis therefor: (1) affecting the creation, organization, or existence of the Municipality or the title of its officers to their respective offices; (2) seeking to prohibit, restrain, or enjoin the execution of this FAA; (3) in any way contesting or affecting the validity or enforceability of this FAA, or any agreement or instrument relating to this FAA, or used or contemplated for use in the consummation of the transactions contemplated by this FAA; or (4) wherein an unfavorable decision, ruling, or finding could adversely affect the transactions contemplated hereby. (f) The Municipality is not in any material respect in breach of or in default under any applicable law or administrative regulation of the State or the United States or any applicable judgment or decree or any agreement or other instrument to which the Municipality is a party, or by which it or any of its properties is bound, and no event has occurred that, with the passage of time, the giving of notice, or both, could constitute such a breach or default. The execution and delivery of this FAA and compliance with the provisions hereof shall not conflict with, or constitute a breach of or default under, any applicable law or administrative regulation of the State or of the United States or any applicable judgment or decree or any agreement or other instrument to which the Municipality is a party or by which it or any of its property is bound. (g) The resolution of the Municipality authorizing execution of this FAA has been duly adopted by the Municipality and remains in full force and effect as of the date hereof. (h) The Municipality has full legal right and authority and all necessary permits, licenses, easements, and approvals (other than such permits, licenses, easements, or approvals which are not by their nature obtainable prior to Substantial Completion of the Project) required as of the date hereof to carry on its activities relating to the Project, to undertake and complete the Project, and to carry out and consummate all transactions contemplated by this FAA. (i) The Municipality represents that it has not made any commitment or taken any action that shall result in a valid claim for any finders' or similar fees or commitments for obtaining the Loan under this FAA. (j) Each of the facilities constituting a part of the Project is eligible for financing under the Act. The DNR is granting a variance through this FAA to s. NR 166.07(2)(w), Wis. Adm. Code, to allow Service Lines to be eligible for SDWLP funding. Any portions of the Project that are ineligible for financing from the SDWLP are listed within the Project Manager Summary attached hereto as Exhibit C. The Municipality intends the Project to be and continue to be an eligible project under the Statute throughout the term of this FAA. Each Service Line to be replaced as part of the Project will satisfy the federal environmental review requirements. The Project is an eligible project under s. 281.61, Wis. Stats. (k) All amounts shown in Exhibit A of this FAA are costs of a Project eligible for financial assistance under the Act or Statute. All proceeds of any borrowing of the Municipality that have 6 been spent and are being paid with the proceeds of the Financial Assistance made hereunder have been spent on Project Costs. All Project Costs are reasonable, necessary, and allocable by the Municipality to the Project under generally accepted accounting principles. None of the proceeds of the Loan shall be used directly or indirectly by the Municipality as working capital or to finance inventory, as opposed to capital improvements. (l) The Project is and will remain in compliance with all applicable federal, state, and local laws and ordinances (including rules and regulations) relating to zoning, building, safety, and environmental quality. The Municipality has complied with and completed all requirements of DNR necessary to commence construction of the Project prior to the date hereof. The Municipality intends to proceed with due diligence to complete the Project pursuant to Section 4.02 hereof. (m) The Municipality represents that it has satisfied and will continue to satisfy all the applicable requirements in ss. 281.61(3), (4), (5), and (8m), Wis. Stats., ch. NR 166, Wis. Adm. Code, and ch.145, Wis. Stats. (n) The Municipality is in substantial compliance and will remain in substantial compliance with all conditions, requirements, and terms of any financial assistance previously awarded through the federal construction grants program, the Wisconsin Fund construction grants program, the CWFP, and the SDWLP. (o) The Municipality has met all terms and conditions contained herein and certifies that the Project funded through this agreement will result in the entire Service Line being lead-free and that no partial replacement will result in a service line that is still partially lead. (p) The Municipality represents that it has submitted to DNR a budget estimate and documentation related to individuals or firms hired to perform work for the Project, as required by DNR. (q) The representations of the Municipality in the Application are true and correct as of the date of this FAA and are incorporated herein by reference as if fully set forth in this place. (r) There has been no material adverse change in the financial condition or operation of the Municipality or the Project since the submission date of the Application. (s) The Municipality acknowledges that it is eligible to receive Financial Assistance in the form of a Loan of $280,000 with Principal Forgiveness of $280,000 for payment of Project Costs. 7 ARTICLE III FINANCIAL ASSISTANCE PROVISIONS Section 3.01. Financial Assistance Clause Prior to disbursement, the Financial Assistance shall be held by the SDWLP. Earnings on undisbursed Loan funds shall be for the account of the SDWLP. Financial Assistance shall be disbursed only upon submission by the Municipality of disbursement requests and approval thereof as set forth in Section 3.02 hereof. Section 3.02. Disbursement of Financial Assistance (a) Each disbursement request shall be delivered to DNR. Each request must contain invoices or other evidence acceptable to DNR and DOA that Project Costs for which disbursement is requested have been incurred by the Municipality. (b) The SDWLP, through its agents, plans to make disbursements of Financial Assistance on a semimonthly basis upon approval of each disbursement request by DNR and DOA. Such approval by DNR and DOA may require adjustment and corrections to the disbursement request submitted by the Municipality. The Municipality shall be notified whenever such an adjustment or correction is made by DNR or DOA. (c) Disbursements made to the Municipality are subject to pre- and post-payment adjustments by DNR or DOA. (1) If the Financial Assistance is not yet fully disbursed, and SDWLP funds were previously disbursed for costs not eligible for SDWLP funding or not eligible under this FAA, the SDWLP shall make necessary adjustments to future disbursements. (2) If the Financial Assistance is fully disbursed, including disbursements for any costs not eligible for SDWLP funding or not eligible under this FAA, the Municipality agrees to repay to the SDWLP an amount equal to the non-eligible costs within 60 days of notification by DNR or DOA. (d) The SDWLP or its agent shall disburse Financial Assistance only to the Municipality's account by electronic transfer of funds. The Municipality hereby covenants that it shall take actions and provide information necessary to facilitate these transfers. The Municipality agrees to pay Project invoices in a timely manner. (e) All requests for disbursement must be submitted to DNR no later than December 31, 2021. Section 3.03. Remedies (a) If the Municipality: (1) or any authorized representative is not complying with federal or state laws, regulations, or requirements relating to the Project, and following due notice by DNR the Project is not brought into compliance within a reasonable period of time; or (2) is not complying with or is in violation of any covenant set forth in this FAA; or (3) is not in compliance with the Statute or the Regulations; then DNR may, until the Project is brought into compliance or the FAA non-compliance is cured to the satisfaction of DNR or DOA, impose one (1) or more of the following sanctions: 8 (i) Disbursements otherwise due the Municipality may be withheld. (ii) Project work may be suspended. (iii) DNR may request a court of appropriate jurisdiction to enter an injunction or afford other equitable or judicial relief as the court finds appropriate. (iv) Other administrative remedies may be pursued. (b) If the Municipality fails to observe or perform any covenant, condition, or agreement on its part under this FAA for a period of thirty (30) days after written notice is given to the Municipality by DNR, specifying the default and requesting that it be remedied, the SDWLP is provided remedies by law and this FAA. These remedies include, but are not limited to, the following rights: (1) Pursuant to s. 281.59(11)(b), Wis. Stats., DOA shall place on file a certified statement of all amounts due the SDWLP under this FAA. DOA may collect all amounts due the SDWLP by deducting those amounts from any State payments due the Municipality or adding a special charge to the amount of taxes apportioned to and levied upon the county in which the Municipality is located under s. 70.60, Wis. Stats. (2) In the case of a joint utility system, the SDWLP may bill the users of the Municipality's system directly. (3) The SDWLP may enforce any right or obligation under this FAA, including the right to seek specific performance or mandamus, whether such action is at law or in equity. Section 3.04. FAA Effective Date and FAA Term This FAA shall become effective upon its execution and delivery by the parties hereto, shall remain in effect for a period of 3 years from the date of Final Completion. 9 ARTICLE IV CONSTRUCTION OF THE PROJECT Section 4.01. Construction of the Project (a) The Municipality shall construct the Project, or cause it to be constructed, to Final Completion in accordance with the Application. The Municipality shall proceed with the construction of the Project in conformity with law and with all applicable requirements of governmental authorities having jurisdiction with respect thereto. (b) If a Lead Service Line, including both the public portion and the private portion of the line, cannot be replaced in its entirety at one time, the Municipality shall supply water filters to any affected homes to minimize any harmful effects; funding will not be disbursed until the replacement of the entire line is complete. Section 4.02. Completion of the Project (a) The Municipality agrees that it shall undertake and complete the Project for the purposes and in the manner set forth in this FAA and in accordance with all federal, state, and local laws, ordinances, and regulations applicable thereto. The Municipality shall, with all practical dispatch and in a sound and economical manner, complete or cause to be completed, the construction of the Project. The Municipality shall obtain all necessary approvals from any and all governmental agencies prior to construction which are requisite to the Final Completion of the Project. (b) The Municipality shall notify DNR of the Substantial Completion of the Project. At or prior to completion of the Project, the Municipality shall cause to be prepared for the Project documentation identifying the location of the removal of Lead Service Lines, the depth and location of all new service lines, and the material of the new service lines. (c) The Municipality shall take and institute such proceedings as shall be necessary to cause and require all contractors and material suppliers to complete their contracts diligently and in accordance with the terms of the contracts including, without limitation, the correcting of defective work. (d) Upon Final Completion of the Project, the Municipality shall complete and deliver to DNR the completed Contract Utilization of Disadvantaged Business Enterprises (DBE) form attached hereto as Exhibit B of this FAA, when applicable. Section 4.03. No Warranty Regarding Condition, Suitability, or Cost of Project Neither the SDWLP, DOA, nor DNR makes any warranty, either express or implied, as to the Project or its condition, or that it shall be suitable for the Municipality's purposes or needs, or that the Financial Assistance shall be sufficient to pay the costs of the Project. Review or approval of any engineering reports, facilities plans, plans and specifications, or other documents, or the inspection of Project construction by DNR does not relieve the Municipality of its responsibility to properly plan, design, build, and effectively operate and maintain the Project as required by laws, regulations, permits, and good management practices. DNR or its representatives are not responsible for increased costs resulting from defects in any plans and specifications or other Project documents. Nothing in this section prohibits a Municipality from requiring more assurances, guarantees, or indemnity or other contractual requirements from any party performing Project work. 10 ARTICLE V COVENANTS Section 5.01. Application of Financial Assistance The Municipality shall apply the proceeds of the Financial Assistance solely for Project Costs. Section 5.02. Operation and Maintenance After completion of the Project, the Municipality shall: (a) at all times operate the Water System or otherwise cause the Water System to be operated properly and in a sound and economical manner, including proper training of personnel; (b) maintain, preserve, and keep the Water System or cause the Water System to be maintained, preserved, and kept in good repair, working order, and condition; and (c) periodically make, or cause to be made, all necessary and proper repairs, replacements, and renewals so that at all times the operation of the Water System may be performed properly. The Municipality shall not, during the term of this FAA, without the approval of DNR, discontinue operation of or sell or otherwise dispose of the Water System, except for portions of the Water System sold or otherwise disposed of in the course of ordinary repair and replacement of parts. Section 5.03. Compliance with Law At all times during construction of the Project and operation of the Water System, the Municipality shall comply with all applicable federal, state, and local laws, ordinances, rules, regulations, permits, and approvals, outstanding FAA requirements, including, without limitation, the Statute, the Regulations, and the Water Diversion Permit (if any), and with this FAA. Section 5.04. Public Ownership The Municipality shall at all times retain ownership of the Water System to which the Service Lines funded through this FAA are attached. Section 5.05. Establishment of Project Accounts (a) The Municipality shall maintain a separate account that reflects the receipt and expenditure of all SDWLP funds for the Project. All Financial Assistance shall be credited promptly upon receipt thereof and shall be reimbursement for or expended only for Project Costs. The Municipality shall: (1) permit any authorized representative of DNR or DOA, or agents thereof, the right to review or audit all records relating to the Project or the Financial Assistance; (2) produce, or cause to be produced, all records relating to any work performed under the terms of this FAA for examination at such times as may be designated by any of them (3) permit extracts and copies of the Project records to be made by any of them; and (4) fulfill information requests by any of them. Section 5.06. Records The Municipality shall retain all files, books, documents, and records relating to construction of the Project for at least three years following the date of Final Completion of the Project, or for longer periods if necessary due to any appeal, dispute, or litigation. Information about the locations of the lines replaced and the material composition of those lines shall be made part of the Municipality’s permanent records. Section 5.07. Project Areas The Municipality shall permit representatives of DNR visual access to the Project and various related records at reasonable times and allow extracts and copies of Project records to be made by DNR representatives. 11 Section 5.08. Notice of Impaired System The Municipality shall promptly notify DNR and DOA in the case of: any material damage to or destruction of the Project or any part thereof; any actual or threatened proceedings for the purpose of taking or otherwise affecting by condemnation, eminent domain, or otherwise, all or a part of the Water System; any action, suit, or proceeding at law or in equity, by or before any governmental instrumentality or agency; or any other event that may impair the ability of the Municipality to construct the Project or operate the Water System. Section 5.09. Hold Harmless To extent permitted by law, the Municipality shall save, keep harmless, and defend DNR, DOA, and all their officers, employees, and agents, against any and all liability, claims, and costs of whatever kind and nature, for injury to or death of any person or persons, and for loss or damage to any property occurring in connection with or in any way incident to or arising out of the construction, occupancy, use, service, operation, or performance of work in connection with the Project, including acts or omissions of the Municipality's employees, agents, or representatives. Section 5.10. Nondiscrimination Covenant (a) In connection with the Project, the Municipality agrees to comply with fair employment practices pursuant to subchapter II of ch. 111, Wis. Stats. This provision shall include, but is not limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Municipality agrees to post in conspicuous places, available for employees and applicants for employment, notices setting forth the provision of the nondiscrimination clause. (b) The Municipality shall incorporate into all Project contracts which have yet to be executed the following provision: "In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant because of age, race, religion, color, handicap, sex, physical condition, developmental disability, or national origin. The contractor further agrees to comply with fair employment practices pursuant to subchapter II of ch. 111, Wis. Stats. This provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor further agrees to take affirmative action to ensure equal employment opportunities for persons with disabilities. The contractor agrees to post in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of the nondiscrimination clause." Section 5.11. Employees The Municipality or its employees or agents are not employees or agents of the DNR or DOA for any purpose, including worker's compensation. Section 5.12. Reimbursement Any payment of Financial Assistance to the Municipality in excess of the amount determined by final audit to be due the Municipality shall be reimbursed to DOA within 60 days after DNR or DOA provides a notice of overpayment. Section 5.13. Rebates The Municipality agrees to pay to the SDWLP any refunds, rebates, credits, or other amounts received for Project Costs that have already been funded by the SDWLP. Section 5.14. Maintenance of Legal Existence (a) Except as provided in par. (b), the Municipality shall maintain its legal existence and shall not dissolve or otherwise dispose of all or substantially all of its assets and shall not consolidate with or merge into another legal entity. 12 (b) A Municipality may consolidate with or merge into any other legal entity, dissolve or otherwise dispose of all of its assets or substantially all of its assets, transfer all or substantially all of its assets to another legal entity (and thereafter be released of all further obligation under this FAA) if: (1) the resulting, surviving, or transferee legal entity is a legal entity established and duly existing under the laws of Wisconsin; (2) such resulting, surviving, or transferee legal entity is eligible to receive financial assistance under the Statute; (3) such resulting, surviving, or transferee legal entity expressly assumes in writing all of the obligations of the Municipality contained in this FAA and any other documents the SDWLP deems reasonably necessary to protect its environmental interests and its investment in the Project; and (4) the SDWLP shall have consented in writing to such transaction, which consent may be withheld in the absolute discretion of the SDWLP. Section 5.15. American Iron and Steel The Municipality agrees to comply with the requirements for use of American Iron and Steel as mandated under EPA’s Drinking Water State Revolving Fund program. Section 5.16. Wage Rate Requirements The Municipality represents that it shall comply with Section 1450(e) of the Safe Drinking Water Act (42 USC 300j-9(e)), as applicable, which requires that all laborers and mechanics employed by contractors and subcontractors funded directly by or assisted in whole or in part with funding under this Loan shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor (DOL) in accordance with subchapter IV of chapter 31 of title 40, United States Code. Detail regarding applicability is provided in the Project Manager Summary (Exhibit C). 13 ARTICLE VI MISCELLANEOUS Section 6.01. Notices All notices, certificates, or other communications hereunder shall be sufficiently given, and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, return receipt requested to the addresses set forth below: (a) Department of Administration Office of Capital Finance Environmental Improvement Fund 101 East Wilson Street, 10th Floor Madison, WI 53702-0004 or PO Box 7864 Madison, WI 53707-7864 (b) Department of Natural Resources Bureau of Community Financial Assistance 101 South Webster Street, 2nd Floor Madison, WI 53702-0005 or PO Box 7921 Madison, WI 53707-7921 (d) City of Oshkosh 215 Church Avenue Oshkosh, WI 54903-1130 Any of the foregoing parties may designate any further or different addresses to which subsequent notices, certificates, or other communications shall be sent, by giving written notice to the others. Any notice herein shall be delivered simultaneously to DNR and DOA. Section 6.02. Binding Effect This FAA shall be for the benefit of, and shall be binding upon, the SDWLP and the Municipality and their respective successors and assigns. Section 6.03. Severability In the event any provision of this FAA shall be held illegal, invalid, or unenforceable by any court of competent jurisdiction, such holding shall not invalidate, render unenforceable, or otherwise affect any other provision hereof. Section 6.04. Execution in Counterparts This FAA may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 6.05. Applicable Law This FAA shall be governed by and construed in accordance with the laws of the State, including the Statute. Section 6.06. Further Assurances The Municipality shall, at the request of DNR and DOA, authorize, execute, acknowledge, and deliver such further resolutions, conveyances, transfers, assurances, financing statements, and other instruments as may be necessary or desirable for obtaining funding for the Project and better assuring, conveying, assigning, and confirming the rights, security interests, and agreements granted or intended to be granted by this FAA. Section 6.07. Termination This FAA may be terminated in whole or in part pursuant to one or more of the following: 14 (a) The SDWLP and the Municipality may enter into an agreement to terminate this FAA at any time. The termination agreement shall establish the effective date of termination of this FAA, the basis for settlement of termination costs, and the amount and date of payment of any sums due either party. (b) If the Municipality wishes to terminate all or any part of the Project work unilaterally for which Financial Assistance has been awarded, the Municipality shall promptly give written notice to DNR. If the SDWLP determines that there is a reasonable basis for the requested termination, the SDWLP may enter into a termination agreement, including provisions for FAA termination costs, effective with the date of cessation of the Project work by the Municipality. If the SDWLP determines that the Municipality has ceased work on the Project without reasonable basis, the SDWLP may unilaterally terminate Financial Assistance or rescind this FAA, or both. Section 6.08. Rescission The SDWLP may rescind this FAA prior to the first disbursement of any funds hereunder if it determines that: (a) there has been substantial non-performance of the Project work by the recipient without justification under the circumstances; (b) there is substantial evidence this FAA was obtained by fraud; (c) there is substantial evidence of gross abuse or corrupt practices in the administration of the Project; (d) the Municipality has failed to comply with the covenants contained in this FAA; or (e) any of the representations of the Municipality contained in this FAA were false in any material respect. 15 IN WITNESS WHEREOF, the SDWLP and the Municipality have caused this FAA to be executed and delivered, as of the date and year first written above. CITY OF OSHKOSH By:_____________________________________ Mark Rohloff City Manager Attest:___________________________________ Pamela R. Ubrig City Clerk STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION By: _________________________________ Authorized Officer STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES By:_________________________________ Authorized Officer A - 1 EXHIBIT A PROJECT BUDGET SHEET SUMMARY CITY OF OSHKOSH SDWLP Project No. 4874-13 Total Project Costs Costs NOT Eligible for LSL PF Total LSL Principal Forgiveness Amount Force Account 0 0 0 Engineering 0 0 0 Construction/Equipment 280,000 0 280,000 Miscellaneous Costs 0 0 0 TOTAL $280,000 $0 $280,000 B - 1 EXHIBIT B ENVIRONMENTAL IMPROVEMENT FUND CONTRACT UTILIZATION OF DISADVANTAGED BUSINESS ENTERPRISES (DBE) MANDATORY PROJECT CLOSEOUT DOCUMENT Note: This form is authorized by s. NR 162.14(4)(b)4, Wis. Adm. Code. Receipt of this completed form by the Department is mandatory prior to receiving a final disbursement. The information printed on this form is taken from the completed DBE Subcontractor Utilization Form (EPA Form 6100-4). Any changes or additions made to the list of prime contractors and DBE subcontractors during the construction must be reflected on this form at closeout. Personal information collected on this form will be used for program administration and must be made available to requesters as required by Wisconsin Open Records Law (s. 19.31 – 19.39, Wis. Stats.). Municipality Name: City of Oshkosh Project Number: 4874-13 Loan/Grant Amount: $280,000 Project Description: Private Lead Service Line Replacements Did the municipality satisfy the DBE requirements? X Yes No (If no, refer to Project Manager Summary Page of the FAA.) Construction/Equipment/Supplies Contracts Indicate DBE Type Type of Product or Service * Contract Estimate $ Actual Amount Paid to DBE Firm Municipality Completes at Project Closeout Prime: MBE WBE Other N/A Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Prime: MBE WBE Other N/A Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Prime: MBE WBE Other N/A Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Sub: MBE WBE Other Total MBE $_____________ Total WBE $ ____________ Total Other $ ____________ B - 2 Professional/Technical Services Contracts Indicate DBE Type Type of Product or Service * Contract Estimate $ Actual Amount Paid to DBE Firm Municipality Completes at Project Closeout Prime: MBE WBE Other N/A Sub: MBE WBE Other Sub: MBE WBE Other Prime: MBE WBE Other N/A Sub: MBE WBE Other Sub: MBE WBE Other Prime: MBE WBE Other N/A Sub: MBE WBE Other Sub: MBE WBE Other Total MBE $ ____________ Total WBE $ ____________ Total Other $ ____________ *Type of Product or Service examples: landscaping, trucking, supplies, equipment, paving, concrete, plumbing, electrical, excavating, testing, design, etc. Name of Person Completing This Form Email Address Phone Number Certification I certify that, to the best of my knowledge and belief, the information provided on this form is complete and correct. Name/Title of Municipal Official Signature Date Signed C - 1 EXHIBIT C PROJECT MANAGER SUMMARY CITY OF OSHKOSH SDWLP Project No. 4874-13 1. Project Description: The Municipality developed a prequalified list of plumbing contractors to facilitate private LSL replacements. Eligible properties include single-family homes, multi-family residences, pre-K through 12 schools, and licensed or certified infant/child daycare facilities. The Municipality participated in the original Private LSL Replacement Program in SFY 2017 and 2018. A Request for Qualifications (RFQ) was advertised for the purposes of developing a list of prequalified plumbers/contractors for that program and updated on April 1, 2021. Funding from this agreement is expected to facilitate the replacement of 160 private LSLs. Properties near watermain or street replacement projects are the Municipality’s main target, yet those outside of the target areas are invited to apply for reimbursement. Upon final inspection and approval, the Municipality will pay the property owner 50% of the total cost of the replacement, up to $1,500. Depending on the property owner’s household income, they may be eligible for additional assistance of 75% or 100% of the total cost of replacement. Eligible replacements consist of the replacement of the Service Line from the curb stop of a municipally- owned water main or service line to the meter, or other water utility service terminal. All private LSL replacements must result in complete removal of all lead components between the watermain and the connection point inside the building. If a Lead Service Line, including both the public portion and the private portion of the line, cannot be replaced in its entirety at one time, the water utility is required to provide the customer with point-of- use filtration during the time period between the public and private side replacements, and enough filters for three months of use following the private side LSL replacement. Filters should be models that have been tested and certified to NSF/ANSI 53 for the reduction of lead. Funding will not be disbursed until the replacement of the entire line is complete. 2. Ineligible Costs: No ineligible costs were identified in the review of this Project. If the Department identifies ineligible Project Costs as the Project progresses, the Department will notify the Municipality. In general, costs that are ineligible for the Private LSL Replacement Program include:  Private LSL replacements where the public side has not been replaced (partial replacements);  Premise plumbing, which includes anything downstream of the normal connection point inside the home;  The curb stop, or any other components of the utility side of the service line;  Costs for engineering or administration unless the recipient’s population is 3,300 or less. 3. DBE Good Faith Effort: The Municipality was a participant in the previous two-year Private LSL Replacement Program and developed their prequalified list at that time, meeting Disadvantaged Business Enterprise (DBE) solicitation requirements in the process. The Municipality also encouraged DBEs to participate in the RFQ updated on April 1, 2021. 4. Davis-Bacon Wage Rate Requirements: For projects where the homeowner contracts directly with a plumber or contractor from a prequalified list, Davis-Bacon and Related Acts requirements apply under the following conditions:  The property is owned in the name of a business;  The plumber/contractor is not a sole proprietor or a partnership where the owners perform all the work on the project; and  The cost of the replacement is greater than $2,000. C - 2 It is the municipality’s responsibility to verify property ownership or plumber/contractor employee status in order to determine if Davis-Bacon requirements apply. 5. Environmental Review Conditions: An Environmental Assessment was completed for the Project area and resulted in a Categorical Exclusion. Standard requirements and recommendations for erosion control and invasive species guidance were included in the approval. In addition, Environmental Assessments for properties outside of scheduled watermain or street replacement are being done individually. The conditions coming from those assessments are sent via email. 6. Final Disbursement Submittal Date: The final date to submit a Request for Disbursement (form 8700- 366) under this FAA is Friday, December 31, 2021. This is the submittal deadline for disbursements that will be made on January 12, 2022. We strongly encourage all recipients to submit their final Request for Disbursement by Friday, December 10, 2021 in order to allow time if any questions arise on that disbursement request or any adjustments need to be made. No Requests for Disbursement will be accepted after December 31, 2021. If a Request for Disbursement for costs incurred during 2021 is not submitted by the deadline, those costs could be requested under a new award if one is made for the following year.