Or. Admin. Code § 340-054-0060 - Clean Water State Revolving Fund Loans to Public Agency Borrower: Loan Agreement and Conditions
DEQ will include conditions in a loan agreement that apply to the type of project being financed, including, but not limited to, the following:
(1) Timely use of loan
funding.
(a) DEQ may cancel a loan agreement
if a public agency borrower fails to begin using loan proceeds within two years
after signing a loan agreement.
(b)
Public agency borrowers that do not begin using loan proceeds within two years
after signing a loan agreement will have a choice of canceling the loan and
reapplying for DEQ funding or paying holding costs to DEQ.
(A) Holding costs are, on an annual basis,
the estimated amount of the loan interest payable to DEQ, less the amount of
the interest DEQ earned from the Treasurer's investment of funds for DEQ's
account. DEQ will itemize holding costs on a semi-annual invoice DEQ sends to
the public agency borrower. The public agency borrower must pay these costs
within 30 days after DEQ sends the invoice.
(B) A public agency borrower may apply for a
one-time one year extension to begin using loan proceeds.
(2) Accounting. A public agency
borrower must maintain all CWSRF project accounts as separate accounts and must
use accounting, audit and fiscal procedures that conform to Generally Accepted
Governmental Accounting Standards and the requirements of the Governmental
Accounting Standards Board.
(3)
Records retention. A public agency borrower must retain project files and
records for six years after project performance affirmative certification or
project completion as DEQ determines or such longer period as applicable state
or federal law requires. A borrower must also retain financial files and
records for three years after the loan is repaid in full.
(4) Wage requirements.
(a) A public agency borrower for constructing
a treatment works project must comply with all provisions of the Davis-Bacon
Act, as amended,
40
U.S.C. §§
3141 to
3144
and
3146,
as detailed in section 513 of the Clean Water Act. Wage rates must be based on
the wage requirements of the Davis Bacon Act or the prevailing wage rate
requirements for public works projects under ORS
279C.800 to
279C.870 and OAR
839-025-0000 to
839-025-0540, whichever is
higher.
(b) A public agency
borrower for a project not specified in subsection (a) of this section of the
rule must comply with the prevailing wage rate requirements under ORS
279C.800 to
279C.870 and OAR
839-025-0000 to
839-025-0540.
(5) Construction materials. A
public agency borrower for a treatments works construction project must ensure
that all of the iron and steel products used in the project are produced in the
United States as required by section 608 of the Clean Water Act, also known as
the American Iron and Steel Provision.
(6) Debarment and suspension. A public agency
borrower must comply with Subpart C of 2 C.F.R part 180, Responsibilities of
Participants Regarding Transactions Doing Business with Other Persons and
Subpart C of 2 C.F.R part 1532, Responsibilities of Participants Regarding
Transactions.
(7) Engineering
documents. If a public agency borrower uses CWSRF financing to construct a
wastewater facility subject to OAR 340-052, it must submit to DEQ plans and
specifications, operation and maintenance manuals, inspection and certification
of proper construction, and any other applicable documentation OAR chapter 340,
division 052 and OAR 340-054-0022 require.
(8) Inspections and progress reports.
(a) A public agency borrower must have a
qualified inspector under the direction of a registered civil, mechanical or
electrical engineer, as appropriate, conduct on-going inspections during the
construction phase of a wastewater facility subject to OAR 340-052 to ensure
the project complies with approved plans and specifications. DEQ or its
representative may enter property the public agency borrower owns or controls
to conduct interim inspections. DEQ may require progress reports sufficient to
determine compliance with approved plans and specifications and with other loan
agreement provisions.
(b) DEQ may
request review and analysis of construction plans from relevant agencies or
offices to ensure the project plans not subject to department review under OAR
chapter 340, division 052 support the project's successful implementation and
completion. A public agency borrower must allow inspections by appropriately
qualified persons during project construction or implementation to ensure the
project as constructed conforms to project plans and other provisions of the
loan agreement.
(9) Loan
amendments.
(a) DEQ will not require a loan
amendment for changes in project work that are consistent with project
objectives and within the loan scope and funding level.
(b) DEQ will execute a loan amendment to a
public agency borrower if:
(A) DEQ awards a
public agency borrower an increase in the original approved loan amount at any
time during the project;
(B) The
public agency borrower requests a decrease in the original loan amount at any
time during the project or completes the project and does not request
disbursement of all loan proceeds; or
(C) DEQ determines a public agency borrower
must meet additional federal or state requirements for CWSRF
financing.
(10) Change orders. DEQ may approve or reject
a change order based on the loan eligibility of the project modification and on
engineering value under OAR
340-052-0015. A public agency
borrower must submit a change order to DEQ for engineering and financial
review:
(a) When any change order is
executed, and
(b) Before executing
any change order that exceeds $100,000 or will alter project
performance.
(11)
Project performance certification for a wastewater facility. A public agency
borrower must submit to DEQ, within a timeframe DEQ specifies, project
performance documents to verify whether the facility meets performance and
operational requirements and specifications which the project was planned,
designed and built to achieve. The documents may include, but are not limited
to, construction certification, performance evaluation report or performance
certification.
(12) Eligible
construction costs. DEQ will only disburse loan funds for construction costs
for work that complies with plans, specifications, change orders and addenda
DEQ reviewed or approved.
(13)
Adjustments. DEQ may at any time review and audit requests for payment and make
adjustments for eligibility, math errors, items not built or bought,
unacceptable construction or other discrepancies.
(14) Contract and bid documents. A public
agency borrower must submit a copy of the awarded contract and bid documents to
DEQ, including a tabulation of all bids received.
(15) Architectural and engineering services.
Contractors for program management, construction management, feasibility
studies, preliminary engineering design, design, engineering, surveying,
mapping, or architectural related services must be selected as provided in ORS
279C.110 and OAR chapter 137,
division 048; Federal loan recipients must also follow the federal requirements
for selection of architectural and engineering services as provided in 40
U.S.C. Chapter 11. Federally recognized Indian tribal governments must follow
the federal requirements for selection of architectural and engineering
services as provided in 40 U.S.C. Chapter 11 or an equivalent tribal government
requirement.
(16) Audit.
(a) If DEQ requests it, a public agency
borrower must submit audited financial statements to DEQ each year until the
loan is repaid.
(b) If a public
agency borrower expends $750,000 or more in federal funds, from all sources in
a fiscal year the public agency borrower must have a single organization-wide
audit conducted under the provisions of 2 C.F.R. Subtitle B, with guidance at 2
C.F.R. part 200 . The public agency borrower must submit copies of all audits
to DEQ within 30 days of completion. If a public agency borrower expends less
than $750,000 in a fiscal year the public agency borrower is exempt from
federal audit requirements for that year. Records must be available to DEQ, the
Oregon Secretary of State's Office, the federal government and their duly
authorized representatives for the purpose of making audits, examinations and
copies.
(17) Default
remedies. A loan agreement must provide adequate remedies for DEQ to enforce
the agreement's terms. Upon default by a public agency borrower, DEQ may
proceed with one or more of the following:
(a)
Pursuing any remedy available to it against the public agency
borrower.
(b) Appointing a receiver
at the public agency borrower's expense to operate the facility that generates
the pledged revenues.
(c) Setting
and collecting utility rates and charges pledged as security for the
loan.
(d) Withholding any amounts
otherwise due to the public agency borrower from the State of Oregon and
directing such funds be applied to the debt service and fees due on the CWSRF
loan. If DEQ finds the loan to the public agency borrower is otherwise
adequately secured, DEQ may waive this right in the loan agreement or other
loan documentation.
(e) Declaring
all or any part of the indebtedness immediately due and payable.
(18) Release. A public agency
borrower must release and discharge DEQ, its officers, agents and employees
from all liabilities, obligations and claims occurring from project work or
under the loan, subject only to exceptions previously agreed upon in a written
contract between DEQ and the public agency borrower.
(19) Effect of document approval or
certification.
(a) DEQ's review and approval
of facilities plans, design drawings and specifications, or any other documents
does not relieve a public agency borrower of responsibility to properly plan,
design, build and effectively operate and maintain a project as required by
law, regulations, permits, and good management practices.
(b) DEQ may not be held responsible for:
(A) Any project costs or any losses or
damages resulting from defects in plans, design drawings and specifications, or
other sub-agreement documents; or
(B) Verifying cost-effectiveness, cost
comparisons or adherence to state procurement regulations.
(20) Reservation of rights.
(a) A public agency borrower may require such
assurances, guarantees, indemnity or other contractual requirements as it deems
necessary or prudent from any party performing project work.
(b) This rule does not affect DEQ's right to
take remedial action, including, but not limited to, administrative enforcement
action and actions for breach of contract against a public agency borrower that
fails to carry out its obligations under OAR chapter 340.
(21) Other provisions and documentation. DEQ
may include other provisions in a CWSRF loan agreement necessary to meet the
Clean Water Act and ORS
468.423 to
468.440. DEQ may require
documentation including, but not limited to, a legal counsel opinion that the
loan agreement is enforceable.
Notes
Statutory/Other Authority: ORS 468.020 & 468.440
Statutes/Other Implemented: ORS 468.423 - 468.440
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