MEMORANDUM OF AGREEMENT (2009)

PROJECT BE 09-F82

MEMORANDUM OF AGREEMENT

BETWEEN THE INDIAN HEALTH SERVICE

AND THE

LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS

CONSTRUCTION OF SANITATION FACILITIES

TO SERVE BIA HIP AND OTHER CATEGORY HOMES

ON THE LITTLE TRAVERSE BAY BANDS RESERVATION

ALCONA, ALGER, ALPENA, ANTRIM, BENZIE, CHARLEVOIX, CHEBOYGAN,

CHIPPEWA, CRAWFORD, DELTA, EMMET, GRAND TRAVERSE, IOSCO,

KALKASKA, LEELANAU, LUCE, MACKINAC, MANISTEE, MISSAUKEE,

MONTMORENCY, OGEMAW, OSCODA, OTSEGO, PRESQUE IDLE, ROSCOMMON,

SCHOOLCRAFT AND WEXFORD COUNTIES, MICHIGAN

Public Law 86-121

IN WITNESS WHEREOF, the parties have hereto subscribed their names.

FOR THE LITTLE TRAVERSE BAY BANDS OF ODAWA

INDIAN

Me Baral 104

Chairperson , having Been Duly‘Authorized To Enter Into Date

This Agreement On Behalf of the Little Traverse Bay Bands

of Odawa Indians

FOR INDIAN HEALTH SERVICE

2-/3—-0F

ppg Besa Director, Bemidji Area fice, Indian Health Service, Date

THY Department of Health and Human Services —

t y

Description Page

1.0 PREAMBLE. ....csscccsesssessesoesssecoecceesocsssesesessscesacsenessesseestssseeasssnsssesnssacssnssssssesssessusseusessssseeveanss 3

2.0 FINANCIAL OBLIGATIONS .....cccssscsscesssssssscsesccsssssesecssessscssnssassessssssssssessnssseesauenssseseenaeeses 3

2.4. PROJECT FUNDING SUMMARY ....cccccscsssessssesssesstssssatesessessesssssstessessecssseecssesseteseess 3

3.0 AGREEMENT PROVISIONS .....s...ssssssssssssssssessssssssseesssscesseessoreesseessatecouesesateessueeesaeessaeessasess 4-

3.1. TRIBAL LANDS..:..cccccscessecssceseeccecscecssessaseserssesatesessersasssavssevsssssssssssessunsssesesseessseseeseeeeees 4

3.2 HISTORIC PRESERVATION AND ENVIRONMENTAL REVIEW uu.....scsseessesseeseseee 5

3.3 HOMES SERVED ...ccssssseccscececssesesesssersesesstsessetsseesstsssessses scssessutsussucseuesnecseveneenerseenaneaes 6

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3.5 INDIAN HEALTH.SERVICE CONTRIBUTIONS ....ccccsssesecsesesssecssessstsessstsssseesseessseees 7

3.6 TRANSFER OF FACILITIES .....sssssssscesssessessessstsseestsssens secesseeteveveravesecseleratsaveneentesneess 7

3.7. OPERATION AND MAINTENANCE FEES AND ORDINANCES .........0:ssseesseeseseees 8

3.8 PROJECT SCHEDULE... sssucssecsecsucsscuacenessucsaesasesecansenssvensesnessessvsasssesacease 8

3.9 PROJECT CLOSEOUT AND REIMBURSEMENT .......cccessessssssessessssstesssssesssesssssseeens 9

3.10 WARRANTIES ..cescccscssecssecesssesscecssessesssvesusssesssesuestveseessessessessesssssisssessnssessessessensseesee 9

3.11 DISPUTE RESOLUTION ..ecccsssssssecssessseecersscsseesecseesstssssssesstsssssssssssssessrsssesseseesneeseensee 9

3.12 TERMINATION OF THE AGREEMENT ......ccsccssssssccssssessssesssssscsstsssessssssessrseesssesseeses 10

3.13 ADDITIONAL SERVICES....sssssssssessssseesesseeesenssssnnannnseceesensesssasassnnseeseessuiiennanssstt 10

4.0 ADDITIONAL PROVISIONS FOR TRIBAL PROCUREMENT uasscssesssssssssssssssssssessenees senses 11

4.1 TRIBAL CONTRIBUTIONS j....secsccssescsssececsueccsuccssscessuesersecssuessasersesessntesssnesssneessseen 11

4.2 IHS CONTRIBUTIONS .....ececsccssessesssstsstssssssssessessessstssessesssesssesesseessesssensees deseceeseeeet1

4.3 TRIBAL FINANCIAL MANAGEMENT STANDARDS ........:sssssssssssseessssssssonsnsssnnnnse 12

4:4 PROCUREMENT STANDARDS .....sesscssesseceseesseeee esteesaestessatesseeseen essupessupesseesseessees 13

4.5 COMPETITIVE PROCUREMENT PRACTICES csscsscsscsssesssssssseecssresssssseeeeeseeesseees 13

4.6 INDIAN PREFERENCE.......seessssssssssesssesserseesetsstessessessenens cecuctuvesesaverersneensesatesessessasess 14

4.7 REQUIRED NOTICE TO PROSPECTIVE BIDDERS ....scsssssessssssessseseesseesseeseeseessenses 14

A.B WAGE RATES ceccceccssecssscssessvessecsssssssssusssscssesuesssesecssucisssssesteseeseesesseesssensessvessesseesseeses 14

4.9 BOND REQUIREMENTS ....cccscsscssssssssseccessessessssssssessssssssssssstsstscecsesssscsesssecsesseeesersees 15

4.10 SUBCONTRACT LIMITS: ...cccccssesscsssesssessecsesssssssesstssussstsssssssssssessetsssesssessensseaeessensee 15

4.11 ADMINISTRATIVE PROVISIONS \..c..ccscssscssseessssseseesstssessessetsstestsssssseesessseesesseneeses 5

4.12 GENERAL PROVISIONS ....cccccsssecccescsecssecssecsecssscussecsstessesussatsstsssesssssesscsssssessenessesees 16°

4.13 SPECIAL PROVISIONS ......cccsccssssesscssessesssessessesstssteseesstesees ssucesueecareesatessessaveensvessere 16

4.14 SUBMITTAL REQUIREMENTS ....cscssccsssssssesstsscssssssssesssssssssessssseessesseessecssenseesenses 16

“4.15 FINAL INSPECTION ...cccsccssccecssesssscsseccsescecsessessecssesssesssesacssnsssssecsecssselensseeseeseseacesess 16

CONTENTS

1.0

2.0

PREAMBLE

This agreement is made between the Indian Health Service, hereinafter called IHS, acting

through the Director, Bemidji Area IHS, Department of Health and Human Services, acting

on behalf of the United S tates of America, under and pursuant to the provisions of Public

Law 86-121 (42 U.S.C. 2004a; 73 Stat. 267); and the Little Traverse Bay Band,

hereinafter called the Band, acting through their Chairperson.

WHEREAS, The Band is desirous of obtaining satisfactory water supply and wastewater

disposal facilities for homes on the Little Traverse Bay Bands of Odawa Indians (LTBB)

Reservation, and

WHEREAS, the Band, acting through the Housing Director, submitted a Project Proposal

Letter dated December 2, 2008, requesting IHS assistance under Public Law 86-121 to

construct water supply and wastewater disposal facilities to serve approximately 10 Other

Category homes on the LTBB Reservation; and

WHEREAS, the IHS is desirous of assisting in the construction of water supply and

wastewater disposal facilities for Other Category homes to protect the health of the Tribal

members and to safeguard the environment of the LTBB Reservation; and

WHEREAS, the Band has reviewed and concurs with the provisions of the attached Project

Summary.

NOW THEREFORE, in order to carry out the project as set forth in the attached Project

Summary entitled “CONSTRUCTION OF SANITATION FACILITIES TO SERVE OTHER

CATEGORY HOMES”, dated May 2009, the parties mutually agree that:

FINANCIAL OBLIGATIONS

2.1. PROJECT FUNDING SUMMARY

2.1.1. Funding Contributions

IHS $160,000.00

Little Traverse Bay Bands of $ 0.00

Odawa Indians

US EPA | $ 0.00

US Army Corps of Engineers $ 0.00

USDA — Rural Utility Service -$ 0.00

Other | $ 0.00

Total Project Funding * $160,000.00

BE 09-F82 Page 3 of 17

2.1.2

2.1.3

2.1.6

Funding Allocation

Construction Amount $ 132,500.00

IHS Construction Support $ 14,250.00

Contingencies $ 13,250.00

NEPA Evaluations $ 0.00

Total Project Funding ’ $160,000.00

IHS shall provide funding for all materials, supplies, equipment, and labor

for the installation of water supply.and wastewater disposal facilities as

provided for in the attached Project Summary, and not otherwise provided

for in this agreement. The total contribution amounts identified in Section

2.1.1 shall not be exceeded without a fully executed amendment to this

agreement. ,

IHS shall utilize project funds as indicated in Section 2.1.2 for IHS

construction support expenses. Project construction support expenses

shall include IHS expenditures for technician and clerical salaries, GSA

vehicles, and miscellaneous project related expenses.

The Band shall provide the required sanitation facilities and services for

its direct benefit using its own tribal procurement system. IHS shall _

provide technical assistance and contribute funds to the Band for the

approved cost of the sanitation facilities and services in accordance with

the provisions of this agreement.

IHS shall release contributions to the Band as provided for in this

Agreement upon:

a. Execution of this agreement by all parties; and

b. Receipt of written request from the Tribe for the required funds; and ~

c. Certification from the IHS Project Engineer that the amount of funds

requested is required to make timely payments in accordance with the

project budget for the supplies, materials, equipment, and services

being obtained under the pr ovisions of this agreement; and

d. Approval by the Bemidji Area Office.

3.0 AGREEMENT PROVISIONS

3.1

BE 09-F82

TRIBAL LANDS

3.1.1

The Band hereby grants permission for the IHS and its representatives to

enter upon or across the lands under the jurisdiction of the Band for the

purpose of carrying out the project outlined in the attached Project

Summary and provided for in this agreement and further agrees to waive

all claims which may arise by reasons of such entry, except those which

may be recognized under the Federal Tort Claims Act.

. Page 4 of 17

3.2

BE 09-F82

3.1.2

The Band will obtain without charge to the IHS all easements and/or

rights-of-way on or over lands as in the judgment of the IHS may be

necessary for the provision and operation of any sanitation facilities

provided for herein and waives any claim for compensation and damages

therefore.

The Band will obtain without charge to the IHS all land necessary for the

construction of the facilities provided in the Project Summary. All

interests in such lands, easements, and rights-of-way shall remain with

the Band, except as otherwise provided for in this Agreement.

HISTORIC PRESERVATION AND ENVIRONMENTAL REVIEW

3.2.1

3.2.2

3.2.3

3.2.4

That the Band will provide assistance in complying with the regulations -

(36 CFR 800) implementing Section 106 of the National Historic

Preservation Act.(16 U.S.C. 470f) by informing IHS of any traditional

cultural properties which might be affected by construction of the project.

The Band shall take appropriate steps to identify traditional cultural

properties which could be affected by the project, including contacting

traditional cultural leaders or other tribal members who may have

knowledge about such locations, sites, or objects.

That the IHS shall consult with the Band regarding excavations that may

result in inadvertent discovery of human remains in accordance with the

Native American Graves Protection and Repatriation Act (25 U.S.C.

3001).and the implementing regulations at 43 CFR Part 10. This

Agreement shall serve as official notice to the Band that the proposed

sanitation facilities construction may result in inadvertent discoveries, and

that any such discoveries shall be subject to the above regulations,

including consultation between the IHS and the Tribally designated

cultural resources representative and disposition of human remains or

related cultural items. If the Band is administering construction of the

_ . Sanitation facilities, through a Tribal.contract or force account, itshall _ .

assume full responsibility for compliance with 43 CFR Part 10. [Note: The

IHS remains responsible for complying with the regulations implementing

Section 106 of the National Historic Preservation Act regarding postreview discoveries at 36 CFR 800.13]

IHS is required to perform an Environmental Review on all projects or

ensure compliance with the National E nvironmental Policy Act and other

environmental laws and regulations. [t is unknown what level of effort will

be required to complete the Environmental Review due to the very nature

of the review process. Therefore, IHS will be only responsible for costs

as outlined in Section 2.1.2. Additional costs will be handled through

either negotiated cost sharing, reduction of project scope, changed

project scope, or cancellation of the project.

The project, or any portion thereof, may be deemed unfeasible if its

implementation would violate the National Environmental Policy Act or

other environmental laws and regulations.

Page 5 of 17

3.3

3.4

BE 09-F82

HOMES SERVED

3.3.1

3.3.2

3.3.3

3.3.4

3.3.5

3.3.6

3.3.7

3.3.8

The Band shall provide a prioritized list of eligible homes to be served

under this project. Changes or deletions of homes may be made by the

Band at any time prior to actual construction providing such changes are

made in writing by the authorized Band representative. The actual homes

served will be determined by the Band from the list of homes provided.

The Band shall provide for, at no cost to the IHS, water and sewer lines to.

be extended to a point five feet outside homes approved for service;

power and adequate electrical facilities, including proper electrical service

entrance, to be available at each home; and homes to be adequately

winterized, including blocking and skirting for mobile homes, to protect

facilities from freezing.

IHS. shall make the final determination of eligibility taking into account the

recommendations of the Band. The IHS reserves the right to delete from

the project any home or participant for which eligibility requirements have

not been met, and to withdraw from the project any or all funds intended

to serve those homes.

The Band will insure all lot corners staked out in the field at those sites

requested by the IHS before soils evaluations are performed by the IHS.

The Band, at no additional cost to IHS, will assure that all sites will be

adequately cleaned of tim ber and other obstructions to allow for

_ installation of sanitation facilities.

The Band will assure the provision of adequate frost protection for

sanitation facilities installed at each home.

it is agreed by all parties that where a site evaluation indicates that a site

_. will not properly support the operation of sanitation facilities, or the cost of

the sanitation facilities will exceed the current !HS unit site cost cap, that

particular site will not receive sanitation facilities under this project with

one exception. Sites expected to exceed the cost cap may receive

sanitation facilities under this project if the Band and/or homeowner

agrees to pay those costs in excess of the IHS cost cap.

All parties understand that where a home is located within the

geographical jurisdiction of a utility maintenance organization, the rules

and regulations of that organization will apply.

TRIBAL CONTRIBUTIONS

3.4.1

The Band will appoint a representative who will perform the following

functions:

a. Coordinate the conduct of the Band’s participation under this

agreement including, active promotion of project participants at

meetings and obtaining consent of the project participants; and

Page 6 of 17

3.5

b. Obtaining Band cooperation in fulfillment of labor responsibilities

assumed by the Band under this agreement; and

c. Provide the IHS with information available to the Band that relates

directly to this project, to the extent possible; and

d. Attend the final inspection in coordination with the IHS project

engineer.

INDIAN HEALTH SERVICE CONTRIBUTIONS

3.5.1 The IHS project engineer shall coordinate IHS Participation in the project.

| 3.5.2 IHS will provide to the Band, as needed to meet the gover nment’s

3.6

BE 09-F82

requirements, approval or disapproval of materials, quality control,

testing, consultations, site visits, and final acceptance necessary for

construction of the sanitation facilities in accordance with the attached

Project Summary.

3.5.3 IHS will provide without charge to the Band:

a. Coordination in obtaining the necessary reviews under the National

Environmental Policy Act (NEPA) and applicable laws, regulations,

and executive orders. Reviews shall be completed in accordance with

IHS environmental review policies and procedures; and

b. Instructions as to the proper utilization, maintenance, operation and

protection of the facilities provided for herein; and

c. Soil evaluations and design recommendations for onsite water supply

and wasiewater treatment and disposal systems.

3.5.4 IHS shall provide construction support to the Band, including but not

limited to the following:

a. Engineering design and development of the plans and specifications

___. of the recommended facilities.

b. Assistance to the Band in the solicitation of bids and review of the

bids received.

c. Construction surveying and layout.

d. Review and approval of shop drawings, payment requests and

change orders.

e. Intermittent site visits during installation of sanitation facilities for the

purpose of verifying compliance with the contract plans,

specifications, and minimum IHS standards.

f. . Coordination with the designated B and representative for the joint

final inspection as provided for in this agreement.

g. IHS shall certify and recommend for payment all applicable

construction contract payment requests and provide copies to the

Band.

TRANSFER OF FACILITIES

3.6.1 All parties understand that the facilities constructed (including equipment,

land, and supplies purchased) under this agreement with IHS or -

Page 7 of 17

3.7

3.8

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3.6.2

3.6.3

3.6.4

contributed funds are at no time the property of the IHS, but rather belong

to the Band, which shall operate and maintain such facilities properly,

until or unless transferred to other parties.

Because IHS does not at any time own the facilities constructed, no

formal transfer agreement is necessary. In lieu of a transfer agreement,

the IHS will notify the Band when IHS participation in the project is

complete.

The Band shall transfer on site water and wastewater facilities to

individual homeowners. Upon completion of the construction the

homeowners are responsible for operation and maintenance of the

facilities. Facilities constructed under this agreement at all times belong

to the Band until transferred to individual homeowners or other parties.

It is the understanding of the parties to the Agreement that participants

whose homes will be connected to the Band facilities will be the

responsible entity for the payment of the monthly service charge, unless

funds are identified for operation and maintenance from another source,

and that these participants must adhere to the rules and regulations

adopted by the Band or governing utility organization.

OPERATION AND MAINTENANCE FEES AND ORDINANCES

3.7.1

3.7.2

The Band will establish connection fees and user rates and collect such

charges from individuals served by the system as are necessary to

sustain the operation, maintenance, and repair of the Band water supply

and sewerage systems. Alternatively, the Band may provide this revenue

from another dedicated revenue source.

The Band agrees to enact and enforce appropriate ordinances or

regulations governing: (1) Connection to the Band water supply and

‘sewage system by the residents of the reservation; (2) The methods and

materials to be used in making connections to the B and water supply and

sewage system in a safe and sanitary manner; and, (3) the continued

operation, maintenance, and repair of individual water supply and waste

disposal facilities in a safe and sanitary condition by the persons served .

thereby.

PROJECT SCHEDULE

3.8.1

3.8.2

In the interest of coordination, understanding, and econom y, before

construction of the project begins, the IHS Project Engineer in

consultation with the Band shall prepare a schedule for the conduct of the

project. The schedule may be modified or amended by the Project

Engineer when necessary to carry out the project.

It is important that the installation of the water supply and waste disposal

facilities provided for herein be completed as soon as practicable in

accordance with the schedule of the Pr oject Engineer.

Page 8 of 17

3.9

3.8.3 That in the event actual construction of this project can not be initiated, for

any reason by December 31, 2009, the IHS reserves the right to cancel

the project and use the funds earmarked therefore for other projects

. which lack impediments to prompt construction. If the condition, which

impeded construction, is resolved following cancellation, the Bemidji Area

Office, will give high priority to funding the project from appropriated

sanitation facilities funds available at that time or from future

appropriations for sanitation facilities.

PROJECT CLOSEOUT AND REIMBURSEMENT

3.9.1 The IHS will close out the project when it determines that all applicable

administrative actions and all required project work have been completed.

The Band shall return all unexpended funds c ontributed by IHS within 45

days after the project construction phase. The Band shall submit a

closeout financial report within 90 days following completion of

construction and return of all unused funds. -

3.9.2 Except as otherwise provided, project records shall be maintained for

three years from the project completion date. These records include all

financial records, supporting documents, procurement documents, titles,

equipment records, including but not limited to: time sheets, cancelled

checks, invoices, and purchase orders and shall be available upon

request by the IHS, Inspectors General, or other designated

representatives. The Band shall be subject to audit in accordance with

_ the requirements of the single audit act.

3.9.3 All records shall be retained until completion of any litigation, claim,

negotiation, audit, or other action initiated prior to the end of the 3 year

period until resolution of the issues which arise from it.

3.10 WARRANTIES

3.11

BE 09-F82

3.10.1 The Band will obtain one-year warranties from contractors, suppliers, and

, manufacturers on equipment, work, and supplies provided by them. This

year will commence from the date of acceptance of the wor k involved.

IHS will assist the Band or responsible operation and maintenance

organization in obtaining benefits and pr otection of all warranties on

equipment or work provided under this Agreement.

DISPUTE RESOLUTION

3.11.1 The parties to this Agreement agree to resolve all disputes regarding the

provisions of this agreement among the parties through the Bemidji Area

IHS’s established administrative procedures, first. If a dispute cannot be

resolved locally, the parties agree that the next administrative procedure |

is an appeals board established at the IHS headquarters level, which will

make a recommendation to the IHS Director, who will exercise final

authority for the IHS in the administrative review of all disputes. -

Page 9 of 17

3.12. TERMINATION OF THE AGREEMENT

3.12.1

3.12.2

Any party to the MOA may terminate its relationship with the other MOA

parties prior to project completion upon 30 days advance notic e in writing

to all other parties.

If the MOA is terminated by all parties prior to completion of the project,

all unexpended funds will be returned to the contributors in a prorated

manner and in accordance with the transfer provisions contained herein.

All in-place sanitation facilities will be transferred in accordance with the

provisions of the MOA. IHS may elect to transfer or retain any or all

materials and equipment purchased with IHS funds and may request the .

Band to transfer to IHS materials purchased by the Band with IHS funds.

IHS will return unused IHS funds to bul k accounts at the Area office for

commitment to other projects as appropriate.

3.13 ADDITIONAL SERVICES

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3.13.1 The Band and IHS agrees that additional services may be required to

complete the project scope. These services are not considered basic

services to be performed by IHS and are above and beyond the ser vices

provided under the IHS contributions as outlined in Section 3.5. These

services shall include but not be limited to:

a. A soils engineer or other consultant when such services are deemed

necessary, including reports, test borings, test pits, soil bearing

values, percolation tests, air and water pollution tests, ground

corrosion and resistivity tests and other necessary operations for

determining subsoil, air and water conditions.

b. Assistance of professional cultural resources personnel required for

discoveries or resources anticipated after the completion of the final _

_ drawings... Cn ea ne ce

c. Assistance of professional environmental resource personnel required

for delineation of wetlands, threatened and endangered species or

other NEPA related issues antici pated after the completion of the final

drawings.

d. Assistance in construction testing as necessary to insure that the

materials and methods furnished by the contractor(s) are in

«conformance with the contract plans and specifications. Such testing

includes but is not limited to in-place density tests on backfill material,

gravel gradation analysis, concrete slump and compression tests, and

asphalt material composition tests. The IHS shall monitor and direct

any subsurface explorations that are performied by others.

e. Assistance in providing aerial photography, topographic mapping and

vertical bridging as necessary to aid in the design of the project and

preparation of construction drawings.

‘Page 10 of 17

f. An architect or other consultant when such services are deemed

necessary, including reports, structural design, detail drawings, and

other necessary operations for determining structural conditions.

3.13.2 These services will be initiated and approv éd by the Project Engineer and

be charged directly to the IHS project account or contracted through tribal

procurement. The IHS will provide contributions to the Band for additional

services approved by the Project Engineer and provided using tribal

procurement upon receipt of applicable invoices and supporting

documentation from the Band.

4.0 ADDITIONAL PROVISIONS FOR TRIBAL PROCUREMENT

4.1

4.2

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TRIBAL CONTRIBUTIONS

4.1.1

The Band shall provide for construction through its procurement

system of all water and sewage facilities described in-the Project

Summary; and the Band shall procure the facilities in accordance with

this Agreement and in compliance with applicable Federal requirements.

The Band shall submit to IHS for review and approval before advertising.

all proposed solicitations estimated to cost $50,000.00 or more; that the

Band shall make such adjustments in the solicitation as determined

necessary by IHS. .

IHS CONTRIBUTIONS

4.2.1

4.2.2

4.2.3

IHS shall review and approve proposed unit costs for all items

of work under the project. Once approved by IHS, these unit costs shall

govern all work for the duration of the Band contract under which they are

proposed. Unit costs for additional or special units of work required at

_individual sites shall.be negotiated before the IHS authorizes work for the ©

site or group of sites affected. All unit costs are subject to approval by the

Director, Division of Sanitation Facilities Construction, Bemidji Area prior

to the award of any contract or the start of any construction involving

those items of work.

Contributions shall be made in installments in accordance with the

payment request forms BAO 107M, 108M and /or invoices submitted by

the Band and approved by the IH S Project Engineer. Requests for

contributions shall be made no more frequently than once per month in

accordance with the provisions of section 2.1.6. Advance contributions

may be provided at the request of the B and in accordance with IHS policy

and Bemidji Area practice.

The IHS shall provide a contribution for program administration. This

would be a cumulative amount based on the following scale:

Contract Amount and Administrative Fee

Page 11 of 17

4.3

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4.2.4

4.2.5

4.2.6

$0 to $25,000: Four percent of the contract amount

$25,000 to $200,000: $1,000 plus three percent of the contract

amount in excess of $25,000

Above $200,000: ° $6,250 plus two percent of the contract

amount in excess of $200,000.

At no time during the project will the Band represent the IHS nor will the

IHS represent the Band in contract administration matters.

The IHS will, at the request of the Band, provide oversight and technical

assistance on contractor submittals, progress payments, change order

requests, and other project related information submitted by the Band’s

contractor and make recommendations to the Band.

The IHS and Band shall inspect all sanitation facilities constructed

through Tribal procurement to insure construction meets minimum IHS

standards. The procurement documents shall also note that the IHS

inspector does not have authority to modify the contract or issue direction

to the contractor. Following construction inspection, the IHS will advise

- the Band on whether the construction meets the IHS interpretation of the

contract requirements.

TRIBAL FINANCIAL MANAGEMENT STANDARDS

4.3.1

4.3.2

4.3.3

4.3.4

The Band shall provide the following features in its financial management

. system:

a. The Band shall maintain original accounting records which accurately

identify the source and application of all project funds it receives. The

source documentation shall include cancelled checks, paid bills,

. .payrolls, time and. attendance records, purchasing documents, and .

financial records. Accurate, current, and complete project records

shall be reported in accordance with other provisions of this

’ Agreement; and

b. The Band shall maintain effective controls and accountability for all

cash, real and personal property, and other assets acquired; and |

c. The Band shall compare actual Tribal expenditures with budgeted

amounts for the project; and

d. Applicable OMB cost principles (OMB Circular A-87) and the terms of

this Agreement shall govern in determining the reasonableness,

‘allowability, and allocability of all costs under the project.

The Band shall maintain a separate financial ac count for the project.

Interest in excess of $100 per year earned on cash advances (Federal

funds) must be returned to the IHS project account.

Funds for construction projects under this Agreement shall not be

borrowed or intentionally invested. Funds from one IHS funded

Page 12 of 17

4.4

4.5

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4.3.5

construction project shall not be used for cash flow or other unauthorized

purposed or for another IHS funded construction project.

Any proposed changes by the Band in the project scope and/or budgeted

costs must be reviewed and approved by IHS as provided for in this

Agreement.

PROCUREMENT STANDARDS

4.4.1

4.4.2

4.4.3

The Band shall use a system of contract Administration that ensures

performance by its contractors in accordance with the terms and

conditions of the contract an in compliance with OMB Circular A-102 as

adopted by HHS at 45 CFR 92. (See Appendix F of this Guideline) The

Band shall be responsible in accordance with good administrative

practice and sound business judgment, for the settlement of all

contractual and administrative issues arising out of procurement. These

issues include, but are not limited to source evaluation, protests, disputes,

and claims.

No employee, officer or agent of the Band shall participate in the

selection, or in the award or administration of a contract supported by

Federal funds if a conflict of interest, real or apparent, would be involved.

Such a conflict would arise when: (a) the employee, officer, or agent, (b)

any member of his immediate family, (c) his or her partner, (d) or an

organization which employs, or is about to employ any of the above, has

a financial or other interest in the firm selected for the award.

The Band officers, employees, or agents will neither solicit nor accept

‘ gratuities, favors, or anything of monetary value from contractors or

potential contractors.

COMPETITIVE PROCUREMENT PRACTICES

ABA

All Band procurement under this Agreement shall be competitive and

based on firm fixed prices unless approved by the Director, Division of

Sanitation Facilities Construction, for reasons of public exigency, critical

schedule constraints that could not have been anticipated, or essential

equipment compatibility for operation and maintenance. The following

requirements apply: .

a. Materials, Construction, and Services (non A/E) Estimated at More than

$2,000 and Less than $25,000: The Band shall solicit a written quote

from a minimum of three (3) sources qualified to do the work and likely to

submit a quote. The Band shall award a purchase order to the

responsive, responsible source with the lowest quote.

b. Materials, Construction, and Services (non A/E) Estimated at $25,000 or .

more. The Band shall advertise formally for a minimum of 15 calendar

days for sealed bids to be opened publicly at a specified time, date, and

place. The Band shall award a contract to the responsive, responsible

source which has submitted the lowest bid price.

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4.6

47

4.8

BE 09-F82

c. Architect/Engineer (A/E) Services: The Band shall solicit competitive

proposals from potentially interested professional firms. A three-member

selection board for the Band shall establish objective selection criteria

before soliciting proposals. If IHS project funds are involved, at least one

Registered Professional Engineer from IHS shall serve on the Board.

The Band then shall select the firm determined by those criteria to be

most qualified to perform the work. The Band shall attempt to negotiate

with this firm to set fair and reasonable compensation. If negotiations

with one firm are not successful, the Band may proceed to negotiate with

the next most qualified firms. This process may continue until agreement

is reached.

INDIAN PREFERENCE

4.6.1

4.6.2

If the Band has enacted an Indian prefer ence ordinance of general

applicability and agrees to apply the terms of that ordinance, the Indian

preference requirements of that ordinance shall apply in lieu of IHS

requirements as long as the effect is similar to that of IHS requirements.

The Band may not give preference to tribal members or tribal companies

only, or limit preference geographically, including restriction to those

within reservation boundaries.

In the absence of a formally adopted Indian preference policy by the

Band, preference shall be given in the awar d of construction and service

contracts to those firms (or joint ventures) whose levels of ownership and

control by enrolled Indians (or Alaska Natives) each equal at least 51% of

the total on a continuing basis for the duration of the contract. Firms (or

joint ventures) which satisfactorily document at the time of bid or

quotation such ownership and control shall have an equal to 10 percent of

their total bid deducted from the bid price for comparison with other bids.

_ Once this deduction is made for qualified Indian firms (or joint ventures),

the .award_will be made by the Band to the responsive, responsible bidder _

with the lowest resulting bid.

REQUIRED NOTICE TO PROSPECTIVE BIDDERS

4.7.1. The Band shall notify the vendors and contract bidders of the following:

a. Indian Preference Policy for contracting/subcontracting.

b. Minimum percentage of work to be performed by the Band’s prime |

contractor (33 1/3%, unless otherwise specified).

c.. Responsibility of the Band for compliance with and enforcement of the

contract (i.e., the contract is not a Federal contract).

d. Restrictions on liens (state lien laws do not apply on F ederal trust

_ land).

e. Remedy for disputes, as provided for under General Provisions.

f. The role of the IHS.

WAGE RATES.

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4.9

4.10

4.11.

BE 09-F82

4.8.1

Davis-Bacon wage rates shall apply for all construction contracts

exceeding $2,000 in val ue executed by the Band and funded by Federal

agencies, except for work funded with HUD CDGB. The Tribe is

responsible for reviewing payroll information submitted by the contractor

for compliance with Davis-Bacon requirements. Unless it requests IHS to

obtain wage rates, the Band shall request applicable wage rates directly

from U.S. Department of Labor.

BOND REQUIREMENTS

4.9.1

For construction contracts on Federal trust land exceeding $100,000, the

Band shall require bid, payment, and performance bonds, as described

below. For construction contracts on non-trust land in excess of $50,000,

payment and performance bonds shall be required. The IHS may accept

the bonding policy and requirements of the Band,provided that IHS ,

determines that its interest is adequately protected. In lieu of such

determination, the minimum requirements shall be as follows:

a. Abid guarantee from each bidder equivalent to 5% of the bid price.

b. A payment bond on the part of the contractor for 100% of the contract

price.

c. A performance bond on the part of the contr actor for 100% of the

contract price.

SUBCONTRACT LIMITS:

4.10.1 The prime contractor shall be required to perform with its employees and

equipment at least 33.3 percent of the total amount of the work included

in the contract. Copies of subcontract agreements may be required to

verify the amount of work performed. ,

ADMINISTRATIVE PROVISIONS

4.11.1 The Band’s contract shall contain the following provisions:

a. Administrative, contractual, or legal remedies in instances where

contractors violate or breach contract terms, and provide for such

sanctions and penalties as may be appropriate (except small

purchases). ;

b. Termination for cause and for convenience by the Band including the

manner by which it will be effected and the basis for settlement.

(Contracts exceeding $10,000).

c. Compliance with the “Equal Employment Opportunity” Executive

‘Order 11246 as-amended. (Contracts and subcontracts exceeding

$10,000).

d. Compliance with the Copeland “Anti-kickback” Act.

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- 4.12

4.13

4.14

4.15

BE 09-F82

e. Compliance with the Davis-Bacon Act. (Contracts exceeding $2,000).

f. Compliance with Sections 103 and 107 of the Contract Work Hours

and Safety Standards Act. (Construction contracts in excess of

$2,000).

g. IHS requirements for reporting, as called for in this Agreement.

h. IHS Indian preference requirements, or approved Tribal alternative.

i. Access by the Federal government and the Band to any books,

documents, papers, and records of the contractor which are directly

pertinent to the specific contract for the purpose of making an audit,

examinations, excerpts, and transactions.

_j. Retention of all required records for three years after the Band makes

final payment and all other pending matters are closed.

k. Compliance with all applicable environmental laws and EPA

regulations including Executive Order 11738. (Contracts exceeding

$100,000).

GENERAL PROVISIONS

4.12.1 In the absence of an equivalent set of General Provisions approved by -

Area SFC Division Director for construction contracts, Paragraph 1-45 of

the General Provisions in Schedule B, Appendix B of the MOA Guidelines

for the Public Law 86-121 Sanitation Facilities Construction Program -

Working Draft dated June 2003, shall be included in their entirety in the

Band’s solicitation and contract. For procurement less than $25,000, the

Area SFC Division Director may approve a condensed set of these

General Provisions that protects the IHS and Band’s interests.

SPECIAL PROVISIONS

4.13.1 For procurement greater than $25,000.00, the Band shall include in its

solicitation and contract the Special Provisions shown as Schedule D,

Appendix B of the MOA Guidelines for the Public Law 86-121 Sanitation

Facilities Construction Program - Working Draft dated June 2003, unless.

otherwise provided for in the solicitation.

SUBMITTAL REQUIREMENTS

4.14.1 The Band shall include submittal requirements in the specification section

of its solicitation.

FINAL INSPECTION

4.15.1 The Band shall conduct with the contractor, IHS representatives, and

other interested parties, a final inspection of the facilities provided under

the contract. Final acceptance and payment for the work by the Band

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BE 09-F82

4.15.2

4.15.3

shall not occur until the contractor has corrected all deficiencies identified

at the final inspection and until the work is in full compliance with the

plans, specifications and other contract requirements.

Work will be inspected by IHS to insure that the work performed complies

with all the terms and conditions of the Band contract. Final IHS

contribution for the work performed will not be released to the Tribe until

such time as the IHS participates in a final inspection and determines that

the work complies with all contract requirements. ,

Operation and maintenance of the facility or operational unit will become

the responsibility of the Band once operation commences.

Page 17 of 17