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HomeMy WebLinkAboutPR 13569: NRCS/DEBRIS REMOVALinteroffice MEMORANDUM To: Mayor, City Council, and City Manager From: Mark T. Sokolow, City Attorney Date: May 19, 2006 Subject: P. R. No. 13569 - May 23, 2006 Council Meeting Attached is P. R. 13569 as it pertains to the Agreement or Agreements with the United States Department of Agriculture, Natural Resources Conservation Service and debris removal. MTS:ts Attachment cc: Director of Finance Director of Public Works z .pr13569 .memo P. R. No. 13569 O5/19/06 ts RESOLUTION NO. -- A RESOLUTION AS IT PERTAINS TO THE AGREEMENT OR AGREEMENTS WITH THE UNITED STATES DEPARTMENT OF AGRICULTURE, NATURAL RESOURCE CONSERVATION SERVICE FOR DEBRIS REMOVAL WHEREAS, pursuant to Resolution No. 06-170, the City Manager was given the authority to sign a contract or contracts with the United States Department of Agriculture, Natural Resources Conservation Service (NRCS) for funding debris removal. WHEREAS, the City Manager has signed the Agreement, attached hereto as Exhibit "A", as it pertains to debris removal reimbursement, wherein the estimated cost of all debris removal reimbursement is $200,000; and, WHEREAS, the City's requirement for matching funds is 75% thereof, or $50,000; and, WHEREAS, it is expected that the United States Department of Agriculture will also enter into another agreement with the City to reimburse the City up to 75% of the costs of debris removal, wherein the total thereof is an additional $605,542.18. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the Director of Finance is herein authorized to fund the City's matching portion of the $200,000 contract, attached hereto as Exhibit ~A", at $50,000. z,pr13569 Sectlo~ 3. That the City Manager is further authorized to sign such additional agreement with the United States Department of Agriculture for $605,552.18 in such form as is approved by the City Attorney, wherein the United States Department of Agriculture will reimburse the City 75% thereof. Section 4. That the City Manager will file a copy of any additional agreements that he signs with the United States Department of Agriculture with the City Secretary. Section 5. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of , A.D., 2006, at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers ' ; NOES: z.pr13569 MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTOP~NEY APPROVED FOR ADMINISTRATION: CITY MANAGER APPROVED AS TO THE AVAILABILITY OF FUNDS DIRECTOR OF FINANCE z,pr13569 EXHIBIT "A" STATE: TEXAS EWP: City of Port Arthur AGREEMENT NO.: 69-7442-6- UNITED STATES DEPARTMENT OF AGRICULTURE NATURAL RESOURCES CONSERVATION SERVICE PROJECT AGREEMENT THIS AGREEMENT, made this __ day of ,2006, by and between the City of Port Arthur, Jefferson County, Texas, called the Sponsor and Contracting Local Organization; and the Natural Resources Conservation Service, United States Department of Agriculture, called NRCS. WITNESSETH THAT: WHEREAS, under the provisions of Section 216 of Public Law 81-516, Emergency Watershed Protection Program, and Title IV of the Agricultural Credit Act of 1978, Public Law 95-334, NRCS is authorized to assist the Sponsor in relieving hazards created by natural disasters that cause a sudden impairment of a watershed, and WHEREAS, NRCS and the Sponsor agree to install emergency watershed protection measures to relieve hazards created by natural disasters that cause impairment of a watershed. NOW THEREFORE, in consideration of the premises and of the several promises to be faithfully performed by the parties hereto as set forth, the Sponsor and NRCS do hereby agree as follows: A. It is agreed that the following described works of improvement to be performed shall not exceed an estimated total cost of $200,000.00. Works of improvement shall consist of removal and disposal of vegetative and construction/demolition (C&D) debris determined to pose a safety or health risk from municipal easements and right-of ways within the City of Port Arthur. The debris removal and disposal qualifies under the expanded authority granted by the supplemental appropriation bill, Section 102. Work site is identified by the Damage Survey Report: PtArthur-01-06. The estimated cost of the repairs shall not exceed $200,000.00. B..The Sponsor will: 1. Provide 25% of the cost of completing the works of improvement described in A. This cost to the Sponsor is estimated to be $50,000.00. 2. The Sponsor shall be conducting this work as the local contracting organization. The Sponsor shall provide a primary contact point for NRCS consults and assign a Contracting Officer per NRCS procurement policy. Regarding contracting questions the Sponsor should consult with the NRCS contracting officer. For all other technical and programmatic questions, the lead engineer should be contacted. Following completion of work under a specific contract the NRCS and the Sponsor shall jointly certify completion and final acceptance. 3. Appoint a Contracting Officer and an authorized representative who shall have authority to act for the Contracting Officer, listing their duties, responsibilities, and authorities. Furnish such information in writing to the NRCS State Conservationist, Attention: Kathleen Pinckney, Contracting Officer, 101 S Main Street, Temple, Texas 76501. Contract for the works of improvement described in Section A. in accordance with 7 CFR 3016.36, applicable state requirements, and the Sponsor's procurement regulations. Prepare all contractual documents and perform all work in a manner to easily seqreqate NRCS cost-shared items from items of work the Sponsor performs in-kind contributions. 5. The Sponsor shall supply NRCS with a Quality Assurance Plan to provide inspection over the debris removal and disposal. This Plan will document critical elements that need to be supervised. These inspection duties will be carried out by Sponsor personnel or others as approved by the NRCS. 6. The Sponsor shall obtain any and all permits required for the debris removal and disposal. This shall include meeting the requirements of the TCEQ's Texas Pollution Discharge Elimination System program having federal regulatory authority. All contract activities must comply with local and state regulations that may apply. 7. Provide certification that real property rights have been obtained for installation of the works of improvement described in Section A. Certification will be provided on Form NRCS-ADS-78, Assurances Relating to Real Property Acquisition. An Attorney's opinion as to the adequacy of real.property rights is required. 8. Accept all financial and other responsibilities for excess costs resulting from their failure to obtain, or their delay in obtaining, adequate land and water rights, permits, and licenses needed for the works of improvement described in A. 9. The following individual is designated as the liaison between the sponsor and NRCS: John A. Comeaux, P.E. Director of Public Works P.O. Box 1089 Port Arthur, TX 77641-1089 Phone: 409-983-8189 City EIN# 74-6001885 10. Be responsible for all administrative expenses necessary to arrange for and carry out the works of improvement described in Section A. These administrative matters include but shall not be limited to facilities, clerical expenses, and legal counsel, including the fees of such attorney or attorneys deemed necessary by NRCS to resolve any legal matters. 11. Comply with the applicable requirements in Attachments A and B to this agreement and ensure that all contracts for debris removal and disposal as described in Section A. include the provisions contained in Attachments A and B to this agreement. 12. To ensure compliance with environmental and cultural resource laws the Sponsor must notify the NRCS of any changes or modifications in the planned works of improvement and of any discovery of cultural resources. The Sponsor shall provide copies of site maps to requesting Federal and State agencies for environmental or cultural review. 13. Ensure that requirements for a written release from the contractor of all claims against the Sponsor arising by virtue of the contract, other than claims in stated amounts as may be specifically excepted by the contractor, be incorporated into the terms of the debris removal and disposal contract and is a condition for final payment to the contractor. 14. Pay the contractor as provided in the contract(s). Submit billings for reimbursement of incurred costs to NRCS on Form SF-270, Request for Advance or Reimbursement. The request will be Page 2 of 5 supported by documentation that will permit NRCS to reasonable assure itself that such costs were necessary, adequately documented, and incurred for the NRCS cost-shared items of work described in Section A. 15. Receive payment under this agreement using electronic funds transfer (EFT) procedures in accordance with 31 CFR 208. EFT procedures will comply with USDA National Finance Center (NFC) requirements. 16. Dispose of all claims resulting from the contract; secure prior written concurrence of the NRCS State Conservationist if NRCS funds are involved. 17. Take reasonable and necessary actions to dispose of all contractual and administrative issues arising out of the contract awarded under this agreement. This includes, but is not limited to disputes, claims, protests of award, source evaluation, and litigation that may result from the project. Such actions will be at the expense of the Sponsor, including any legal expenses. The Sponsor will advise, consult with, and obtain prior written concurrence of NRCS on any litigation matters in which NRCS could have a financial interest. 18. To the extent of its legal authority, hold and save NRCS free from any and all claims or causes of action whatsoever resulting from the obligations undertaken by the Sponsor under this agreement or resulting from the work provided for in this agreement. 19. Take necessary legal action, including bringing suit, to collect from the contractor any monies due in connection with the contract, or upon request of NRCS, assign and transfer to NRCS any or all claims, demands, and causes of action of every kind whatsoever which the Contracting Local Organization has against the contractor or his or her sureties. 20. Arrange for and conduct final inspection of completed works of improvement with NRCS to determine whether all work has been performed in accordance with contractual requirements. Secure written concurrence of the State Conservationist before notifying the contractor of the acceptance of the job. 21. Upon completion and acceptance of all work and as provided by the terms of the contract, obtain a written release from the contractor of all claims against the Contracting Local Organization arising by virtue of the contract, other than claims in stated amounts as may be specifically excepted by the contractor. Upon acceptance of the work from the contractor(s), assume responsibility for operation and maintenance. 22. Retain all records dealing with the award and administration of the contract for 3 years from the date of the Contracting Local Organization's submission of the final request for reimbursement or until final audit findings have been resolved, whichever is longer. If any litigation is started before the expiration of the 3-year period, the records are to be retained until the litigation is resolved or the end of the 3-year period, whichever is longer. Make such records available to the Comptroller General of the United States or his or her duly authorized representative and accredited representatives of the Department of Agriculture or cognizant audit agency for the purpose of making audit, examination, excerpts, and transcriptions. C. NRCS will: 1. Provide 75% of the cost of construction of the works of improvement described in Section A. This cost to NRCS is estimated to be $150,000.00. 2. Provide authorized assistance such as estimates of contract costs, length of contract period, results of tests and studies as available, site investigations. Page 3 of 5 3. Consult with the Sponsor as needed in preparing the invitation for bids and awarding and administering the contract. 4. The following individual is designated as the Government Representative between the Sponsor and NRCS: Hank Wiederhold, Civil Engineer Nacogdoches Field Office 4609 Northwest Stallings Drive Nacogdoches, TX 75964-1449 Phone: (936) 564-5891 x114 5. Be available to conduct progress checks and participate in final inspections. 6. Make payment to the Sponsor covering the NRCS' share of the cost upon receipt and approval of Form SF-270. D. It is mutually agreed that: 1. This agreement is effective the date it is fully executed by all parties to this agreement. This agreement shall become null and void on June 1, 2006 if a contract has not been awarded. The completion date for work under this agreement shall be no later than August 18, 2006 unless otherwise approved by the Contracting Officer and a written amendment is executed. 2. The Sponsor shall provide a copy of the contract and or modifications, scope of work and detail of work limits for the project area to NRCS. The Quality Assurance Plan (QAP) shall be submitted to NRCS for review and approval. 4. The State Conservationist may make adjustments in the estimated cost to NRCS set forth in C.1. for completing the works of improvement. Such adjustments may increase or decrease the amount of estimated funds that are related to differences between such estimated cost and the amount of the awarded contract or to changes, differing site conditions, quantity variations, or other actions taken under the provisions of the contract. No adjustment is to change the cost sharing assistance to be provided by NRCS as set forth in C.1. nor reduce funds below the amount required to carry out NRCS' share of the contract. 5. This document may be revised as mutually agreed through a written amendment duly executed by authorized officials of all signatory parties to this agreement. 6. In the event of contractor default, any additional funds properly allocable as construction costs required to ensure completion of the job are to be provided in the same ratio as construction funds are contributed by the parties under the terms of this agreement. Any excess costs including interest resulting from a judgment collected from the defaulting contractor, or his or her surety, will be prorated between the Contracting Local Organization and NRCS in the same ratio as construction funds are contributed under the terms of the agreement. 7. Additional funds including interest properly allocable as construction costs as determined by NRCS, required as a result of a court judgment in favor of the contractor will be provided in the same ratio as construction funds are contributed under the terms of this agreement. NRCS will not be obligated to contribute funds under any agreement or commitment made by the Sponsor without prior concurrence of NRCS. Page 4 of 5 8. NRCS may terminate this agreement in whole or in part if it is determined by NRCS that the Sponsor has failed to comply with any of the conditions of this agreement. NRCS shall promptly notify the Sponsor in writing of the determination and reasons for the termination, together with the effective date. Payments made by or recoveries made by NRCS under this termination shall be in accord with the legal rights and liabilities of NRCS and the Sponsor. 9. This agreement may be temporarily suspended by NRCS if NRCS determines that corrective action by the Sponsor is needed to meet the provisions of this agreement. Further, NRCS may suspend this agreement when it is evident that a termination is pending. 10. NRCS, at its sole discretion, may refuse to cost share should the Sponsor, in administering the contract, elect to proceed without obtaining concurrence as set out in Section B of this agreement. 11. The furnishing of the administrative and technical services by NRCS is contingent upon the continuing availability of appropriations by the Congress from which payment may be made and shall not obligate NRCS if the Congress fails to so appropriate. 12. The program or activities conducted under this agreement will be in compliance the nondiscrimination provisions contained in the Titles VI and VII of the Civil Rights Act of 1964, as amended; the Civil Rights Restoration Act of 1987 (Public Law 100-259); and other nondiscrimination statutes: namely, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975. They will also be in accordance with regulations of the Secretary of Agriculture (7 CFR-15, Subparts A & B), which provide that no person in the United States shall on the grounds of race, color, national origin, age, sex, religion, marital status, or handicap be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Agriculture or any agency thereof. CITY OF PORT ARTHUR This action authorized at an official meeting of the City of Port Arthur, on the __ day of By:~.. ~,/ _ 2006, at the City of Port Arthur, Jefferson County, :TX. Title: /'~'~, ~/~. / J' (Signature) Date: (Title) UNITED STATES DEPARTMENT OF AGRICULTURE NATURAL RESOURCES CONSERVATION SERVICE By:. Title: State Conservationist Date: Page 5 of 5 U.S. Department of Agrlculmre NRCS-ADS-78 NaturalResources Conservation Service 5-B8 ASSURANCES RELATING TO REAL PROPERTY ACQUISITION A. PURPOSE -- This form is to be used by sponsor(s) to provide the assurances to the Natural Resources Conservation Service of the U.S. Department of Agriculture which is required in connection with the installation of project measures which involve Federal financial assistance furnished by the Natural Resources Conservation Service. B. PROJECT MEASURES COVERED -- Name of project Debris removal and disposal - Extended Authority Identity of improvement or development DSR: PtArthur-01-06 Location City of Port Arthur, Texas C. REAL PROPERTY ACQUISITION ASSURANCE -- This assurance is applicable if real proper~ interests were acquired for the installation of project measures, and/or if persons, businesses, or farm operations were displaced as a result of such installation; an dthis assurance was not previously provided for in the watershed, project measure, or other type of plan. If this assurance was not previously provided, the undersigned sponsor(s) hereby assures they have complied, to the extent practicable under State law, with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. 4601-4655), as implemented in 7 C.F.R. Part 21. Any exceptions taken from the real property acquisition requirements under the authority of 42 U.S.C. 4655 because of State law have been or is hereby furnished to the Natural Resources Conservation Service along with the opinion of the Chief Legal Officer of the State containing a full discussion of the facts and law furnished. D. ASSURANCE OF ADEQUACY OF REAL PROPERTY RIGHTS -- The undersigned sponsor(s) hereby assures that adequate real property rights and interests, water rights if applicable, permits and licenses required by Federal, State, and local law, ordinance or regulation, and related actions have been taken to obtain the legal fight to install, operate, maintain, and inspect the above-described project measures, except for structures or improvements that are to be removed, relocated, modified, or salvaged before and/or during the installation process. This assurance is given with the knowledge that sponsor(s) are responsible for any excess costs or other conse- quences in the event the real property fights are found to be inadequate during the installation process. Furthermore, this assurance is supported by an attorney's opinion attached hereto that certifies an examination of the real property instruments and files was made and they were found to provide adequate title, right, permission and authority for the purpose(s) for which the property was acquired. This form was elect tonically produced by National Production Services Staff If any of the real property rights or interests were obtained by condemnation (eminent domain) proceedings, sponsor(s) further assure and agree to prosecute the proceedings to a final concIusion and pay such damages as awarded by the court. ' ~ a ~ at ~ o~cia~ meeting Title: ~1 /~ ~ ~ ~ ~ ~yof , 19~ State of Attest: ~e) (Title) This action authorized (Name of Sponsor) at an officia! meeting By: on Title: dayof ,19 Date: at State of Attest: (Name) (Title) VENDOR CODE FORM 1. Action 12. Vendor Code (,SSN, Fed ID #) /3. Vendor Name {Field allows only 26 5. ~dmss Li~ 2 (Opaonal - ~eld a#o~ on~ 30 ¢h~acters) ~. V~n~r T~ (Require) 6. ~dress Line 3 {Ci~, S~te, Zip) 12. P~ Hold 15. Pr~ Pa~ 14. 1099 Vendor ] 14a. 1099 Vendor (Name/Address) CCR DATABASE u~.o~¥~'a~r~'m~. SHOULD [] SHOULD NOT Block 14a should always be NO. be registered in the CCR Database. Vendors doing business wit~ USDA under the terrr,.s of any cora-acts, basic agreements, basic o~defing agreements, o~ blanket purchase agreements are required to rec~ister, EFT IN FORMATION (Mandatory) Eiff~er fill I~ the benldng Information or staple · cancelled ch~ck In I~e /--~_O0:~7<~:~Y IChecking[~ Saving[] I]]/~?~)/'~Bankn°utingNumber c,w OF.O.T ^.THa. ~ TEXAS STATE BANK PORT ARTHUR. TX 77640-6450 - 1== A Bank for Texas~ $ ~: l, ~,L,c~O cio ~, ~,l: .' ~, r~oosro ?0 I. II' Ol, 8 SPECIAL. NOTES FOR INDIVIDUAL INPUTTING VENDOR RECORD: I~TTACHMENT A - SPECIAL PROVISIONS I. DRUG-FREE WORKPLACE CERTIFICATION H. CERTIFICATION REGARDING LOBBYING HI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS - PRIMARY COVERED TRANSACTIONS IV. CLEAN AIR AND WATER CERTIFICATION V. ASSURANCES AND COMPLIANCE VI. EXAMINATION OF RECORDS ATTACHMENT A - SPECIAL PROVISIONS The signatories (grantee, recipient sponsor, or cooperator) agrees to comply with the following special provisions which are hereby attached to this agreement. I. Drug-Free Workplace. By signing this agreement, the recipient is providing the certification set out below. If it is later determined that the recipient knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the NRCS, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. .Controlled substance means a controlled substance in Schedules I.through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); Conviction means a finding of (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes; Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacturing, distribution, dispensing, use, or possession of any controlled substance; Employee means the employee of a grantee directly engaged in the performance of work under a grant, including: (I) All direct charge employees; (ii) All indirect charge employees unless their impact or involvement is insignificant to the performance of the grant; and, (iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirements; consultants or independent contractors not on the grantees' payroll; or employees of subrecipients or subcontractors in covered workplaces). Certification: A. The grantee certifies that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an ongoing drug-free awareness program to inform employees about -- (1) The danger of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph 9a) that, as a condition of employment under the grant, the employee will - (1) Abide by the terms of the statement; and (2) Notifying the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such a conviction; (e) Notifying NRCS in writing, within ten calendar days after receiving notice under paragraph 9(d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted -- (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f). (h) Agencies shall keep the original of all disclosure reports in the official files of the agency. B. The recipient may provide a list of the site(s) for the performance of work done in colmection with a specific project or other agreement. II. Certification Regarding Lobbying (7 CFR 3018) (Applicable if this agreement exceeds $100,000) (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the recipient, to any person for influencing or attempting to influence an officer or employee of an agency, Member of Congress, and officer or employer of Congress, or a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress, in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The recipient shall require that the language of this certification be included in the award documents for all subawards at all tiers (incIuding subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, Title 3 I, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $I0,000 and not more than $100,000 for each such failure. III. Certification Regarding Debarment, Suspension, and Other Responsibility matters - Primary Covered Transactions, (7 CFR 3017) (I) The recipient certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; · (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal has one or more public transactions (Federal, State or local) terminated for cause or default. (2) Where the primary recipient is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this agreement. IV. Clean Air and Water Certification (Applicable if this agreement exceeds $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA, or is not otherwise exempt.) The recipient signatory to this agreement certifies as follows: (a) Any facility to be utilized in the performance of this proposed agreement is __, is not__~ listed on the Environmental Protection Agency List of Violating Facilities. (b) To promptly notify the State or Regional Conservationist prior to the signing of this agreement by NRCS, of the receipt of any communication from the Director, Office of Federal Activities, U. S. Environmental Protection Agency, indicating that any facility which he/she proposes to use for the performance of the agreement is under consideration to be listed on the Environmental Protection Agency List of Violating Facilities. (c) To include substantially this certification, including this subparagraph (c), in every nonexempt subagreement. Clean Air and Water Clause (Applicable only if the agreement exceeds $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA or the agreement is not otherwise exempt.) A. The recipient agrees as follows: (1) To comply with all the requirements of section 114 of the Clean Air Act as amended (42 U.S.C. 1857, et seq., as amended by Public Law 91-604) and section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et. sq., as amended by Public Law 92o500), respectively, relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder before the signing of this agreement by NRCS. (2) That no portion of the work required by this agreement will be performed in a facility listed on the Environmental Protection Agency List of Violating Facilities on the date when this agreement was signed by NRCS unless and until the EPA eliminates the name of such facility or facilities from such listing. (3) To use their best efforts to comply with clean air standards and clean water standards at the facilities in which the agreement is being performed. TABLE OF CONTENTS ATTACHMENT B - SPECIAL PROVISIONS 1. EQUAL OPPORTUNITY (SCS-AS-83) 11. EQUAL OPPORTUNITY (FEDERAL ASSISTED CONSTRUCTION) (SCS-AS-83) NOTICE TO CONTRACTING LOCAL ORGANIZATION OF REQUIREMENTS FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES IV. NOTICE TO PROSPECTIVE FEDERALLY ASSISTED CONSTRUCTION CONTRACTORS V. NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENTS FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES VI. CERTIFICATION OF NONSEGREGATED FACILITIES (SCS-AS-818) VII. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246)' 1 of 8 ATTACHMENT B - SPECIAL PROVISIONS CONSTRUCTION I. EQUAL OPPORTUNITY The Contracting Local Organization agrees to incorporate, or cause to be incorporated, into any contract for construction work, or modification thereof, as defined in the rules and regulations of the Secretary of Labor at 41 CFR, Chapter 60, which is paid for, in whole or in part, with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following Equal Opportunity (Federally Assisted Construction) clause: H. EQUAL OPPORTUNITY (FEDERALLY ASSISTED CONSTRUCTION) During the performance of this contract, the Contractor agrees as follows: 1. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that emplo3~ees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff determination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this Equal Opportunity (Federally Assisted Construction) clause. 2. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Contractor will send to each labor union or representative of workers, with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representative of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Contractor's noncompliance with the Equal Opportunity (Federally Assisted Construction) clause of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended, in whole or in part, and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as provided by law. 7. The Contractor will include this Equal Opportunity (Federally Assisted Construction) clause in every subcontract or purchase order, unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Provided, however, in the event a 2 of 8 Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the Contractor may request the United States to enter into such litigation to protect the interests of the United States. 8. The Contracting Local Organization further agrees that it will be bound by the above Equal Opportunity (Federally Assisted Construction) clause with respect to its own employment practices when it participates in federally assisted construction work. Provided, however, if the Contracting Local Organization so participating is a State or Iocal government, the above Equal Opportunity (Federally Assisted Construction) clause is not applicable to any agency, instrumentality, or subdivision of such government which does not participate in work on or under the contract. 9. The Contracting Local Organization agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of Contractors and subcontractors with the Equal Opportunity (Federally Assisted Construction) clause and the rules, regulations and relevant orders of the Secretary of Labor. It will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance; and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. 10. The Contracting Local Organization agrees it will refrain from entering into any contract modification, subject to Executive Order No. 11246 of September 24, 1965, with a Contractor debarred from or who has not demonstrated eligibility for, Government contracts and Federally assisted construction contracts pursuant to the Executive Order. And, will carry out such sanctions and penalties for violation of the Equal Opportunity (Federally Assisted Construction) clause as may be imposed upon Contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part 11, Subpart D, of the Executive Order. In addition, the Contracting Local Organization agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions. Cancel, terminate, or suspend, in whole or in part, this grant. Refrain from extending any further assistance to the Contracting Local Organization under the program with respect to which its failure or refusal occurred until satisfactory assurance of future compliance has been received from such Contracting Local Organization; and refer the case to the Department of Justice for appropriate legal proceedings. III. NOTICE TO CONTRACTING LOCAL ORGANIZATIONS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES 1. A Certification of Nonsegregated Facilities must be submitted by the Contracting Local organization prior to any agreement for Federal f'mancial assistance where the Contracting Local Organization will itself perform a federally assisted construction contract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. 2. The Contracting Local Organization shall notify prospective federally assisted construction contractors of the Certification of Nonsegregated Facilities required, as follows: IV. NOTICE TO PROSPECTIVE FEDERALLY ASSISTED CONSTRUCTION CONTRACTORS 1. A Certification of Nonsegregated Facilities must be submitted prior to the award of a federally assisted construction contract exceeding $10,000 which is not exempt from the provisions of the Equal Oppommity clause. 2. Contractors receiving federally assisted construction contract awards exceeding $10,000 not exempt from the provisions of the Equal Opportunity clause will be required to forward the following notice to prospective subcontractors for supplies and construction contracts where the subcontracts exceed $10,000 and are not exempt from the provisions of the Equal Opportunity clause. 3 of 8 V. NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES 1. A Certification of Nonsegregated Facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. 2. Contractors receiving subcontract awards exceeding $10,000 not exempt from the provisions of the Equal Opportunity clause will be required to forward this notice to prospective subcontractors for supplies and construction contracts where the subcontracts exceed $10,000 and are not exempt from the provisions of the Equal Opportunity clause. SCS-AS-818 Rev. 4-70 File Code AS-14 VI CERTIFICATION OF NONSEGREGATED FACILITIES (Applicable to federally assisted construction contracts and related subcontracts exceeding $10,000 not exempt from the Equal Opportunity Clause.) The federally assisted construction contractor certifies they do not maintain or provide for their employees any segregated facilities at any of their establishments, and that they do not permit their employees to perform services at any location, under their control, where segregated facilities are maintained. The federally assisted construction contractor certifies further that they will not maintain or provide for their employees any segregated facilities at any of their establishments. And that, they will not permit their employees to perform services at any location, under their control, where segregated facilities are maintained. The federally assisted construction contractor agrees that a breach of this section is a violation of the Equal Opportunity Clause in this contract. As used in this caption, the term "segregated facilities" means any waiting rooms, work areas, restrooms, washrooms, restaurants or other eating areas, time clocks, locker rooms or other storage or dressing areas, parking lots, water fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, or national origin or because of habit, local custom, or otherwise. The federally assisted construction contractor agrees that (except where they have obtained identical certifications from proposed subcontractors for specific time periods) they will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity Clause, and that they will retain such certifications in their files. NOTE: The penally for making false statements in offers is prescribed in 18 U. S. C. 1001. Contractor Signature Title Date 4 of 8 VII. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) 1. As used in these specifications: a. "Covered area" means the geographical area described in the solicitation from which this contract resulted. b. "Director" means Director, Office of Federal Contract act Compliance Program, United States Department of Labor, or any person to whom the Director delegates authority. c. "Employer identification number" means the Federal Social Security number used on the Employer's Quarterly Federal Tax Return, U.S. Treasury Department Form 94 I. d. "Minority" includes: (i) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (ii) Hispanic (all persons of Mexican, Puerto Rican, Cub Central or South American or other Spanish Culture or origin, regardless of race); (iii) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (iv) American Indian or Alaskan Native (all groups having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). 2. Whenever the Contractor, or any Subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract, in excess of $10,000, the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation which is set forth in the solicitations from which the contract resulted. 3. If the Contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through as association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO Clause, and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The" overall good faith performance by other Contractors or Subcontractors toward a goal in an approved Plan does not excuse any covered Contractors or Subcontractors failure to take good faith efforts to achieve the Plan goals and timetables. 4. The Contractor shall implement the specific affirmative action standards provided in Paragraphs 7. a. through 7. p. of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as pementages of the total hours of employment and training of minority and female tuition that the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in geographical areas where they do not have a Federal or Federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice of and such notices may be obtained from any Office of Federal Contract Compliance Programs or from Federal procurement Contracting Officers. The Contractor is expected to make substantially uniform progress toward meeting its goals in each craft during the period specified. 5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractors obligations under these specifications, Executive Order 1 1246, or the regulations promulgated pursuant thereto. 5 of 8 6. In order for the non-working training hours of apprentices and trainees to be counted in meeting the goals, apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor. 7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractors compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shalI document these efforts fully, and shall implement affirmative action steps at least as extensive as the following: a. Ensure and maintain a working environment free of harassment, intimidation and coercion at all sites, and in all sites at which the Contractors employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the Contractors obligations to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current fist of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organization's responses. c. Maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority and female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union. Or, if referred, and not employed by the Contractor, this shall be documented in the file with the reason therefore, along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the union or unions, with which the Contractor has a collective bargaining agreement, has not referred to the Contractor a minority person or woman sent by the Contractor; or, when the Contractor has other information that the union referral process had impeded the Contractor's efforts to meet its obligations. e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities, and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractors employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under Paragraph 7.b. above. f. Disseminate the Contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; and specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed. g. Review, at least annually, the company's EEO policy and the action obligations under these specifications with all employees having any responsible for hiring, assessment, layoff, termination, or their employment decisions, including specific review of these items with on-site supervisory personnel such as Superintendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending subject matter discussed, and disposition of the subject matter. h. Disseminate the Contract's EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and 6 of 8 discussing the Contractor's EEO olic with other Contractors and Subcontractors with whom the P Y Contractor does or anticipate doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minorities and female students and to minority and female recruitment and training organizations, serving the Contractor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of the applications for apprenticeship or other, training by any recrUitment sources, the Contractor shall send written notification, to organizations such as the above, describing the openings, screening procedure, and tests to be used in the selection process. j. Encourage present minority and female employees to recrUit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a Contractors workforce. k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3. I. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classification work assignments, and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor's obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single user toilet and necessary changing facilities shall be provided to facilitate privacy between the sexes. o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female constrUction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. p. Conduct a review, at least annually, of all supervisors' adherence to and performance under the Contractor's EEO policies and affirmative action obligations. 8. Contractors are encouraged to participate in voluntary associations which assist in one or more of the affirmative action obligations (Paragraphs 7.a through 7.p.). The efforts ora contractor association, joint contractor-union, contractor-community, or other share group of which the Contractor is a member and participant, may be asserted as any one or more of its obligations under Paragraphs 7.a. through 7.p. of these Specifications provided, the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractors minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor's and failure of such a group to an obligation shall not be a defense for the Contractor's noncompliance. 9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and nonminority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized). 10. The Contractor shall not use the goals and timetables of affirmative action standards to discriminate against any person because of race, color, religion, sex, or national origin. 7of8 11. The Contractor shall not enter into any Subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246. 12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 1 1246, as amended. 13. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay and locations at which the work was performed. Records shall be maintained in an easy understandable and retrievable form however, to the degree that existing records satisfy this requirement, Contractors shall not be required to maintain separate records. 14. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in Paragraph 7. of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR 604.8. 15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program). 8 of 8 ATTACHMENT A - SPEC/AL PROVISIONS I. DRUG-FREE WORKPLACE CERTIFICATION H. CERTIFICATION REGARDING LOBBYING HI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS - PRIMARY COVERED TRANSACTIONS IV. CLEAN AIR AND WATER CERTIFICATION V. ASSURANCES AND COMPLIANCE VI. EXAMINATION OF RECORDS ATTACHMENT A - SPECIAL PROVISIONS The signatories (grantee, recipient sponsor, or cooperator) agrees to comply with the following special provisions which are hereby attached to this agreement. I. Drug-Free Workplace. By signing this agreement, the recipient is providing the certification set out below. If it is later determined that the recipient knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the NRCS, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. Controlled substance means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); Conviction means a finding of (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes; Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacturing, distribution, dispensing, use, or possession of any controlled substance; Employee means the employee of a grantee directly engaged in the performance of work under a grant, including: (I) All direct charge employees; (ii) All indirect charge employees unless their impact or involvement is insignificant to the performance of the grant; and, (iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirements; consultants or independent contractors not on the grantees' payroll; or employees of subrecipients or subcontractors in covered workplaces). Certification: A. The grantee certifies that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an ongoing drug-free awareness program to inform employees about -- (1) The danger of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of'the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph 9a) that, as a condition of employment under the grant, the employee will -- (1) Abide by the terms of the statement; and (2) Notifying the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such a conviction; (e) Notifying NRCS in writing, within ten calendar days after receiving notice under paragraph 9(d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted -- (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f). (h) Agencies shall keep the original of all disclosure reports in the official files of the agency. B. The recipient may provide a list of the site(s) for the performance of work done in connection with a specific project or other agreement. II. Certification Regarding Lobbying (7 CFR 3018) (Applicable if this agreemem exceeds $100,000) (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the recipient, to any person for influencing or attempting to influence an officer or employee of an agency, Member of Congress, and officer or employer of Congress, or a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress, in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form ~ LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The recipient shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that ali subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. III. Certification Regarding Debarment, Suspension, and Other Responsibiliw matters - Primary Covered Transactions, (7 CFR 3017) (1) The recipient certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (l)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal has one or more public transactions (Federal, State or local) terminated for cause or default. (2) Where the primary recipient is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this agreement. IV. Clean Air and Water Certification (Applicable if this agreement exceeds $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA, or is not otherwise exempt.) The recipient signatory to this agreement certifies as follows: (a) Any facility to be utilized in the performance of this proposed agreement is , is not ,, listed on the Environmental Protection Agency List of Violating Facilities. (b) To promptly notify the State or Regional Conservationist prior to the signing of this agreement by NRC S, of the receipt of any communication from the Director, Office of Federal Activities, U. S. Environmental Protection Agency, indicating that any facility which he/she proposes to use for the performance of the agreement is under consideration to be listed on the Environmental Protection Agency List of Violating Facilities. (c) To include substantially this certification, including this subparagraph (c), in every nonexempt subagreement. Clean Air and Water Clause (Applicable only if the agreement exceeds $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA or the agreement is not otherwise exempt.) A. The recipient agrees as follows: (1) To comply with all the requirements of section 114 of the Clean Air Act as amended (42 U.S.C. 1857, et seq., as amended by Public Law 91-604) and section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et. sq., as amended by Public Law 92-500), respectively, relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder before the signing of this agreement by NRCS. (2) That no portion of the work required by this agreement will be performed in a facility listed on the Environmental Protection Agency List of Violating Facilities on the date when this agreement was signed by NRCS unless and until the EPA eliminates the name of such facility or facilities from such listing. (3) To use their best efforts to comply with clean air standards and clean water standards at the facilities in which the agreement is being performed. (4) To insert the substance of the provisions of this clause in any nonexempt subagreement, including this subparagraph A. (4). B. The terms used in this clause have the following meanings: (1) The term "Air Act" means the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Public Law 91-604). (2) The term "Water Act" means Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Public Law 92-55). (3) The term "clean air standards" means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to the Air Act or Executive Order 11738, an applicable implementation plan as described in section 110(d) of the Clean Air Act (42 U.S.C. 1857c-5(d)), and approved implementation procedure or plan under section 111 (c) or section 11 l(d), respectively, of the Air Act (42 U.S.C. 1857c-6(c) or (d)), or an approved implementation procedure under section 112(d) of the Air Act (42 U.S.C. 1857c-7(d)). (4) The term "clean water standards" means any enforceable limitation, control, condition, prohibition, standards, or other requirement which is promulgated pursuant to the Water Act or contained a permit issued to a discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U.S.C. 1342), or by a local government to ensure compliance with pretreatment regulations as required by section 307 of the Water Act (3 U.S.C. 1317). (5) The term "compliance" means compliance with clean air or water standards. Compliance shall also mean compliance with the scheduled or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency or any air or water pollution control issued pursuant thereto. (6) The term "facility" means any building, plant, installation, structure, mine, vessel or other floating craft, location or site of operations, owned leased, or supervised by a sponsor, to be utilized in the performance of an agreement or subagreement. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location shall be deemed to be a facility except where the Director, Office of Federal Activities, Environmental Protection Agency, determines that independent facilities are collated in one geographical area. V. Assurances and Compliance As a condition of the grant or cooperative agreement, the recipient assures and certifies that it is in compliance with and will comply in the course of the agreement with all applicable laws, regulations, Executive Orders and other generally applicable requirements, including those set out in 7 CFR 3015, 3016, 3017, 3018, 3019, and 3052 which hereby are incorporated in this agreement by reference, and such other statutory provisions as are specifically set forth herein. VI. Examination of Records Give the NRCS or the Comptroller General, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to this agreement. Retain all records related to this agreement for a period of three years after completion of the terms of this agreement in accordance with the applicable OMB Circular.