N.J. Admin. Code § 7:22-4.17 - Loan conditions

Current through Register Vol. 54, No. 7, April 4, 2022

(a) The following requirements, in addition to 7:22-4.18 through 4.30, as well as such statutes, rules, permits, terms and conditions which may be applicable to particular loans, are conditions to each Trust loan, and conditions to each disbursement under a Trust loan agreement:
1. Local government units shall comply with the Local Public Contracts Law (40A:11-1 et seq.) or other applicable procurement method authorized under State law;
2. The recipient shall certify that it is, and shall assure that its contractors and subcontractors are, maintaining their financial records in accordance with generally accepted accounting principles and auditing standards for governmental institutions. The recipient shall comply with the requirements of the Single Audit Act of 1984 ( 31 U.S.C. §§ 7501- 7507 ) and Federal OMB Circular A-133, both incorporated herein by reference, and State OMB Circular 04-04-OMB, incorporated herein by reference, as amended and supplemented. Copies of these documents may be obtained from the Department;
3. Local government units shall comply with the Minimum Standards of Conduct for Officers, Employees, Agents and Members of Authorities Participating in State Financial Assistance Programs for Environmental Infrastructure Facilities (N.J.A.C. 7:22-8 ) and the Local Government Ethics Law ( P.L. 1991, c.29; 40A:9-22 );
4. For wastewater treatment facilities, the recipient shall comply with the requirements of N.J.A.C. 7:14-2, Construction of Wastewater Treatment Facilities, and the provisions of the NJPDES rules at N.J.A.C. 7:14A. For water supply facilities, the recipient shall comply with N.J.A.C. 7:10-11, Standards for the Construction of Public Community Water Systems, or N.J.A.C. 7:10-12, Standards for the Construction of Public Noncommunity Water Systems and Nonpublic Water Systems, as applicable. Water supply facilities shall not conflict with the recommendations of the New Jersey Statewide Water Supply Plan.
5.

(Reserved)

6. For wastewater treatment facilities, the recipient shall establish an effective regulatory program pursuant to 58:10A-6 and enforce pretreatment standards which comply with 40 CFR Part 403;
7. The recipient shall comply with all applicable requirements of Federal, State and local laws;
8. The recipient shall pay the unallowable costs of the construction of the project (that is, facilities planning, design, building and related costs) and shall pay the allowable costs not covered by the Trust loan, or supplemental Trust loan, if any;
9. The Trust loan agreement or any amendment thereto may include special conditions necessary to assure accomplishment of the project objectives or Trust requirements. The recipient shall comply with any special conditions which the Trust requires in the Trust loan agreement or any amendment thereto;
10.

(Reserved)

11. Construction of the project, including letting of contracts in connection therewith, shall conform to applicable requirements of Federal, State, and local laws, ordinances, rules and regulations and to contract specifications and requirements;
12. No Trust loan moneys shall be disbursed to a recipient who is in current default on any Trust loan. The Trust may, at its discretion, make a Trust loan disbursement where it determines that the recipient will repay the defaulted loan obligation and associated penalties. Nothing in this paragraph shall in any way limit any right or duty of the Trust to demand and collect at any time the total due under any such defaulted loan;
13.

(Reserved)

14. The Trust may assess penalties to late loan repayments as appropriate as specified in the Trust loan agreement;
15.

(Reserved)

16. Except for land acquisition and conservation and well sealing projects, the recipient shall certify to the Department that a final plan of operation, including an operations and maintenance manual, an emergency operating program, personnel training, an adequate budget consistent with the user charge system, operational reports, laboratory testing needs, and an operation and maintenance (including replacement) program for the complete environmental infrastructure facility has been developed for the project;
17. The recipient shall certify that it has not and shall not enter into any contract with nor has any subcontract been or shall be awarded to any person debarred, suspended or disqualified from Department contracting pursuant to N.J.A.C. 7:1D-2 for any services within the scope of project work;
18. The recipient shall certify that the project or phase of the project was initiated and completed in accordance with the time schedule specified in the Trust loan agreement;
19. The recipient shall certify that it and its contractors and subcontractors shall comply with all insurance requirements of the Trust loan agreement and certify, when appropriate, that the insurance is in full force and effect and that the premiums have been paid. The recipient shall include the State and its agencies, employees and officers as additional "named insureds" on any certificate of liability insurance (or other similar document evidencing liability insurance coverage) of the contractor. The recipient shall provide the Trust with such certificate of liability insurance (or other similar document evidencing liability insurance coverage) prior to the issuance of the notice to proceed with the project. Such certificate shall be maintained in full force and represent a continuing obligation to include the State and its agencies, employees and officers as additional "named insureds" through the completion of construction. The recipient shall not alter or cancel such certificate without prior notification to the Trust, in writing, 15 days in advance of any alteration or cancellation. In addition, when required, the recipient shall acquire or have the contractor acquire, as appropriate, flood insurance made available under the National Flood Insurance Act of 1968 ( P.L. 90-448 ), as amended. Flood insurance coverage must begin with the period of building and continue for the entire period during which the environmental infrastructure facility operates. The insurance must be in an amount at least equal to the allowable improvements or the maximum limit of coverage made available to the recipient under the National Flood Insurance Act, whichever is less. The recipient shall comply with each requirement of this subsection prior to the release of the initial Trust loan disbursement for building the project;
20. The recipient shall certify that it and its contractors and subcontractors shall comply with the discrimination and affirmative action provisions of 10:2-1 through 10:2-4, the New Jersey Law Against Discrimination (10:5-1 et seq.), and the rules and regulations promulgated pursuant thereto, including but not limited to N.J.A.C. 17:27;
21. The recipient shall certify that it has established an affirmative action program for the hiring of minority workers in the performance of any construction contract for that project consistent with the provisions of the New Jersey Law Against Discrimination (10:5-1 et seq.);
22. The recipient shall designate an officer or employee, who may be an existing officer or employee, to serve as its project compliance officer, pursuant to 7:22-9.11;
23. The recipient shall certify that it shall comply with the Rules and Regulations for Awarding Contracts for State Assisted Projects to Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (N.J.A.C. 7:22-9 );
24. The recipient shall make a good faith effort to award not less than 10 percent of the total amount of all contracts for building, materials or services (including planning, design and building related activities) for a project to small business concerns owned and controlled by socially and economically disadvantaged individuals as defined in the Small Business Act ( 15 U.S.C. 637(a) and 637(d) ), and any regulations promulgated pursuant thereto. Where a local government unit has Minority Business Enterprise/Women's Business Enterprise (MBE/WBE) goals which exceed 10 percent of the total amount of all contracts, the local government unit's goals will take precedence over State goals;
25. For environmental infrastructure facilities, the recipient shall pay not less than the prevailing wage rate to workers employed in the performance of any contract for the project, in accordance with the rate determined by the Commissioner of the New Jersey Department of Labor pursuant to 34:11-56.2 5 et seq.;
26. After the award of a contract and prior to the start of work, a preconstruction meeting shall be scheduled by the recipient. The recipient, the responsible engineer, the environmental and construction inspectors, the contractor and one or more representatives of the Trust must be present at the preconstruction meeting;
27. Prior to starting construction, the recipient shall provide photographs or videotapes to the Trust in conformance with the provisions of 7:22-10.11(q);
28. The recipient shall provide inspection coverage of the construction work using qualified personnel on a routine basis as follows:
i. A qualified inspector shall be provided at each construction site. There are times when a qualified individual can cover more than one site; however, this must be governed by on-site conditions which determine rate of progress;
ii. Inspection coverage at a treatment plant site shall be on a full-time basis at all times;
iii. For pipeline construction (including the construction of transmission facilities), full-time construction inspections shall be provided during the following operations:
(1) Preparation of trench bottom for placement of bedding and to determine if bottom will support pipe or if additional support must be provided;
(2) Placing of pipe bedding material where required and in the quantity required in conformance with the approved specifications;
(3) Alignment and joining of pipe sections;
(4) Bedding, placement, and alignment of manholes and other appurtenances; and
(5) Placement and compaction of trench backfill material;
iv. Inspection coverage at pump station and metering station sites shall be sufficient to ensure that the work satisfies specifications. The coverage shall include, but not be limited to, the following:
(1) Excavation and spoils disposal;
(2) Checking of all elevations including footings, piles, slabs and equipment pads (this function may be performed by the responsible engineer);
(3) Installation of all concrete reinforcing bars;
(4) Installation of all electrical conduit, plumbing and piping; and
(5) Installation of all equipment;
v. All concrete shall be checked for truck mix time and temperature prior to placing in forms. Periodic slump tests and test cylinders, per good construction practice, shall be taken. Cold weather and hot weather precautions shall be taken as appropriate. Any additions to the specified concrete mix must be approved by the responsible engineer; and
vi. During the construction period, the construction inspector shall keep a job diary in which he will keep a record of progress, problems encountered, and corrective action taken to rectify any problems. The job diary shall be made available to the Trust upon request;
29. The recipient shall provide environmental inspection coverage and ensure completion of environmental restoration in conformance with the provisions of 7:22-10.12;
30. During the construction phase of the projects, job meetings shall be held at frequent intervals to review construction and restoration progress and to resolve difficulties which might delay completion of the work. Attendees at these meetings shall include the recipient, the responsible engineer, the recipient's inspectors (construction and environmental), the contractor, and one or more representatives of the Trust;
31. The recipient shall provide notification, information and conduct visual inspections and testing of projects, as well as disinfection of water system components, as follows:
i. The recipient shall notify the Trust one week prior to all final visual inspections, disinfection, and tests of all sewer lines, force mains, transmission facilities, mechanical equipment and treatment plant operation at which time the Department shall notify the recipient if it is necessary that a Trust representative be present at the visual inspection or testing activity, a determination that shall be based on the specific project circumstances such as project location, design, construction methods and other factors;
ii. Copies of all final visual inspections and test reports shall be forwarded to the Trust;
iii. Copies of record drawings shall be forwarded to the Trust prior to the start of visual inspection and testing of all pipeline projects; and
iv. For wastewater treatment facilities, all visual inspections and testing shall be done in accordance with the following:
(1) All manholes and pipelines shall be completed and flushed clean prior to the visual inspection. This inspection must be performed with a representative of the recipient and/or the responsible engineer, the contractor and, if determined necessary under (a)31i above, a representative from the Trust present. All discrepancies must be noted and a reinspection performed to verify the corrective action;
(2) All manholes and pipelines shall be visually inspected and accepted prior to testing;
(3) Upon acceptance of the visual inspection by the Trust, the necessary infiltration, exfiltration, or low pressure air test and deflection tests when applicable shall be performed by the contractor. The test must be witnessed by the recipient and/or the responsible engineer (or representative), the contractor, and, if determined necessary under (a)31i above, a representative from the Trust. Upon completion of the test, a copy of the test results must be forwarded to the Trust;
(4) Infiltration tests of gravity lines shall be limited to 2000 linear feet per test;
(5) Force mains shall be tested to two times the maximum operating pressure, but not greater than the pipe pressure rating, whichever is less. The length of pipe tested during a force main pressure test is not restricted; however, it is recommended that it be limited for ease in locating leaks if present;
(6) Testing of all mechanical equipment at treatment plants and pump stations may be witnessed by a representative of the Trust; and
(7) If required, actual flow tests may be conducted in accordance with parameters established by the Trust and performed in the presence of a representative of the Trust; and
v. All disinfection of water system components shall be done in accordance with the Standards for the Construction of Public Community Water Systems at 7:10-11.6(d) and 11.10(e)4 and the Standards for the Construction of Public Noncommunity Water Systems and Nonpublic Water Systems at 7:10-12.11, as applicable.
vi. All testing of water supply facilities shall be done in accordance with the American Water Works Association (AWWA) standards for testing included in ANSI/AWWA-C600 and C605, incorporated herein by reference as amended and/or supplemented, or as otherwise approved by the Department. AWWA standards may be obtained from the AWWA, 6666 West Quincy Avenue, Denver, Colorado 80235.
32. The recipient shall forward a letter to the Trust upon completion of all construction and restoration of each contract of a project, stating that the project (or contract) is ready for final inspection. No final inspection will be scheduled until formal notification is received. The final inspection will be a joint inspection with the recipient and/or the responsible engineer, the recipient's inspector(s), the contractor, and one or more representatives of the Trust in attendance.
33. For land acquisition and conservation projects, the recipient shall also comply with the following:
i. The recipient, or the local government unit to which a parcel is transferred in conformance with (a)33vi below, shall perpetually maintain a fee simple interest in the parcel(s) that excludes future sale considerations or an interest stated in the form of a right, restriction, easement, covenant or condition in any deed, will, or other instrument executed by, or on behalf of the owner of the parcel(s) and the local government unit that does not allow any of the following:
(1) Construction or placing of buildings, roads, signs, billboards or other advertising or other structures in, on or above the ground (except for the project sign required by 7:22-4.27(b) or as needed to address public health or safety issues);
(2) Dumping or placing of soil or other substance or material as landfill, or dumping or placing trash, waste or unsightly or offensive materials;
(3) Removal or destruction of trees, shrubs, or other vegetation (except as needed to address public health or safety issues);
(4) Excavation, dredging, or removal of loam, peat, gravel, soil, rock or other mineral substance vegetation (except as needed to address public health or safety issues);
(5) Surface use except for purposes permitting the land or water area to remain predominantly in its natural condition, such as hiking trails for non-motorized vehicles;
(6) Activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or fish and wildlife habitat preservation; or
(7) Other acts or uses detrimental to the retention of land or water areas for conservation purposes.
ii. The recipient shall include any parcels acquired pursuant to this subchapter in its Recreation and Open Space Inventory submitted to Green Acres pursuant to 7:36-6.4(a)3 when and if the recipient applies for Green Acres funding under N.J.A.C. 7:36.
iii. The recipient shall provide evidence to the Department that a properly executed real estate deed has been recorded with the clerk of the county in which the parcel is located. A conservation restriction shall also be recorded and referenced in the real estate deed which, at a minimum, prohibits the activities identified in (a)33i above in perpetuity.
iv. The recipient shall submit a final remediation document issued pursuant to N.J.A.C. 7:26C-6, if a preliminary assessment report or site assessment prepared under the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, identifies contamination at or migrating from the parcel.
v. The recipient shall submit a site survey signed and sealed by a land surveyor licensed to practice in the State of New Jersey that appropriately identifies the parcel or portion of the parcel financed pursuant to this subchapter.
vi. The recipient shall only transfer or convey its interest in the parcel(s) upon receipt of prior written approval by the Trust. The Trust will only approve transfer of fee simple ownership in the parcel where the transfer of title is to another local government unit.
34. For water main extensions, the recipient shall maintain for the term of the Trust loan, or execute an agreement with the appropriate local government unit in which the project is located requiring the local government unit to maintain for the term of the Trust loan, mandatory connection ordinances and mandatory well sealing ordinances as required under 7:22-4.11(d)23.
(b) The recipient shall certify that it is in compliance with all other requirements and conditions of the Trust loan agreement.
(c) The Trust may impose such other conditions as may be necessary and appropriate to implement the laws of the State and effectuate the purpose and intent of the Trust Act.
(d) Neither the State of New Jersey nor the Trust will be a party to any contracts and subcontracts awarded pursuant to this subchapter. All such contracts and subcontracts shall include the following statement:

"This contract or subcontract is expected to be funded in part with funds from the New Jersey Department of Environmental Protection and the New Jersey Infrastructure Bank. Neither the State of New Jersey, the New Jersey Infrastructure Bank nor any of their departments, agencies or employees is, or will be, a party to this contract or subcontract or any lower tier contract or subcontract. This contract or subcontract is subject to the provisions of NJ.A.C. 7:22-3, 4, 5, 9 and 10."

(e) The recipient shall insert into the contracts for building the project EPA Form 5720-4(5-13), Labor Standards Provisions for Federally Assisted Construction Contracts.
(f) The recipient shall insert into the contracts, and shall ensure that their contractor(s) include within their subcontract(s), the following statement:

"In accordance with the provisions of 58:11B-26, N.J.A.C. 7:22-3.17(a)24 and 4.17(a)24, the contractor (subcontractor) shall comply with all of the provisions of N.J.A.C. 7:22-9."

(g) All applicable surety bonds required in connection with the advertisement and award of building contracts or subagreements must be written by a surety company listed on the Federal Treasury List (Department Circular 570-Surety Companies Acceptable on Federal Bonds), incorporated herein by reference. Copies of this document may be obtained from the Department.

Notes

N.J. Admin. Code § 7:22-4.17
Amended by 51 N.J.R. 81(a), effective 1/7/2019

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