HomeMy WebLinkAbout12. 18-282 MAY 22, 2018 18-282 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(CARRIED 7-0 LOST LAID OVER WITHDRAWN )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. 4874-11
INITIATED BY: DEPARTMENT OF PUBLIC WORKS
WHEREAS, the City of Oshkosh has applied to the Safe Drinking Water Loan
Program (the "SDWLP") for financial assistance to assist with replacing private private-
side lead water service laterals (identified as DNR No. 4874-11, the "Project"), 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$300,000 that it has identified as being eligible for SDWLP
funding;
NOW, THEREFORE, the City Manager and City Clerk are authorized by and on
behalf of the Municipality to execute the Principal Forgiven Financial Assistance
Agreement that contains the terms and conditions of the SDWLP award for the Project.
The Principal Forgiven Financial Assistance Agreement is incorporated herein by this
reference.
r,A
City
of
Oshkosh
MEMORANDUM
TO: Honorable Mayor and Members of the on Council
FROM: James Rabe, Director of Public Wor
DATE: May 17, 2018
RE: Approve Safe Drinking Water Loan Program Financial Assistance Agreement with the Wisconsin
Department of Natural Resources (WDNR) for Project No. 4874-11
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. The City has applied for and received a second PFL to assist residents in replacing private -side lead water
service laterals. The WDNR has revised the funding calculation, and this second PFL is in the amount of $300,000.
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.
RECOMMENDATIONS
I recommend approval of the Safe Drinking Water Loan Program Financial Assistance Agreement with the WDNR
for Project No. 4874-11.
Approved,
Mark ohloff
City Manager
JER/tlt
1:\ Engineering \Tracy Taylor\Memos to Mayor & Common Council\2018\LSLR SDWL FAA Agreement_5-17-18.docx
State of Wisconsin
Department of Natural Resources
Bureau of Community Financial Assistance
101 South Webster Street, 2nd Floor
PO Box 7921
Madison, Wisconsin 53707-7921
(608)266-7555
Financial Assistance Agreement
Safe Drinking Water Loan Program
Form 8700-214B rev 10/16
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
$300,000 With $300,000 PRINCIPAL FORGIVENESS
FINANCIAL ASSISTANCE AGREEMENT
Dated as of June 13, 2018
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 and an authorized
officer of 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. 4874-11
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
Section 1.01. Definitions
Section 1.02. Rules of Interpretation
ARTICLE II
REPRESENTATIONS
Section 2.01. Representations of the SDWLP
Section 2.02. Representations of the Municipality
ARTICLE III
FINANCIAL ASSISTANCE PROVISIONS
Section 3.01. Financial Assistance Clause
Section 3.02. Disbursement of Financial Assistance
Section 3.03. Remedies
Section 3.04. FAA Effective Date and FAA Term
ARTICLE IV
CONSTRUCTION OF THE PROJECT
Section 4.01. Construction of the Project
Section 4.02. Completion of the Project
Section 4.03. No Warranty Regarding Condition, Suitability, or Cost of Project
ARTICLE V
COVENANTS
Section 5.01.
Application of Financial Assistance
Section 5.02.
Operation and Maintenance
Section 5.03.
Compliance with Law
Section 5.04.
Public Ownership
Section 5.05.
Establishment of Project Accounts
Section 5.06.
Records
Section 5.07.
Project Areas
Section 5.08.
Notice of Impaired System
Section 5.09.
Hold Harmless
Section 5.10.
Nondiscrimination Covenant
Section 5.11.
Employees
Section 5.12.
Reimbursement
Section 5.13.
Rebates
Section 5.14.
Maintenance of Legal Existence
Section 5.15.
Use of American Iron and Steel
Section 5.16.
Wage Rate Requirements
ARTICLE VI
MISCELLANEOUS
Section 6.01. Notices
Section 6.02. Binding Effect
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Section 6.03.
Severability
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Section 6.04.
Execution in Counterparts
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Section 6.05.
Applicable Law
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Section 6.06.
Further Assurances
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Section 6.07.
Termination
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Section 6.08.
Rescission
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EXHIBITA PROJECT BUDGET SHEET SUMMARY
EXHIBIT B CONTRACT UTILIZATION OF DISADVANTAGED BUSINESS ENTERPRISES
EXHIBIT C PROJECT MANAGER SUMMARY PAGE
EXHIBIT D FEDERAL REQUIREMENTS COMPLIANCE CERTIFICATION
WITNESSETH:
WHEREAS, this is a FINANCIAL ASSISTANCE AGREEMENT (the "FAA"), dated June 13, 2018, 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 "Act"), and the City of Oshkosh, a municipality within
the meaning of the Act, 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 WaterAct Amendments of 1996 (the
"Safe Drinking WaterAct"), 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 Safe Drinking Water Act; and
WHEREAS, the State of Wisconsin has, pursuant to ss. 281.59 and 281.61, Wis. Stats., established the
SDWLP to be used in part for purposes of the Safe Drinking Water 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 Act; and
WHEREAS, the Municipality has submitted to DNR an application for financial assistance (the "Application")
for a project (the 'Project"), 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
assigns, do mutually promise, covenant, and agree as follows:
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 ss. 281.59 and 281.61, Wis. Stats., as amended.
"Application" means the written application of the Municipality dated June 28, 2017, for financial assistance
under the Act.
"Business Day" means any day on which State offices are open to conduct business.
"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 Safe Drinking Water Act.
"Final Completion" means all Service Lines to be financed under this FAA have been installed and DNR has
completed all necessary Project closeout procedures, including final 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, DOA, and the Municipality.
"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 "municipality" within the meaning of the Act, 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. 4874-11 by DNR, described in the Project
Manager Summary Page (Exhibit C).
"Project Costs" means the costs of the Project that are eligible for financial assistance from the SDWLP
under the Act, which are allowable costs under the Regulations or are costs for which DNR granted a
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.
"Project Milestone" means a minimum percentage of the Financial Assistance for which the Municipality
should have incurred costs on eligible activities by the end of a specific time period, established to ensure
that the Municipality will implement the Project in an expeditious manner.
"Regulations" means chs. NR 166, NR 809, and NR 811, Wis. Adm. Code, the regulations of DNR, ch. Adm.
35, Wis. Adm. Code, the regulations of DOA, adopted pursuant to and in furtherance of the Act, and ch. 145,
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Wis. Stats, as administered by the Department of Safety and Professional Services, as such may be
adopted or amended from time to time.
"Safe Drinking Water Act" means the federal Safe Drinking Water Act, 42 U.S.C. 300f to 300j-26.
"SDWLP" means State of Wisconsin Safe Drinking Water Loan Program, established pursuant to ss.281.59
and 281.61, Wis. Stats., and managed and administered by DNR and DOA.
"Service Line" means the water service piping from the curb stop of a municipally -owned main or service
line to the meter or other water utility service terminal on private residential property, pre k — 12 school or
licensed and/or certified daycare center.
"State" means the State of Wisconsin.
"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 36 months after execution of the FAA,
whichever occurs first.
"Use of American Iron and Steel" means the requirements contained in Public Law 115-141, the
Consolidated Appropriations Act, 2018.
"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 the 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.
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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 Act 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 ss. 281.59 and 281.61, Wis. Stats., the SDWLP is authorized to execute and
deliver the FAA, and to take actions and make determinations that are required of the SDWLP
under the terms and conditions of the 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) There is no action, suit, proceeding, or investigation at law or in equity before or by any court,
public board, or body pending or, to the knowledge of the SDWLP, threatened against or affecting
the SDWLP, or to the knowledge of the SDWLP, any basis therefore, 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.
(f) The Project is on the DNR funding list for the 2018 state fiscal year.
Section 2.02. Representations of the Municipality The Municipality represents, covenants, and warrants as
follows:
(a) The Municipality possesses the legal municipal form of a city under ch. 62, Wis. Stats. The
Municipality is located within the State and is a "municipality" within the meaning of the Act, 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 the FAA.
(b) The Municipality is 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 $300,000, 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 the FAA.
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(d) This FAA has been duly authorized, executed, and delivered and constitutes a legal, valid,
and binding obligation of the Municipality.
(e) 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, to the knowledge of the Municipality, threatened
against or affecting the Municipality, or to the knowledge of the Municipality any basis therefore:
(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.
(0 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 respective provisions thereof 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 the Financial Assistance
Agreement 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, 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.
Q) Each of the facilities constituting a part of the Project is eligible for financing under the Safe
Drinking Water 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
Page attached hereto as Exhibit C. The Municipality intends the Project to be and continue to be
an eligible project under the Act during 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 Safe Drinking Water Act. All proceeds of any borrowing of the Municipality
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that have 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.
(1) The Project is 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 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 with all conditions, requirements, and terms of
any financial assistance previously awarded through the federal construction grants program and
the Wisconsin Fund construction grants program, and the SDWLP.
(o) The Municipality has met all terms and conditions contained within, 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 all individuals or firms hired to perform work for the Project.
(q) The Municipality acknowledges that, under s. 281.59(11)(b), Wis. Stats., upon breach of
contract by the Municipality or upon failure of the Municipality to comply with s. 281.59, Wis.
Stats., the State may recover amounts due the SDWLP by deducting those amounts from any
State payments due the Municipality.
This means that the following State payments would have been subject to this deduction:
Transportation
2016 $3,192,255.00
2017 $3,185,129.54
State -shared
$9,680,182.83
$9,686,048.29
Total
$12,872,437.83
$12,871,177.83
The amount of State payments anticipated for this year, among others, and as changed or
modified from time to time, that are subject to this deduction are:
2018 $3,374,037.85 $9,678,406.51 $13,052,444.36
These are not the entire amounts of State aid distributed to the Municipality. Other State aid is
subject to intercept.
The Municipality acknowledges that s. 70.60, Wis. Stats., provides that the State may recover
amounts due the SDWLP by adding a special charge to the amount of taxes apportioned to and
levied upon the county in which the Municipality is located.
Further, in the event that the Municipality would become eligible to receive State payments,
s. 281.59(11)(b), Wis. Stats., provides that, upon breach of contract by the Municipality or upon
failure of the Municipality to comply with s. 281.59, Wis. Stats., the State may recover amounts
due the SDWLP by deducting those amounts from any State payments due the Municipality.
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(r) 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.
(s) 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.
(t) The Municipality acknowledges that it is eligible to receive Financial Assistance in the form of
a Loan of $300,000 with Principal Forgiveness of $300,000 for payment of Project Costs.
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ARTICLE III
FINANCIAL ASSISTANCE PROVISIONS
Section 3.01. Financial Assistance Clause Prior to disbursement, the Financial Assistance shall be held by
the SDWLP for the account of 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) Disbursement beyond ninety-five percent (95%) of the total FAA amount, unless otherwise
agreed to by DNR and DOA pursuant to a written request from the Municipality, may be withheld
until:
(1) the Municipality certifies in writing to DNR its compliance with applicable Federal
requirements;
(2) the Municipality furnishes reports, and provides data and such other information as
SDWLP may require prior to Project closeout; and
(3) DNR certifies in writing to DOA the Municipality's compliance with all applicable
requirements of this FAA.
Section 3.03. Remedies
(a) If the Municipality:
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(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 Act 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:
(i) Up to 20% of disbursements otherwise due the Municipality may be withheld.
(ii) Project work may be suspended.
(iii) A court of appropriate jurisdiction to enter an injunction or afford other
equitable orjudicial relief as the court finds appropriate may be requested by
DNR.
(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
add 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, and shall remain in effect for a period of 20 years beginning with the date of
this FAA.
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ARTICLE IV
CONSTRUCTION OF THE PROJECT
Section 4.01. Construction of the Project The Municipality shall construct the Project, or cause it to be
constructed, 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.
Section 4.02. Completion of the Prosect
(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 completion of the Project.
(b) The Municipality shall notify DNR if it fails to meet the following Project Milestones with
respect to incurring Project Costs for which the Municipality will request disbursement of the
Financial Assistance: Year 1: 20%; Year 2: 60%; Year 3: 100%. Year 1 commences as of the
date of this FAA — June 13, 2018.
(c) 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 as -built plans
or other 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.
(d) 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.
(e) Upon Final Completion of the Project, the Municipality shall:
(1) complete and deliver to DNR the completed Contract Utilization of Disadvantaged
Business Enterprises (DBE) form attached hereto as Exhibit B of this FAA;
(2) prepare and deliver to DNR the completed Federal Requirements Compliance
Certification attached hereto as Exhibit D of this FAA; and
(3) obtain all required permits and authorizations from appropriate authorities, if required,
for operation and use of the Project.
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
(a) After completion of the Project, the Municipality shall:
(1) 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;
(2) 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
(3) 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, approvals, and this FAA, including without limitation, the Act, the Regulations,
and the Water Diversion Permit (if any).
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 Proiect 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
or their authorized representatives;
(3) permit extracts and copies of the Project records to be made by them or their
authorized representatives; and
(4) fulfill information requests by them or their authorized representatives.
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. All other files and records relating to the
11
Project, including the locations and addresses of the replaced Service Lines, shall be retained so long as
this FAA remains in effect. The locations and addresses of the lead Service Lines replaced for this Project
shall be retained for 20 years.
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.
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 The Municipality shall save, keep harmless, and defend DNR, DOA, and all
their officers, employees, and agents, against any and all liability, claims, 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.
12
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.
(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 Act;
(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. Use of American Iron and Steel The Municipality agrees to comply with the requirements for
Use ofAmerican Iron and Steel contained in Public Law 115-141 for products used in the Project which are
made primarily of iron or steel.
Section 5.16. Wage Rate Requirements The Municipality represents that, when applicable, it shall comply
with Section 1450(e) of the Safe Drinking Water Act (41 USC 300j -9(e)), 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.
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 Act.
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 this 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.
IN WITNESS WHEREOF, the SDWLP and the Municipality have caused this FAA to be executed and
delivered, as of the date and year first above written.
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
15
EXHIBIT A
PROJECT BUDGET SHEET SUMMARY
CITY OF OSHKOSH
SDWLP Project No. 4874-11
A-1
Total Project Costs
Costs NOT
Eligible for LSL PF
Total LSL Principal
Forgiveness Amount
Force Account
10,000
0
10,000
Engineering
0
0
0
Construction/Equipment
290,000
0
290,000
Miscellaneous Costs
0
0
0
TOTAL
$300,000
$0
$300,000
A-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: 4874-11 Principal Forgiven Loan Amount: $300,000
Project Description: Private Lead Service Line Replacements
Did the municipality satisfy the DBE requirements? X Yes a 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 Com{4lete� at
Projobt Closebut
Prime:
a
MBE a WBE a Other a N/A
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Prime:
a
MBE a WBE a Other a N/A
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Prime:
a
MBE a WBE a Other a N/A
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Total MBE $
Total WBE $
Total Other $
B-1
Professional/Technical Services Contracts
Indicate DBE Type
Type of Product
or Service * Contract Estimate $
Actual Amount Paid to
DBE Firm
Municipality Completes at
Projobt Closebut
Prime:
L
MBE L WBE L Other L N/A
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Prime:
a
MBE a WBE a Other a N/A
Sub:
a
MBE a WBE a Other
Sub:
a
MBE a WBE a Other
Prime:
a
MBE a WBE a Other a N/A
Sub:
a
MBE a WBE a Other
Sub:
L
MBE L WBE L 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
B-2
EXHIBIT C
PROJECT MANAGER SUMMARY PAGE
CITY OF OSHKOSH
SDWLP Project No. 4874-11
1. Project Description: The Municipality anticipates replacing approximately 200 private residential lead
service lines (LSLs) through funding provided by this agreement. An ordinance has been passed
requiring property owners to replace the private portion of an LSL when there is a water main break, a
service leak, or within 180 days of when the public portion is replaced. Property owners within current
street reconstruction and water main projects have been notified of the program.
The Municipality has developed a prequalified plumbers list. Property owners will contract directly with a
prequalified plumber and then submit an application for reimbursement along with a payment receipt
from the plumber to the Municipality. The Municipality will pay the property owner 50% of the
replacement cost, up to $1,500.
2. Ineligible Costs: There were no ineligible costs identified in the review of this project. If the Department
identifies ineligible Project Costs as the Project progresses, the Department will notify the Municipality.
3. DBE Good Faith Effort: The DBE Good Faith Effort was met by including DBE language in the RFQ
advertisement. If any of the prequalified contractors utilize sub -contractors, they will also be required to
solicit for DBEs.
4. Davis -Bacon wage rate requirements: Davis -Bacon wage rate requirements apply to any property that is
under business ownership. For those properties, unless the total amount is less than $2,000 or the firm
contracted to do the replacement has no employees or the owner completes all work, and thus is not
subject to Davis -Bacon requirements, the Municipality shall comply with Section 1450(e) of the Safe
Drinking WaterAct (41 USC 300j -9(e)), 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.
For properties under non -business ownership where the homeowner contracts directly with a
contractor from the Municipality's prequalified list, Davis -Bacon wage rate requirements do not apply.
5. Environmental Review: Applied Ecological Services completed Threatened and Endangered Species
surveys for the entire project area. Strict erosion and runoff measures are required during construction to
avoid take of species protected under state and federal law. This project has the potential to impact the
Fox River and Lake Winnebago; therefore, erosion and runoff prevention measures must be
implemented to avoid take of Lake Sturgeon and Lake Chubsucker. Plastic or polypropylene netting
associated with erosion matting (also known as an erosion control blankets or erosion mesh netting)
without independent movement of strands can easily entrap snakes and other wildlife moving through
the area and cause dehydration, desiccation, and eventually mortality. Biodegradable jute/twine netting
with "leno" or "gauze" weave (contains strands that are able to move independently) has the least impact
on snakes. If erosion matting will be used for this project, use the following matting (or something
similar): American Excelsior "FibreNet" or "NetFree" products; East Coast Erosion biodegradable jute
products; Erosion Tech biodegradable jute products; ErosionControlBlanket.com biodegradable leno
C-1
weave products; North American Green S7513N, S1 5013N, SC150BN or C125BN; or Western Excelsior
"All Natural" products.
An archaeological/historical planning study was conducted by UW -Milwaukee Cultural Resources
Management. Consultation with the Wisconsin Historical Society may be required if project plans
change.
There are project areas that intersect floodplain zone areas; however, there are no recommended
actions.
If a project footprint is larger than one contiguous acre, a stormwater permit is required.
C-2
EXHIBIT D
FEDERAL REQUIREMENTS COMPLIANCE CERTIFICATION
[Prepare on Municipal Letterhead at Time of Project Completion and Closeout]
The undersigned officials of the City of Oshkosh (the "Municipality") hereby certify that, for all expenditures
made for construction of DNR Project No. 4874-11 (the "Project"), the Municipality certifies that after taking
into account any national or project -specific waivers approved by the U.S. Environmental Protection
Agency, DNR Project No. 4874-11 has met the requirements for the Use of American Iron and Steel
contained in Public Law 115-141, the Consolidated Appropriations Act, 2018.
The municipality further certifies that it has met the prevailing wage requirements of the Davis -Bacon Act,
as applicable.
The above certification is determined, after due and diligent investigation, to be true and accurate to the best
of my knowledge.
By:
[Name of Highest Elected Official or
Authorized Representative]
[Title]
Dated as of:
Attest: Dated as of:
[Name of Clerk or Secretary]
[Title]
D-1