HomeMy WebLinkAboutExhibit 2SUPPLEMENTAL AGREEMENT NO. 2
SCHEDULE A
DESIGNATION OF SERVICE LOCATIONS
Pursuant to this Supplemental Agreement No. 2
dated as of 27th day of January, 2011, between FPL
Services , LLC (the "Company") and The City of Miami (the
"Customer") (the "Supplemental Agreement"), the
Customer hereby designates the following Service
Location(s) of the Customer for purposes of Services to be
provided by the Company pursuant to the Master
Agreement for Demand Side Management and Energy
Efficiency Services ("Master Agreement") dated December
7, 2004 between the parties:
James L. Knight Center
Riverside Administration Building and Garage
GSA Building
Fire -Rescue Station # 2
Fire -Rescue Station # 4
Fire -Rescue Station # 5
Fire -Rescue Station # 7
Fire -Rescue Station # 8
Fire -Rescue Station # 9
Fire -Rescue Station # 12
Police & Fire Headquarters
Manuel Artime Community Center
Manuel Artime Theater
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Executed this _ day of
THE CUSTOMER:
City of Miami
Tony E. Crapp Jr.
City Manager
by:
Attest:
Priscilla A. Thompson
City Clerk
Approved as to insurance requirements: Approved as to legal form and correctness:
Gary Reshefsky, Director
Risk Management Division
THE COMPANY:
FPL Services, LLC
By: Sam Forrest
Its: President
aSchedule_A_Namen
2
Julie 0. Bru
City Attorney
SUPPLEMENTAL AGREEMENT NO. 2
SCHEDULE C
AGREEMENT FOR FEASIBILITY STUDY
THIS SCHEDULE C OF SUPPLEMENTAL
AGREEMENT NO. 2 (this "Schedule") is made
and entered into as of the 27th day of January,
2011, between FPL SERVICES, LLC (the
"Company") and City of Miami (the "Customer")
(the Company and the Customer each being
referred to herein individually as a "Party" and
collectively as the "Parties"), with reference to the
following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of December 7, 2004, between the
Company and the Customer (the "Master
Agreement"), and that certain Supplemental
Agreement No. 2 dated as of day of
2011, also between the Company and
the Customer (the "Supplemental Agreement").
Capitalized terms used herein without other
definition shall have the meanings set forth in the
Master Agreement. Except as otherwise provided
herein in the event of a conflict between the terms
of this Schedule and the Master Agreement, this
Schedule will control.
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth
herein and in the Master Agreement, the Parties,
intending to be legally bound, hereby agree as
follows:
1. Feasibility Study. The Customer hereby
requests the Company to perform a feasibility
study with respect to the Service Location(s)
numbered Service Location No.- Schedule A of
the Supplemental Agreement, in accordance with
the terms and conditions of the Master
Agreement. The Company agrees to perform
such a feasibility study for the compensation set
forth herein, and the Company undertakes to
prepare and submit to the Customer a Feasibility
froi 0-
Report with respect to recommended ECOs at
such Service Location(s) as provided in the
Master Agreement. Detailed specifications, if any,
agreed upon by the Parties for the feasibility study
(including, but not limited to, energy savings
technologies to be reviewed, the Customer's
payback criteria, time schedules and other such
matters) are set forth in Appendix I attached
hereto.
2. Customer Cooperation. The Customer
shall use reasonable efforts to assist the
Company in performing the Services
contemplated by this Schedule, including
providing reasonable access to each Service
Location, providing information concerning each
Service Location, making appropriate Customer
personnel available if requested by the Company
to assist the Company in performing such
Services, and taking any other actions the
Company may reasonably request from time to
time to achieve the purposes and intent of this
Schedule and the Master Agreement. •
3. Election. to Proceed with ECOs. Upon
submission by the Company to the Customer of a
Feasibility Report as set forth above, the
Customer shall have thirty (30) days to determine,
in its sole discretion, if it wishes to proceed with
the implementation of any or all of the ECOs
recommended by the Company in the report and
to supply the Company with a list of the ECOs
approved for further action by the Company;
provided, however, that the Customer shall first
obtain the approval of the Company to proceed
with less than fifty percent (50%) of the
recommended ECOs (as determined on an
estimated implementation cost basis). If the
Customer fails to supply the Company with a list
of such approved ECOs within such thirty (30)-day
period, the Company's obligations under this
Schedule and the Supplemental Agreement shall
terminate, without further liability of the Company,
and the Customer shall be obligated to pay the
Company for the feasibility study in accordance
1
with the provisions of Section 4.2 of this Schedule.
If, however, the Customer wishes to proceed with
the implementation of one or more ECOs and
provides the Company with a list of approved
ECOs in accordance with the foregoing, then the
Company and the Customer shall enter into a
Schedule D (Engineering and Design Order) for
such approved ECOs in accordance with the
provisions of Section 2.4 of the Master
Agreement.
4. Price and Payment.
4.1 Schedule C Price. Subject to the
provisions of Section 4.5 below, the Customer
shall pay to the Company the sum of $68,812.°°
(the "Schedule C Price") for all Services
performed by the Company pursuant to this
Schedule. The Schedule C Price is the full
compensation for such Services and includes all
federal, state and local taxes, if any, assessed
with respect to the Services. or with respect to the
furnishing of any items hereunder.
4.2 Payment on Termination. In the
event of a termination of the Company's
obligations under this Schedule and under the
Supplemental Agreement as set forth in Section 3
above, or as set forth in Section 2.4 of the Master
Agreement, the Company shall provide an invoice
to the Customer for the full Schedule C Price, and
the Customer shall be obligated to pay such
amount within forty-five (45) days following receipt
of the invoice.
4.3 Deferral Election. In the event the
Customer elects to proceed with implementation
of one or more ECOs pursuant to Section 3
hereof, the Customer shall notify the Company, on
or before executing a Schedule D (Engineering
and Design Order) with respect to such ECOs, of
the Customer's election to either (a) receive an
invoice for the full amount of the Schedule C
Price, or (b) defer and rollover payment of the
Schedule C Price until such time as compensation
is payable to the Company pursuant to
Schedule D (or a subsequent schedule, as set
forth in Schedule D). If the Customer elects the
deferral option pursuant to clause (b) of the
foregoing, interest shall accrue on the unpaid
balance of the Schedule C Price at a rate equal to
the lesser of twelve percent (12%) per annum or
the maximum rate permitted by applicable law,
beginning on the date thirty (30) days following
notice of the Customer's election and payable in
full at the time of payment of the Schedule C
Price. If the Customer elects, pursuant to clause
(a) of the foregoing, to receive an invoice, or if the
Customer fails to make a timely election pursuant
to the foregoing, the Company shall issue an
invoice for the full amount of the Schedule C
Price, and the Customer shall be obligated to pay
such amount within forty-five (45) days following
receipt of the invoice.
4.4 Late Payments. Any overdue payment
under this Section 4 shall bear interest at the
Delayed Payment Rate from the date such
payment is due until and including the date of
payment.
4.5 Release from Payment Obligation.
4.5.1 Notwithstanding any provision in
this Schedule to the contrary, the Customer shall
have no obligation hereunder to pay the Company
for the Services performed by the Company under
this Schedule if (a) the Feasibility Report
submitted by the Company pursuant to Section 1
does not identify at least one potential ECO at a
Customer Service Location specified in
Schedule A of the Supplemental Agreement
which meets the Customer's agreed upon
payback criteria of 10 years or Tess, and (b) the
Customer does not elect to proceed further with
any approved ECO as set forth in Section 3. For
purposes of the foregoing, the term "payback
criteria", with respect to an ECO, shall mean the
number of years obtained by dividing (i) the total
estimated implementation cost of the ECO, as set
forth in the Feasibility Report (including the
Schedule C Price specified in Section 4.1 hereof,
but excluding all financing costs associated with
implementation of the ECO), by (ii) the estimated
savings to the Customer from the installed ECO,
including energy savings, maintenance savings,
avoided capital costs, and other costs as
applicable, as set forth in the Feasibility Report.
All such estimates shall be made by the Company
in its sole professional judgment and shall be
binding upon the Customer for purposes of this
Section 4.5.1.
4.5.2 In the event the Company
determines, prior to submission of the Feasibility
2
Report to the Customer, that the Company will not
be able to identify at least one potential ECO
which meets the Customer's agreed upon
payback criteria as set forth in Section 4.5.1
above, then the Company, in its sole discretion,
may elect by written notice to the Customer to
terminate the Supplemental Agreement and this
Schedule without further liability, unless the
Customer, within five (5) days following receipt of
such notice, elects in writing to waive the
provisions of Section 4.5.1 above and to pay to
the Company the Schedule C Price as otherwise
set forth herein.
5. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be
performed by the Company or any other person
pursuant or relating to this Schedule, except as
expressly set forth in Article 4 of the Master
Agreement.
6. No Assignment Or Transfer.
Except as provided in Section 17.02 of the Master
Agreement, the Company cannot assign, sell,
pledge, encumber, dispose of or transfer this
Schedule without the prior written approval of the
City Commission. Any assignment, sale,
encumbrance, pledge, or disposition of this
Schedule or any interest therein by the Company
without prior City Commission approval shall
result in the automatic termination of this
Schedule under Article 15 of the Master
Agreement upon prior Thirty (30) days written
notice by the Customer's City Manager.
7. Public Records. The Company
understands that the public shall have access, as
required by law, to Customer related documents
created pursuant to or directly to this Agreement
including without limitation data, and non-exempt
public records as defined by Florida Statues,
subject to the provisions of Chapter 119, Florida
Statutes, and agrees to allow such access by the
Customer and the public to all documents subject
to mandatory disclosure under applicable law.
8. Compliance With All Laws
Applicable. The Company accepts this Schedule
and hereby acknowledges that the Company's
compliance with all applicable federal, state and
local laws, ordinances, regulations, permits and
similar approvals is a requirement of this
Schedule, and the Company shall comply there
with as the same presently exist and as they may
be amended hereafter.
9. Ownership Of Improvements.
Except as provided in Section 12.01 of the Master
Agreement, as of the effective date of this
Schedule and thereafter, all improvements shall
be vested to the Customer. Furthermore, title to all
ECOs made in or to the Service Locations,
whether or not by or at the expense of the
Company, shall, unless otherwise provided by
written agreement or by Section 12.01 of the
Master Agreement, immediately upon the
completion of the Schedule become the property
of the City and shall remain in custody,
possession and control of the Customer which the
Company will promptly convey as is warranted or
requested.
10. Accounting Records. All records
and accounts created pursuant or directly related
to reimbursable costs under this Schedule,
including invoices, bank statements or duplicate
deposit slips, and all other supporting records
created pursuant or directly related to this
Schedule, shall be available for inspection and
audit by the City and its duly authorized agents or
representatives during business hours, and shall
be maintained in accordance with generally
accepted accounting principles. The Company
recognizes shall keep and preserve, or cause to
be kept and preserved, said records for not less
than thirty-six (36) months after the termination or
expiration of this Schedule. For the same period
of time, the Company shall also retain copies of all
sales and tax returns covering its operations
under this Schedule at the designated Service
Locations, in its local office of operations, and any
other governmental tax or other returns, which
show the Company's reasonable costs, fees and
expenses therein which directly related to this
Schedule, and shall, upon demand, deliver
photographic copies thereof to the Customer at no
cost.
The Company will cooperate with the Customer's
internal auditors and/or such other auditors
designated by the Customer in order to facilitate
the City's examination of records and accounts
created pursuant or directly related to this
Schedule.
IN WITNESS WHEREOF, the Parties hereto have
executed this Schedule by and through their duly
authorized representatives as of the date first
hereinabove written.
The Company:
FPL Services, LLC
By: Sam Forrest
Its: President
The Customer:
City of Miami Attest:
Priscilla A. Thompson
Tony E. Crapp Jr. City Clerk
City Manager
Approved as to insurance requirements: Approved as to legal form and correctness:
Gary Reshefsky, Director
Risk Management Division
Julie O. Bru
City Attorney
SUPPLEMENTAL AGREEMENT NO. 2
SCHEDULE C
APPENDIX 1- FEASIBILITY STUDY SPECIFICATIONS
Scope of Service:
Investment Grade Audit (IGA): Provide an Investment Grade Audit which includes: (1) performing a
detailed energy conservation opportunity assessment of the facilities listed in Schedule A of
Supplemental Agreement 2, including gathering site information, utility bills, drawings and other
historical documents from the City of Miami; (2) documenting exiting conditions to determine baseline
energy usage; (3) developing energy conservation measures (ECMs); and (4) determining ECM
energy usage and corresponding energy savings for each ECM. The following are the primary ECMs
to be assessed:
1. Lighting Systems —
a. Perform field audit to document quantity, type, wattage, and light levels
b. Investigate and document the existing lighting systems and controls (if applicable)
c. Determine baseline energy use from field collected data and customer supplied data
(such as occupancy, special conditions, drawings, etc.)
d. Provide a written report on the findings, cost to upgrade/replace the lighting systems, cost
to install lighting control systems, development of projected material cost savings, and
projected Energy Savings from the lighting retofit/controls.
2. Water Usage
a. Perform field audit to detemine quantity, type, and usage of all toilets, urinals, faucets,
water heaters, and any other equipment that uses domestic water.
b. Determine baseline energy use from field collected data and customer supplied data
(such as occupancy, special conditions, drawings, review of original design criteria, etc.)
c. Provide a written report on the findings, cost to upgrade/replace toilets, faucets, and other
domestic water using equipment, and projected Water Consumption Savings from the
upgrade/replacement work.
3. HVAC Equipment and HVAC Control Systems
a. Perform field audit of all HVAC equipment and HVAC Controls to document quantity, type,
and usage
b. Determine baseline energy use from field collected data and customer supplied data
(such as occupancy, special conditions, set points, trend data, drawings, review of original
design criteria, etc.)
c. Provide a written report on the findings, cost to upgrade/replace the HVAC Systems, cost
to install a new HVAC Control System, and projected Energy Savings from the HVAC
System upgrade/replacement and/or new HVAC Control System.
4. Building Envelope
a. Perform field audit to determine applicability of window replacement. Findings will be
identified in the Feasibility Report for consideration by the Customer
b. Building envelope (reflective roof coating, energy efficient windows, roof insulation)
Schedule: Deliver IGA Report 90 days after notice to proceed.
SUPPLEMENTAL AGREEMENT NO. 2
SCHEDULE E
CONSTRUCTION AND IMPLEMENTATION ORDER
THIS SUPPLEMENTAL AGREEMENT
NO. 2 SCHEDULE E CONSTRUCTION
IMPLEMENTATION ORDER ("SCHEDULE E")
(this "Schedule") for the Service Location(s) set
forth in Schedule A of Supplemental Agreement
No. 2 is made and entered into as of the 27th day
of January, 2011, by and between FPL
SERVICES, LLC (the "Company") and the City
of Miami (the "Customer") (the Company and the
Customer each being referred to herein
individually as a "Party" and collectively as the
"Parties"), with reference to the following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of December 7, 2004, between the
Company and the Customer (the "Master
Agreement") and the Service Location(s) set
forth in Schedule A of Supplemental Agreement
No. 2 dated as of January 27, 2011 also between
the Company and the Customer (the
"Supplemental Agreement"). Capitalized terms
used herein without other definition shall have the
meanings set forth in the Master Agreement. The
terms of the Master Agreement, the
Supplemental Agreement and all Appendices to
this Schedule E are incorporated by reference
into this Schedule E. Except as otherwise
provided herein in the event of a conflict between
the terms of the Master Agreement and this
Schedule the terms of this Schedule will control.
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth
herein and in the Master Agreement, the Parties,
intending to be legally bound, hereby agree as
follows:
1. Construction and
Implementation Services. The Customer
hereby requests the Company to construct and
install each approved ECO identified in Appendix
I attached hereto, in accordance with the final
accepted Design Document prepared by the
Company pursuant to City of Miami Phase 1 IGA.
The Company agrees to perform such Services
for the compensation set forth herein, subject to
the terms and conditions of the Master
Agreement. Further detailed specifications, if
any, agreed upon by the Parties with respect to
the Services to be performed by the Company
hereunder (including, but not limited to, the
designation of one or more Implementation
Contractors approved by the Customer) are set
forth in Appendix II attached hereto. Additional
terms and conditions, if any, with respect to the
Services to be performed by the Company
hereunder or the approved ECOs to be
constructed and installed pursuant to this
Schedule are set forth in Appendix 111 attached
hereto.
2. Customer Cooperation. The
Customer shall use reasonable efforts to assist
the Company in performing the Services
contemplated by this Schedule, including
providing reasonable access to the Customer's
Service Location(s), providing information
concerning the Service Location(s), making
appropriate Customer personnel available. if
requested by the Company to assist the
Company in performing such Services, and taking
any other actions the Company may reasonably
request from time to time to achieve the purposes
and intent of this Schedule and the Master
Agreement.
3. Inspections and Final
Acceptance. During the performance of
Services under this Schedule, the Customer shall
have the right to inspect the work of the Company
or any Implementation Contractor at any time
upon reasonable prior notice. Upon completion
of construction and installation of each ECO, the
Parties shall conduct a final inspection and if the
work is found to be substantially complete, the
Customer shall execute and return to the
Company a Schedule F (Certificate of Final
Acceptance) of the Supplemental Agreement for
each such completed ECO, within twenty (20)
days following receipt by the Customer of a notice
of substantial completion from the Company. If,
upon inspection by the Customer, the work is not
found to be substantially complete, or if any
material defect or deficiency exists, then the
Customer shall so notify the Company in writing
within such twenty (20)-day period, and the
Company shall promptly perform any necessary
corrections and repairs. When the Company has
completed such corrections and repairs, it shall
again issue a notice of substantial completion to
the Customer, and the foregoing procedure shall
be repeated until such time as the Customer shall
execute and return a Schedule F; provided,
however that a failure of the Customer to
respond altogether within any such twenty (20)-
day period following the receipt of a notice of
substantial completion from the Company shall
be deemed, for the purposes of this Schedule, to
constitute an issuance by the Customer of a
Schedule F with respect to the ECO of which the
Customer has been given notice.
4. Training. If applicable pursuant
to the Master Agreement, the Company shall
provide on -site training for a reasonable number
of the Customer's operating personnel with
respect to completed ECOs, and the Customer
shall assist in such training, all as more fully
specified in Appendix II. Unless otherwise
provided in Appendix II, such training shall be
conducted with respect to an ECO following the
Final Acceptance Date of the ECO.
5. ,. Price and Payment.
5.1 Schedule E Price. The
Customer shall pay to the Company the sum of
as per the feasibility study
(not to exceed $2,701,916) for all Services
performed by the Company pursuant to this
Schedule. The Schedule E Price is the full
compensation for such Services and includes all
federal, state and local taxes, if any, including
safes, use and excise taxes, assessed with
respect to the Services or with respect to the
furnishing of equipment and materials hereunder.
5.2. Company Provided
Financing. Not Applicable.
5.3 Assignment and
Assumption Agreement, Demand Side
Management Agreement. The following
documents are to be deemed exhibits to the
Master Agreement for Demand Side
Management and Energy Efficiency Services
effective December 7, 2004 between Florida
Power and Light Company and the City of Miami,
assigned to FPL Services, LLC pursuant to the
Assignment and Assumption Agreement of
August 3, 2010:
5.3.1. Supplemental Agreement #2
Schedule A: Designation of Service Locations
5.3.2 Supplemental Agreement #2
Schedule E: Construction and Implementation
Order
5.3.3 Supplemental Agreement #2
Schedule E: Appendix 1—Approved ECOs
5.3.4 Supplemental Agreement #2
Schedule E: Appendix II — Service Specifications
5.3.5 Supplemental Agreement #2
Schedule E: Appendix III — Draw Schedule
5.3.6 Supplemental Agreement #2
Schedule E: Appendix IV — Preliminary
Construction Schedule
5.3.7 Supplemental Agreement #2
Schedule E: Appendix V — Termination Schedule
5.3.8 Supplemental Agreement #2
Schedule E: Appendix VI — Special Terms and
Conditions for City of Miami EECBG Award
5.4 Invoices.
Notwithstanding any contrary term in Section 3.09
of the Master Agreement, all invoices shall be
submitted to:
Ajani Stewart, Environmental Coordinator
Office of Sustainable Initiatives
City of Miami
444 SW 2nd Ave, 5th Floor
Miami, FL 33130
6. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be
performed by the Company or any other person,
including any Implementation Contractor,
pursuant or relating to this Schedule, except as
expressly set forth in Article 4 of the Master
Agreement or, if applicable, in any Appendix
attached to this Schedule.
7. Availability of Funding.
Notwithstanding Section 15.01 of the Master
Agreement, upon thirty (30) days written notice
from the Customer, acting through the City
Manager, this Schedule is subject to termination
for convenience by the Customer due to lack of
funds, reduction of funds, and/or change in
regulations. In the event of termination, the
Customer shall pay the Company for work
performed through the effective date of
termination as determined in accordance with
Section 8 below.
8. Termination Expense. In the
event of a termination by the Customer pursuant
to Section 7 above, the Company will be paid for
work performed prior to the effective date of
termination as substantiated by invoices and
other supporting documentation reasonably
acceptable to Customer; provided that such
amounts will not exceed the cumulative amounts
up to and including the month of the effective
termination date as set forth in the Termination
Schedule attached as Appendix V. The
Company will have no recourse against the
Customer for the balance of the terminated
portion of the work; provided however, that, for
the avoidance of doubt and subject to the
preceding sentence, the costs for the
performance of work through the effective date
of termination will include the costs of orders
placed with Company's subcontractors and
suppliers prior to the notice of termination that
are not cancelable. Notwithstanding Section
12.01 of the Master Agreement, upon payment
of the termination expenses pursuant to this
Section 8, Customer shall have full title for all
Work performed through the effective date of
termination.
9. Interest. The Customer will pay
12% per annum simple interest on an
undisputed and uncontroverted balance not paid
25 business days from when the Company has
presented a proper invoice, as such terms are
defined by Local Government Prompt Payment
Act. §218.70-218.79, Fla. Stat. All notices and
disputes resolution processes with regard to
invoices and payments thereof shall be subject
to the requirements of the Local Government
Prompt Payment Act.
10. Restrictions on Use of Funds.
The Customer intends to fund the specified work
through a federal grant, the American Recovery
and Reinvestment Act ("ARRA") Energy
Efficiency and Conservation Block Grants
("EECBG"). Company shall provide information,
documentation and cooperation reasonably
necessary for the Customer to comply with its
requirements set forth in Sections 1 through 21
of the SPECIAL TERMS AND CONDITIONS
FOR CITY OF MIAMI EECBG AWARD,
Attached as Schedule E, Appendix IV
("Appendix IV'). Company and the Work shall
comply with Sections 22 through 30 of Appendix
IV.
11. No Assignment Or Transfer.
Except as provided in Section 17.02 of the Master
Agreement, the Company cannot assign, sell,
pledge, encumber, dispose of or transfer this
Schedule without the prior written approval of the
City Commission. Any assignment, sale,
encumbrance, pledge, or disposition of this
Schedule or any interest therein by the Company
without prior City Commission approval shall
result in the automatic termination of this
Schedule under Article 15 of the Master
Agreement upon prior Thirty (30) days written
notice by the Customer's City Manager.
12. Public Records. The Company
understands that the public shall have access, as
required by law, to Customer related documents
created pursuant to or directly to this Agreement
including without limitation data, and non-exempt
public records as defined by Florida Statues,
subject to the provisions of Chapter 119, Florida
Statutes, and agrees to allow such access by the
Customer and the public to all documents subject
to mandatory disclosure under applicable law.
13. Compliance With All Laws
Applicable. The Company accepts this
Schedule and hereby acknowledges that the
Company's compliance with all applicable federal,
state and local laws, ordinances, regulations,
permits and similar approvals is a requirement of
this Schedule, and the Company shall comply
there with as the same presently exist and as
they may be amended hereafter.
14. Ownership Of Improvements.
Except as provided in Section 12.01 of the Master
Agreement, as of the effective date of this
Schedule and thereafter all improvements shall
be vested to the Customer. Furthermore, title to
all ECOs made in or to the Service Locations,
whether or not by or at the expense of the
Company, shall, unless otherwise provided by
written agreement or by Section 12.01 of the
Master Agreement, immediately upon the
completion of the Schedule become the property
of the City and shall remain in custody,
possession and control of the Customer which
the Company will promptly convey as is
warranted or requested.
15. Accounting Records. All records
and accounts created pursuant or directly related
to reimbursable costs under this Schedule,
including invoices, bank statements or duplicate
deposit slips, and all other supporting records
created pursuant or directly related to this
Schedule, shall be available for inspection and
audit by the City and its duly authorized agents or
representatives during business hours, and shall
be maintained in accordance with generally
accepted accounting principles. The Company
recognizes shall keep and preserve, or cause to
be kept and preserved, said records for not less
than thirty-six (36) months after the termination or
expiration of this Schedule. For the same period
of time, the Company shall also retain copies of
all sales and tax returns covering its operations
under this Schedule at the designated Service
Locations, in its local office of operations, and any
other governmental tax or other returns, which
show the Company's reasonable costs, fees and
expenses therein which directly related to this
Schedule, and shall, upon demand, deliver
photographic copies thereof to the Customer at
no cost.
The Company will cooperate with the Customer's
internal auditors and/or such other auditors
designated by the Customer in order to facilitate
the City's examination of records and accounts
created pursuant or directly related to this
Schedule.
IN WITNESS WHEREOF, the Parties hereto have executed this Schedule by and through their duly
authorized representatives as of the date first hereinabove written.
THE COMPANY:
FPL Services, LLC
By: Sam Forrest
Its: Vice -President
THE CUSTOMER:
City of Miami
By: Tony Crapp.
Its: City Manager
Attest:
Priscilla A. Thompson
City Clerk
Approved as to insurance requirements: Approved as to legal form and correctness:
Gary Reshefsky, Director
Risk Management Division,
Julie O. Bru
City Attorney
SCHEDULE E
APPENDIX I - APPROVED ECOs
Refer to City of Miami Phase 2 — IGA
Dated TBD 2011
Note: Energy Conservation Opportunities (ECOs) to be implemented will be determined based on the
results of the Feasibility Study (Schedule C) and the City Manager approval of recommended ECOs.
SCHEDULE E
APPENDIX 1I - SERVICE SPECIFICATIONS
Refer to City of Miami Phase 2 — IGA
Dated TBD 2011
Note: Service specifications to be determined based on the results of the Feasibility Study (Schedule C)
and the City Manager approval of recommended ECOs.
SCHEDULE E
APPENDIX III — DRAW SCHEDULE
Payment Milestone
Design and Development of IGA
30% Completion of Construction
75% Completion of Construction
90% Completion of Construction
Execution of Certificate of Final Acceptance
Total
Amount Due
For purposes of this Draw Schedule, the percentage of completion of construction set forth above will be
based on the percentage of completion of construction as set forth by actual invoices and mutually
agreed upon between the Company and Customer.
Note: Total cost to be determined based on the results of the Feasibility Study (Schedule C) and the City
Manager approval of recommended ECOs.
SCHEDULE E
APPENDIX IV — Preliminary Construction Schedule
TBD
Note: Construction schedule to be determined based on the results of the Feasibility Study (Schedule C)
and the City Manager approval of recommended ECOs.
SCHEDULE E
APPENDIX V — Termination Schedule
Description Cost
Feasibility Study TBD
Mobilization Fees TBD
Month 1 -- Major Material TBD
Month 2 -- Labor, Misc Material TBD
Month 3 -- Labor, Misc Material TBD
Month 4 -- Labor, Misc Material TBD
Month 5 -- Labor, Misc Material TBD
Month 6 -- Labor, Misc Material TBD
Month 7 -- Labor, Misc Material TBD
Month 8 -- Labor, Misc Material TBD
Month 9 -- Labor, Misc Material TBD
Month 10 -- Labor, Misc Material TBD
Month 11 -- Labor, Misc Material TBD
Total Project Cost TBD
Note: Costs for termination schedule to be determined based on the results of the Feasibility Study
(Schedule C) and the City Manager approval of recommended ECOs.
SCHEDULE E
APPENDIX VI — SPECIAL TERMS AND CONDITIONS FOR CITY OF MIAMI EECBG AWARD
SPECIAL TERMS AND CONDITIONS FOR WORK FUNDED UNDER AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (ARRA)
Table of Contents
Number Subject
1. RESOLUTION OF CONFLICTING CONDITIONS 1
2. AWARD AGREEMENT TERMS AND CONDITIONS 1
3. ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS 1
4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD
APPLICATION FOR PAYMENTS (ASAP) SYSTEM 1
5. CEILING ON ADMINISTRATIVE COSTS 2
6. LIMITATIONS ON USE OF FUNDS 2
7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE 2
8. PRE -AWARD COSTS 2
9. USE OF PROGRAM INCOME 2
10. STATEMENT OF FEDERAL STEWARDSHIP 2
I I. SITE VISITS 3
12. REPORTING REQUIREMENTS 3
13. PUBLICATIONS 3
14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS 3
15. LOBBYING RESTRICTIONS 4
16. STAGED DISBURSEMENT 4
17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS 4
18. HISTORIC PRESERVATION 5
19. WASTE STREAM 5
20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS 6
21. SUBCONTRACT/SUBGRANT APPROVALS 6
22. ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED ENERGY
IMPROVEMENT PROGRAMS 6
23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009 (May 2009) 7
24. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERY ACT 10
25. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND
PRODUCTS -- SENSE OF CONGRESS 11
26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS —
SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 11
27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS
(COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 13
28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT 17
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF
FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING
SUBRECIPIENTS 17
30. DAVIS-BACON ACT REQUIREMENTS 18
Company ("contractor" hereunder) shall perform all Services of this Schedule in conformance with the following
requirements imposed upon Customer ("Recipient" hereunder) with respect to any portion of the Services funded
under the ARRA:
1. RESOLUTION OF CONFLICTING CONDITIONS
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the DOE Award Administrator for guidance.
2. AWARD AGREEMENT TERMS AND CONDITIONS
This award/agreement consists of the Assistance Agreement, plus the following:
a. Special Terms and Conditions.
b. Attachments:
Attachment Number Title
1. Statement of Project Objectives
2. Federal Assistance Reporting Checklist and Instructions
3. Budget Pages (SF 424A)
c. DOE Assistance Regulations, 10 CFR Part 600 at http://ecfr.apoaccess.gov.
d. Application/proposal as approved by DOE.
e. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at
http://manaaement.energy.gov/business doe/1374.htm.
3. ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS
Acknowledgement of award documents by the Recipient's authorized representative through electronic
systems used by the Department of Energy, specifically FedConnect, constitutes the Recipient's acceptance
of the terms and conditions of the award. Acknowledgement via FedConnect by the Recipient's authorized
representative constitutes the Recipient's electronic signature.
4. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED
STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM
a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP
system.
b. Requesting Advances. Requests for advances must be made through the ASAP system. You may submit
requests as frequently as required to meet your needs to disburse funds for the Federal share of project
costs. If feasible, you should time each request so that you receive payment on the same day that you
disperse funds for direct project costs and the proportionate share of any allowable indirect costs. If same -
day transfers are not feasible, advance payments must be as close to actual disbursements as
administratively feasible.
c. Adjasting payment requests for available cash. You must disburse any funds that are available from
repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract
settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting
additional cash payments from DOE.
d. Payments. All payments are made by electronic funds transfer to the bank account identified on the ASAP
Bank Information Form that you filed with the U.S. Department of Treasury.
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5. CEILING ON ADMINISTRATIVE COSTS
a. Local government and Indian Tribe Recipients may not use more than 10 percent of amounts provided •
under this program, or $75,000, whichever is greater (EISA Sec 545 (b)(3)(A)), for administrative
expenses, excluding the costs of meeting the reporting requirements under Title V, Subtitle E of EISA.
These costs should be captured and summarized for each activity under the Projected Costs Within Budget:
Administration.
b.
Recipients are expected to manage their administrative costs. DOE will not amend an award solely to
provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on this
project for any final administrative costs that are in excess of the designated 10 percent administrative cost
ceiling. In addition, the Recipient shall neither count costs in excess of the administrative cost ceiling as
cost share, nor allocate such costs to other federally sponsored project, unless approved by the Contracting
Officer.
6. LIMITATIONS ON USE OF FUNDS
a. By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, for gambling establishments, aquariums, zoos, golf courses or swimming
pools.
b. Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided
or $250,000, whichever is greater (EISA Sec 545 (b)(3)(B)), for the establishment of revolving loan funds.
c. Local government and Indian tribe Recipients may not use more than 20 percent of the amounts provided
or $250,000, whichever is greater (EISA Sec 545 (b)(3)(C)), for subgrants to nongovernmental
organizations for the purpose of assisting in the implementation of the energy efficiency and conservation
strategy of the eligible unit of local government or Indian tribe.
7. INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE
The budget for this award does not include indirect costs or fringe benefits. Therefore, these expenses shall
not be charged to nor reimbursement requested for this project nor shall the indirect and fringe benefit costs
from this project be allocated to any other federally sponsored project. In addition, indirect costs or fringe
benefits shall not be counted as cost share unless approved by the Contracting Officer. This restriction does not
apply to sub-awardees' indirect or fringe benefit costs.
8. PRE -AWARD COSTS
You are entitled to reimbursement for costs incurred on or after February 17, 2009, as authorized by the pre -
award costs letter dated August 20, 2009, if such costs are allowable in accordance with the applicable Federal
cost principles referenced in 10 CFR Part 600.
9. USE OF PROGRAM INCOME
If you earn program income during the project period as a result of this award, you may add the program
income to the funds committed to the award and used to further eligible project objectives.
10. STATEMENT OF FEDERAL STEWARDSHIP
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DOE will exercise normal Federal stewardship in overseeing the project activities performed under this award.
Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and
financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to
correct deficiencies which develop during the project; assuring compliance with terms and conditions; and
reviewing technical performance after project completion to ensure that the award objectives have been
accomplished.
11. SITE VISITS
DOE's authorized representatives have the right to make site visits at reasonable times to review project
accomplishments and management control systems and to provide technical assistance, if required. You must
provide, and must require your sub-awardees to provide, reasonable access to facilities, office space, resources,
and assistance for the safety and convenience of the government representatives in the performance of their
duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or
delay the work.
12. REPORTING REQUIREMENTS
a. Requirements. The reporting requirements for this award are identified on the Federal Assistance
Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting
requirements is considered a material noncompliance with the terms of the award. Noncompliance may
result in withholding of future payments, suspension or termination of the current award, and withholding
of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory
performance of this and/or other financial assistance awards, may also result in a debarment action to
preclude future awards by Federal agencies.
b. Additional Recovery Act Reporting Requirements are found in the Provision below labeled: "REPORTING
AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT."
13. PUBLICATIONS
a. You are encouraged to publish or otherwise make publicly available the results of the work conducted
under the award.
b. An acknowledgment of DOE support and a disclaimer must appear in the publication of any material,
whether copyrighted or not, based on or developed under this project, as follows:
Acknowledgment: "This material is based upon work supported by the Department of Energy
[National Nuclear Security Administration] [add name(s) of other agencies, if applicable] under Award
Number(s) [enter the award number(s)]."
Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United
States Government. - Neither the United States Government nor any agency thereof, nor any of their
employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for
the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed,
or represents that its use would not infringe privately owned rights. Reference herein to any specific
commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by the United States
Government or any agency thereof. The views and opinions of authors expressed herein do not
necessarily state or reflect those of the United States Government or any agency thereof."
14. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS
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You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes, and
regulations for work performed under this award.
15. LOBBYING RESTRICTIONS
By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters
pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913.
This restriction is in addition to those prescribed elsewhere in statute and regulation.
16. STAGED DISBURSEMENT
a. The total funding allocation for this award, shown in Block 12 of the Assistance Agreement, will be
obligated in full with this action; however, funds will be released according to a staged disbursement
schedule. All funds must be expended within 36 months of the effective date of the award.
1. The initial disbursement of funds is 50% of the total funding allocation. The amount identified on
Page 2 of the Assistance Agreement will be released to the Recipient to begin work on the approved
activities listed in the Statement of Project Objectives. If conditions are included in the terms and
conditions of this award, upon satisfying the conditions, the Contracting Officer will lift the funding
restrictions associated with the conditions and release the remainder of the initial disbursement of
funds.
2. Project performance will be monitored and corrective action taken, as necessary to ensure acceptable
performance under this award. After one or more progress reviews, in which the Recipient must
demonstrate that it has made satisfactory progress on its activities; expended funds appropriately;
complied with reporting requirements; and created jobs, the Contracting Officer will approve the
release of the remaining balance of the total funding allocation.
b. No additional funds will be disbursed to the Recipient for payment, and DOE does not guarantee or assume
any obligation to reimburse costs incurred by the Recipient, until the requirements of each progress review
are met. Failure by the Recipient to demonstrate acceptable performance under this award will be deemed
a noncompliance pursuant to 10 CFR 600. If a noncompliance occurs, the Contracting Officer may
unilaterally terminate or suspend this award and deobligate the amounts obligated. In such case, the
Recipient shall not be reimbursed for costs incurred at the Recipient's risk, as described above.
17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
You are restricted from taking any action using Federal funds, which would have an adverse effect on the
environment or limit the choice of reasonable alternatives prior to DOE providing either a NEPA clearance or a
final NEPA decision regarding this project.
If you move forward with activities that are not authorized for Federal funding by the DOE Contracting Officer
in advance of the final NEPA decision, you are doing so at risk of not receiving Federal funding and such costs
may not be recognized as allowable cost share.
DOE has made a conditional NEPA determination for this award, and funding for certain activities or tasks
under this award is contingent upon the final NEPA determination.
Miami Green Lab
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Prohibited actions include: Demolition, construction, removal, installation or disposal activities, until such time
that Recipient complies with the Waste Stream and Historic Preservation clauses.
This restriction does not preclude Recipient from: (1) purchasing any necessary equipment or related materials;
or (2) conducting assessments, studies and other related administrative work.
Recipient shall ensure the safety and structural integrity of any repair, replacement, construction and/or
alteration performed under this project.
The NEPA determination for the Miami Green Lab applies only to Energy Efficiency retrofits and upgrades.
Recipient is restricted from distributing Federal funds on any other activities pending: (1) further submission by
Recipient specifically identifying all activities authorized under this Program; and (2) a final NEPA
determination from DOE regarding those activities.
Energy Efficiency Retrofits in Existing City -Owned Buildings
Prohibited actions include: Demolition, construction, removal, installation or disposal activities, until such time
that Recipient complies with the Waste Stream and Historic Preservation clauses.
This restriction does not preclude Recipient from: (1) purchasing any necessary equipment or related materials;
or (2) conducting assessments, studies and other related administrative work.
Recipient shall ensure the safety and structural integrity of any repair, replacement, construction and/or
alteration performed under this project.
18. HISTORIC PRESERVATION
Prior to the expenditure of Federal funds to alter any structure or site, the Recipient is required to comply with
the requirements of Section 106 of the National Historic Preservation Act (NHPA), consistent with DOE's 2009
letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in
or eligible for listing in the National Register of Historic Places. In order to fulfill the requirements of Section
106, the recipient must contact the State Historic Preservation Officer (SHPO), and, if applicable, the Tribal
Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR Part 800.
SHPO contact information is available at the following link: http://www.ncshno.org/fmd/index.htm. THPO
contact information is available at the following link: http://www.nathpo.org/map.html
Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid taking any action that
results in an adverse effect to historic properties pending compliance with Section 106.
Recipients should be aware that the DOE Contracting Officer will consider the recipient in compliance with
Section 106 of the NHPA only after the Recipient has submitted adequate background documentation to the
SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the Recipient that it does
not object to its Section 106 finding or determination. Recipient shall provide a copy of this concurrence to the
Contracting Officer.
19. WASTE STREAM
Prior to the expenditure of Federal funds to dispose of sanitary or hazardous waste, the Recipient is required to
provide documentation to the Project Officer demonstrating that it has prepared a disposal plan for sanitary or
hazardous waste generated by the proposed activities. Sanitary or hazardous waste includes, but is not limited
to, old light bulbs, lead ballasts, piping, roofing material, discarded equipment, debris, asbestos, etc.
5
The DOE Contracting Officer shall consider compliance with this clause complete only after the Recipient has
submitted adequate documentation to DOE for its review, and DOE has provided written approval to the
Recipient of its proposed plan to dispose of its sanitary or hazardous waste.
20. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS
Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have
any obligation to the Recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the
Recipient's facilities, or (ii) any costs which may be incurred by the Recipient in connection with the D&D of
any of its facilities due to the performance of the work under this Agreement, whether said work was performed
prior to or subsequent to the effective date of the Agreement.
21. SUBCONTRACT/SUBGRANT APPROVALS
a. In the original application, the subcontractor(s)/subgrantee(s) were not proposed by the recipient. In order
to receive reimbursement for the costs associated with subcontractors/activities listed in the approved
Statement of Project Objectives (SOPO), each subcontractlsubgrant must be approved by the DOE
Contracting Officer.
b. Upon the recipient's selection of the subcontractor(s)/subgrantee(s), and within 180 days of the award date
in Block 27 of the Assistance Agreement, the recipient shall provide the following information for each,
regardless of dollar amount:
Name
DUNS Number
Award Amount
Statement of work including applicable activities
EF-1 for all proposed activities
c. In addition to the information in paragraph b. above, for each subcontractisubgrant that has an estimated
cost greater than 25% of the Total Allocation or $1,000,000, whichever is less, the recipient must submit a
Statement of Objectives, SF424A Budget Information — Nonconstruction Programs, and Budget
Justification. The DOE Contracting Officer may require additional information concerning these
subcontract(s)/subgrant(s) prior to providing written approval.
d. No funds shall be expended on the subcontracts supporting the activities listed in the approved SOPO until
DOE approval is provided. DOE does not guarantee or assume any obligation to reimburse costs incurred
by the Recipient or subcontractor for these activities, until approval is provided in writing by the
Contracting Officer.
e. Upon written approval by the Contracting Officer, the Recipient may then receive payment for the
activities listed in the approved SOPO for allowable costs incurred in accordance with the payment
provisions contained in the Special Terms and Conditions of this agreement.
22. ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED
ENERGY IMPROVEMENT PROGRAMS
The parties recognize that the Recipient may use funds under this award for Property -Assessed Clean Energy
(PACE) loans, Sustainable Energy Municipal Financing, Clean Energy Assessment Districts, Energy Loan Tax
Assessment Programs (ELTAPS), or any other form or derivation of Special Taxing District whereby taxing
entities collect payments through increased tax assessments for energy efficiency and renewable energy
building improvements made by their constituents. The Department of Energy intends to publish "Best
Practices" or other guidelines pertaining to the use of funds made available to the Recipient under this award
6
pertaining to the programs identified herein. By accepting this award, the Recipient agrees to incorporate, to the
maximum extent practicable, those Best Practices and other guidelines into any such program(s) within a
reasonable time after notification by DOE that the Best Practices or guidelines have been made available. The
Recipient also agrees, by its acceptance of this award, to require its sub -recipients to incorporate to the
maximum extent practicable the best practices and other guideline into any such program used by the sub -
recipient.
23. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009)
Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to
preserve and create jobs and promote economic recovery, assist those most impacted by the recession, provide
investments needed to increase economic efficiency by spurring technological advances in science and health,
invest in transportation, environmental protection, and other infrastructure that will provide long-term economic
benefits, stabilize State and local government budgets, in order to minimize and avoid reductions in essential
services and counterproductive State and local tax increases. Recipients shall use grant funds in a manner that
maximizes job creation and economic benefit.
The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance,
accountability, transparency, data collection and resources as specified in Act itself and as discussed below.
Recipients should begin planning activities for their first tier sub -recipients, including obtaining a DUNS
number (or updating the existing DUNS record), and registering with the Central Contractor Registration
(CCR).
Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete
projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act
and related guidance. For projects funded by sources other than the Recovery Act, Contractors must keep
separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act.
The Government has not fully developed the implementing instructions of the Recovery Act, particularly
concerning specific procedural requirements for the new reporting requirements. The Recipient will be
provided these details as they become available. The Recipient must comply with all requirements of the Act.
If the recipient believes there is any inconsistency between ARRA requirements and current award terms and
conditions, the issues will be referred to the Contracting Officer for reconciliation.
Definitions
For purposes of this clause, Covered Funds means funds expended or obligated from appropriations under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5. Covered Funds will have special accounting
codes and will be identified as Recovery Act funds in the grant, cooperative agreement or TIA and/or
modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015.
Non -Federal employer means any employer with respect to covered funds -- the contractor, subcontractor,
grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer;
and any professional membership organization, certification of other professional body, any agent or licensee of
the Federal government, or any person acting directly or indirectly in the interest of an employer receiving
covered funds; or with respect to covered funds received by a State or local government, the State or local
government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or
subcontractor of the State or local government; and does not mean any department, agency, or other entity of
the federal government.
Recipient means any entity that receives Recovery Act funds directly from the Federal government (including
Recovery Act funds received through grant, loan, or contract) other than an individual and includes a State that
receives Recovery Act Funds.
Special Provisions
A. Flow Down Requirement
Recipients must include these special terms and conditions in any subaward,
B. Segregation of Costs
Recipients must segregate the obligations and expenditures related to funding under the Recovery Act,
Financial and accounting systems should be revised as necessary to segregate, track and maintain these
funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be
commingled with any other funds or used for a purpose other than that of making payments for costs
allowable for Recovery Act projects.
C. Prohibition on Use of Funds
None of the funds provided under this agreement derived from the American Recovery and Reinvestment
Act of 2009, Pub. L. 1 1 1-5, may be used by any State or local government, or any private entity, for any
casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool.
D. Access to Records
With respect to each financial assistance agreement awarded utilizing at least some of the funds
appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, Pub.
L. 1 1 1-5, any representative of an appropriate inspector general appointed under section 3 or 8G of the
Inspector General Act of 1988 (5 U.S.C. App.) or of the Comptroller General is authorized --
(1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any
State or local agency administering such contract that pertain to, and involve transactions that relate to, the
subcontract, subcontract, grant, or subgrant; and
(2) to interview any officer or employee of the contactor, grantee, subgrantee, or agency regarding such
transactions.
E. Publication
An application may contain technical data and other data, including trade secrets and/or privileged or
confidential information, which the applicant does not want disclosed to the public or used by the
Government for any purpose other than the application. To protect such data, the applicant should
specifically identify each page including each line or paragraph thereof containing the data to be protected
and mark the cover sheet of the application with the following Notice as well as referring to the Notice on
each page to which the Notice applies:
Notice of Restriction on Disclosure and Use of Data
The data contained in pages ---- of this application have been submitted in confidence and contain trade
secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes,
provided that if this applicant receives an award as a result of or in connection with the submission of this
application, DOE shall have the right to use or disclose the data here to the extent provided in the award.
This restriction does not limit the Government's right to use or disclose data obtained without restriction
from any source, including the applicant.
Information about this agreement will be published on the Internet and linked to the website
www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude
8
posting contractual or other information on the website on a case -by -case basis when necessary to protect
national security or to protect information that is not subject to disclosure under sections 552 and 552a of
title 5, United States Code.
F. Protecting State and Local Government and Contractor Whistleblowers.
The requirements of Section 1553 of the Act are summarized below. They include, but are not limited to:
Prohibition on Reprisals: An employee of any non -Federal employer receiving covered funds under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may not be discharged, demoted, or
otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary
course of an employee's duties, to the Accountability and Transparency Board, an inspector general, the
Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a
person with supervisory authority over the employee (or other person working for the employer who has
the authority to investigate, discover or terminate misconduct), a court or grant jury, the head of a Federal
agency, or their representatives information that the employee believes is evidence of:
- gross management of an agency contract or grant relating to covered funds;
- a gross waste of covered funds;
- a substantial and specific danger to public health or safety related to the implementation or use of covered
funds;
- an abuse of authority related to the implementation or use of covered funds; or
- as violation of law, rule, or regulation related to an agency contract (including the competition for or
negotiation of a contract) or grant, awarded or issued relating to covered funds.
Agency Action: Not later than 30 days after receiving an inspector general report of an alleged reprisal, the
head of the agency shall determine whether there is.sufficient basis to conclude that the non -Federal
employer has subjected the employee to a prohibited reprisal. The agency shall either issue an order
denying relief in whole or in part or shall take one or more of the following actions:
- Order the employer to take affirmative action to abate the reprisal.
- Order the employer to reinstate the person to the position that the person held before the reprisal, together
with compensation including back pay, compensatory damages, employment benefits, and other terms and
conditions of employment that would apply to the person in that position if the reprisal had not been taken.
- Order the employer to pay the employee an amount equal to the aggregate amount of all costs and
expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the
employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the
head of a court of competent jurisdiction.
Nonenforceability of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as
provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by
this section may not be waived by any agreement, policy, form, or condition of employment, including any
predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it
requires arbitration of a dispute arising out of this section.
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall post notice of the rights and
remedies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act of
2009, Pub. L. 111-5, www.Recovery.gov, for specific requirements of this section and prescribed language
for the notices.).
G. Reserved
H. False Claims Act
Recipient and sub -recipients shall promptly refer to the DOE or other appropriate Inspector General any
9
credible evidence that a principal, employee, agent, contractor, sub -grantee, subcontractor or other person
has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of
laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those funds.
1. Information in Support of Recovery Act Reporting
Recipient may be required to submit backup documentation for expenditures of funds under the Recovery
Act including such items as timecards and invoices. Recipient shall provide copies of backup
documentation at the request of the Contracting Officer or designee.
J. Availability of Funds
Funds obligated to this award are available for reimbursement of costs until 36 months after the award date.
K. Additional Funding Distribution and Assurance of Appropriate Use of Funds
Certification by Governor — For funds provided to any State or agency thereof by the American
Reinvestment and Recovery Act of 2009, Pub. L. 111-5, the Governor of the State shall certify that: I) the
state will request and use funds provided by the Act; and 2) the funds will be used to create jobs and
promote economic growth.
Acceptance by State Legislature -- If funds provided to any State in any division of the Act are not accepted
for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent
resolution, shall be sufficient to provide funding to such State.
Distribution -- After adoption of a State legislature's concurrent resolution, funding to the State will be for
distribution to local governments, councils of government, public entities, and public -private entities within
the State either by formula or at the State's discretion.
L. Certifications
With respect to funds made available to State or local governments for infrastructure investments under the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, the Governor, mayor, or other chief
executive, as appropriate, certified by acceptance of this award that the infrastructure investment has
received the full review and vetting required by law and that the chief executive accepts responsibility that
the infrastructure investment is an appropriate use of taxpayer dollars. Recipient shall provide an
additional certification that includes a description of the investment, the estimated total cost, and the
amount of covered funds to be used for posting on the Internet. A State or local agency may not receive
infrastructure investment funding from funds made available by the Act unless this certification is made
and posted.
24. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF
THE RECOVERY ACT
(a) This award requires the recipient to complete projects or activities which are funded under the American
Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act funds provided
through this award. Information from these reports will be made available to the public.
(b) The reports are due no later than ten calendar days after each calendar quarter in which the Recipient
receives the assistance award funded in whole or in part by the Recovery Act.
10
(c) Recipients and their first -tier subrecipients must maintain current registrations in the Central Contractor
Registration (http://www.ccr.gov) at all times during which they have active federal awards funded with
Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System (DUNS) Number
(http://www.dnb.com) is one of the requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section 1512(c) of the Recovery Act using the
reporting instructions and data elements that will be provided online at http://www.FederalReporting.gov and
ensure that any information that is pre -filled is corrected or updated as needed.
25. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE
EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with
funds made available under this award should be American -made.
*Special Note: Definition of the Provisions entitled, "REQUIRED USE OF AMERICAN IRON, STEEL, AND
MANUFACTURED GOODS — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT
ACT OF 2009" and "REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS
(COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009" will be done upon definition and review of final
activities.
26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED
GOODS - SECTION 1605 OF THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009
(a) Definitions. As used in this award term and condition—
(1) Manufactured good means a good brought to the construction site for incorporation into the building or
work that has been—
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than the properties of the
individual raw materials.
(2) Public building and public work means a public building of, and a public work of, a governmental entity
(the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the
United States; State and local governments; and multi -State, regional, or interstate entities which have
governmental functions). These buildings and works may include, without limitation, bridges, dams, plants,
highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators,
railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and
canals, and the construction, alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may
include other elements.
(b) Domestic preference. (1) This award term and condition implements Section 1605 of the American
Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, and
11
manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3)
and (b)(4) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
To Be Determined
(3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of
this section and condition if the Federal Government determines that—
(i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic
iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material
will increase the cost of the overall project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient
and reasonably available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public
interest.
(c) Request for determination of inapplicability of Section 1605 of the Recovery Act . (1)(i) Any recipient
request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(3) of this section
shall include adequate information for Federal Government evaluation of the request, including —
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in
accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost
comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the
construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably
foresee the need for such determination and could not have requested the determination before the funds were
12
obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction,
alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award
official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When
the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of
the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with
acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception
is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the
award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.I 10(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies,
use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the American
Recovery and Reinvestment Act.
(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the
Recipient shall include the following information and any applicable supporting data based on the survey of
suppliers:
Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item 1:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 2:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED
GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
13
(a) Definitions. As used in this award term and condition —
Designated country— (1) A World Trade Organization Government Procurement Agreement country (Aruba,
Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic,
Slovenia, Spain, Sweden, Switzerland, and United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican
Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
or
(3) A United States -European Communities Exchange of Letters (May 15, 1995) country: Austria, Belgium,
Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic,
Slovenia, Spain, Sweden, and United Kingdom.
Designated country iron, steel, and/or manufactured goods — (1) Is wholly the growth, product, or
manufacture of a designated country; or
(2) In the case of a manufactured good that consist in whole or in part of materials from another country, has
been substantially transformed in a designated country into a new and different manufactured good distinct
from the materials from which it was transformed.
Domestic iron, steel, and/or manufactured good — (1) Is wholly the growth, product, or manufacture of the
United States; or
(2) In the case of a manufactured good that consists in whole or in part of materials from another country, has
been substantially transformed in the United States into a new and different manufactured good distinct from
the materials from which it was transformed. There is no requirement with regard to the origin of components
or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the
United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not domestic
or designated country iron, steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for incorporation into the building or work
that has been—
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has different properties than the properties of the
individual raw materials.
Public building and public work means a public building of, and a public work of, a governmental entity (the
United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United
States; State and local governments; and multi -State, regional, or interstate entities which have governmental
functions). These buildings and works may include, without limitation, bridges, dams, plants, highways,
parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways,
airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and
the construction, alteration, maintenance, or repair of such buildings and works.
14
Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include
other elements.
(b) Iron, steel, and manufactured goods. (1) The award term and condition described in this section
implements—
(i) Section 1605(a) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act),
by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States;
and
(ii) Section 1605(d), which requires application of the Buy American requirement in a manner consistent with
U.S. obligations under international agreements. The restrictions of section 1605 of the Recovery Act do not
apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section
1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Party to an
international agreement that obligates the recipient to treat the goods and services of that Party the same as
domestic goods and services. This obligation shall only apply to projects with an estimated value of $7,443,000
or more.
(2) The recipient shall use only domestic or designated country iron, steel, and manufactured goods in
performing the work funded in whole or part with this award, except as provided in paragraphs (b)(3) and (b)(4)
of this section.
(3) The requirement in paragraph (b)(2) of this section does not apply to the iron, steel, and manufactured goods
listed by the Federal Government as follows:
To Be Determined
(4) The award official may add other iron, steel, and manufactured goods to the list in paragraph (b)(3) of this
section if the Federal Government determines that—
(i) The cost of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic
iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such
material will increase the overall cost of the project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient
and reasonably available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public
interest.
(c) Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American Act.
(1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph
(b)(4) of this section shall include adequate information for Federal Government evaluation of the request,
including —
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
15
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in
accordance with paragraph (b)(4) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost
comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, or manufactured goods shall include all delivery costs to the construction site and
any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably
foresee the need for such determination and could not have requested the determination before the funds were
obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction,
alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award
official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When
the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of
the award amount, redistribution of budgeted funds, and/or other appropriate actions taken to cover costs
associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis
for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official
shall adjust the award amount or redistribute budgeted funds, as appropriate, by at least the differential
established in 2 CFR I76.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies,
use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or
manufactured goods is noncompliant with the applicable Act.
(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the
applicant shall include the following information and any applicable supporting data based on the survey of
suppliers:
Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item 1:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
I6
Item 2:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY
ACT
(a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and
subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal
Government pursuant to the Recovery Act shall be paid wages at rates not less than those prevailing on projects
of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV
of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of Labor has
issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis -Bacon and related Acts. Regulations in 29
CFR 5.5 instruct agencies concerning application of the standard Davis -Bacon contract clauses set forth in that
section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall
ensure that the standard Davis -Bacon contract clauses found in 29 CFR 5.5(a) are incorporated in any resultant
coveted contracts that are in excess of $2,000 for construction, alteration or repair (including painting and
decorating).
(b) For additional guidance on the wage rate requirements of section 1606, contact your awarding agency.
Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning the
application of Davis -Bacon requirements to a particular federally assisted project to the Federal agency funding
the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14.
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF
EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT
RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS
(a) To maximize the transparency and accountability of funds authorized under the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance with 2
CFR 215.21 "Uniform Administrative Requirements for Grants and Agreements" and OMB Circular A-102
Common Rules provisions, recipients agree to maintain records that identify adequately the source and
application of Recovery Act funds. OMB Circular A-102 is available at
http://www.whitehouse.gov/omblcirculars/a10.2/a102.html.
(b) For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A-133, "Audits of
States, Local Governments, and Non -Profit Organizations," recipients agree to separately identify the
expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards
(SEFA) and the Data Collection Form (SF —SAC) required by OMB Circular A-133. OMB Circular A-133 is
17
available at http://www.whitehouse.gov/omb/circulars/a133/a133.html. This shall be accomplished by
identifying expenditures for Federal awards made under the Recovery Act separately on the SEFA, and as
separate rows under Item 9 of Part 111 on the SF —SAC by CFDA number, and inclusion of the prefix "ARRA"
in identifying the name of the Federal program on the SEFA and as the first characters in Item 9d of Part III on
the SF —SAC.
(c) Recipients agree to separately identify to each subrecipient, and document at the time of subaward and at the
time of disbursement of funds, the Federal award number, CFDA number, and amount of Recovery Act funds.
When a recipient awards Recovery Act funds for an existing program, the information furnished to
subrecipients shall distinguish the subawards of incremental Recovery Act funds from regular subawards under
the existing program.
(d) Recipients agree to require their subrecipients to include on their SEFA information to specifically identify
Recovery Act funding similar to the requirements for the recipient SEFA described above. This information is
needed to allow the recipient to properly monitor subrecipient expenditure of ARRA funds as well as oversight
by the Federal awarding agencies, Offices of Inspector General and the Government Accountability Office.
30. DAVIS-BACON ACT REQUIREMENTS
Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor"
shall mean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the
following definitions.
Recipient means the organization, individual, or other entity that receives an award from DOE and is financially
accountable for the use of any DOE funds or property provided for the performance of the project, and is legally
responsible for carrying out the terms and conditions of the award.
Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for
the use of the funds provided. The term may include foreign or international organizations (such as agencies of
the United Nations).
Davis -Bacon Act
(a) Definition. --"Site of the work"--
(1) Means--
(i) The primary site of the work. The physical place or places where the construction called for in the award will
remain when work on it is completed; and
(ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is
constructed, provided that such site is --
(A) Located in the United States; and
(B) Established specifically for the performance of the award or project;
(2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories,
batch plants, borrow pits, job headquarters, tool yards, etc., provided--
(i) They are dedicated exclusively, or nearly so, to performance of the award or project; and
(ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(I)(i), or
18
the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition;
(3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a
Contractor or subcontractor whose locations and continuance in operation are determined wholly without regard
to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job
headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials
for the project before opening of bids and not on the Project site, are not included in the "site of the work." Such
permanent, previously established facilities are not a part of the "site of the work" even if the operations for a
period of time may be dedicated exclusively or nearly so, to the performance of a award.
(b) (1) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally
and not less often than once a week, and without subsequent deduction or rebate on any account (except such
payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29
CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of
payment computed at rates not less than those contained in the wage determination of the Secretary of Labor
which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work,
regardless of any contractual relationship which may be alleged to exist between the Contractor and such
laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be
effective from the first day on which work under the award was performed at that site and shall be incorporated
without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or
construction subcontractor that are transporting portions of the building or work between the secondary site of
the work and the primary site of the work shall be paid in accordance with the wage determination applicable to
the primary site of the work.
(2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the
Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics,
subject to the provisions of paragraph (e) of this article; also, regular contributions made or costs incurred for
more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the
particular weekly period, are deemed to be constructively made or incurred during such period.
(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the
wage determination for the classification of work actually performed, without regard to skill, except as provided
in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked
therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in
which work is performed.
(4) The wage determination (including any additional classifications and wage rates conformed under paragraph
(c) of this article) and the Davis -Bacon poster (WH-132I) shall be posted at all times by the Contractor and its
subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the
workers.
(c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the
wage determination and which is to be employed under the award shall be classified in conformance with the
wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe
benefits therefore only when all the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage
determination.
(ii) The classification is utilized in the area by the construction industry.
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
19
(2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives and the Contracting Officer agree on the classification and wage rate (including the amount
designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting
Officer to the Administrator of the:
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Washington, DC 20210
The Administrator or an authorized representative will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise the Contracting Officer or will notify the
Contracting Officer within the 30-day period that additional time is necessary.
(3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their
representatives, and the Contracting Officer do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the
questions, including the views of all interested parties and the recommendation of the Contracting Officer, to
the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will
notify the Contracting Officer within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2)
and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from
the first day on which work is performed in the classification.
(d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a
fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the
wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof,
(e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as
part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written
request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of
Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under
the plan or program.
Rates of Wages - Prior Approval for Proceeding with Davis -Bacon Construction Activities
If the Recipient determines at any time that any construction, alteration, or repair activity as defined by 29 CFR
5.2(j) (http://cfr.vlex.com/vid/5-2-definitions-19681309) will be performed during the course of the project, the
Recipient shall request approval from the Contracting Officer prior to commencing such work. If the
Contracting Officer concurs with the Recipient's determination, the Recipient must receive Contracting Officer
approval to proceed with such activity, and must comply with all applicable Davis -Bacon requirements, prior to
commencing such work. A modification to the award which incorporates the appropriate Davis -Bacon wage
rate determination(s) will constitute the Contracting Officer's approval to proceed. If the Contracting Officer
does not concur with the Recipient's determination, the Contracting Officer will so notify the Recipient in
writing.
20