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HomeMy WebLinkAbout05.F- City Manager I RESOLUTION(ID# 1674) DOC ID: 1674 A CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract Amendment From: Charles McNeely M/CC Meeting Date: 03/19/2012 Prepared by: Heidi Aten, (909) 384-5122 Dept: City Manager Ward(s): All Subject: Resolution of the Mayor and Common Council of the City of San Bernardino to Execute an Amendment to the Professional Services Agreement by and Between the City of San Bernardino and Willdan Engineering Services for the Design and Implementation of a Residential Energy Audit and Retrofit Program. Financial Impact: The City received a direct allocation of$1,954,600 in EECBG funds of which$600,000 was allocated towards the implementation of the Residential Energy Audit Retrofit Rebate Program by Willdan. An amendment increase to the Professional Service Agreement with Willdan will bring the total budget to $673,106. There are no matching funds required by the City. There is no impact to the General Fund. © Motion: Adopt Resolution Synopsis of Previous Council Action: June 20, 2011- Mayor and Common Council authorized the City Manager to enter into a professional services contract with Willdan Engineering in association with the CSI Company for the performance of the Residential Energy Audit and Retrofit Program for the duration of 19 months or until the$600,000 allocated for this program are exhausted. Backeround: On February 17, 2009, President Barack Obama signed into law the American Recovery and Reinvestment Act (ARRA) of 2009. One of the programs receiving funding from ARRA is the Energy Efficiency&Conservation Block Grant(EECBG)Program. The EECBG provides grants to U.S. local governments, states,territories, and Indian tribes to fund projects that reduce energy use and fossil fuel emissions and improve energy efficiency. The City of San Bernardino received a direct allocation of$1,954,000 from the Department of Energy. The City Council appropriated $600,000 of the EECBG funds to Willdan Engineering for the design and implementation of a residential energy audit and retrofit rebate program. The City Updated: 3/15/2012 by Sabdi Sanchez A 1674 entered into this Professional Services Agreement on June 21, 2011, for a period of 19 months (� based on the duration of reporting requirements of the EECBG program. �r In compliance with the provisions of the EECBG program, all funds must be allocated to an approved project by March 19, 2012, any leftover grant funds must be returned to the Department of Energy (DOE). Council approval is needed to transfer the remaining $73,106 from the parking structure lighting retrofit project to the residential energy audit and retrofit rebate program. An amendment increase to the Professional Service Agreement with Willdan for the implementation of the residential energy audit and retrofit rebate program will bring the total Willdan budget to$673,106. City Attorney Review: Supportine Documents: Amendment No 1 to 2011 Agmt-Wildan-2012 (DOCX) Amended Budget Exhibit B (PDF) 2011-138 existing agreement (PDF) Willdan Contract.Amendment Resolution (DOCX) Updated:3/15/2012 by Sabdi Sanchez A Packet Pg. 118 AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WILLDAN ENGINEERING FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT RETROFIT REBATE PROGRAM WHEREAS, on February 17, 2009, President Barack Obama signed into law the American Recovery and Reinvestment Act(ARRA) of 2009; and WHEREAS, one of the programs receiving funding from ARRA is the Energy Efficiency & Conservation Block Grant (EECBG) Program to fund projects that reduce energy use and fossil fuel emissions and improve energy efficiency; and WHEREAS, the EECBG Program received $3.2 billion in nationwide funding, and of that,the City of San Bernardino received a direct allocation of$1,954,000; and WHEREAS, on December 20, 2010 the Mayor and Common Council authorized the creation of a Residential Energy Audit& Retrofit Rebate Program; and WHEREAS, the City of San Bernardino entered into the Professional Services Agreement with Willdan Engineering on June 21, 2011, to perform services over a period of 18 months; and WHEREAS, Council approval is needed to transfer the remaining $73,106 EECBG funds to the Willdan budget for the implementation of the Residential Energy Audit and Retrofit Rebate Program. EECBG funding that is not spent will be returned to the DOE. Now,therefore,the Services Agreement dated June 21,2011,by and between the City of San Bernardino and Willdan Engineering is hereby amended as follows: Section 1. Section 2.1 of the 2011 Agreement is hereby amended as follows: 2.1 Compensation. Over the term of this Agreement, Consultant shall be paid for such services as set forth in Exhibit `B", Budget, which is attached hereto and has been amended to reflect the transfer of leftover funds in the amount of$73,106. AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WILLDAN ENGINEERING FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT RETROFIT REBATE PROGRAM All other terms and conditions contained in the original Services Agreement shall remain in full force and effect. IN WITNESS THEREOF, the authorized parties have signed below; v E v Willdan Engineering CITY OF SAN BERNARDINO a By: By: o U Albert V. Warot Charles McNeely v 3 DATED: 12012 DATED: 12012 r i N O N Approved as to form: ATTEST: g 3 E rn a 0 James F. Penman, City Attorney Georgeann Hanna,City Clerk o 0 Z c d E v d E DATED: 12012 c v E s u Q Packet Pg. 120 Amended Exhibit B Budget The Scope of Services identified in Exhibit"A"shall be provided in accordance with the Following budget. TASKS BUDGET d Administration, Design Development and Implementation v E Tier 1 Audits to be provided by CAP $0.00 a u m Tier 2 Audits $154,007.50 0 U Tier 2 Retrofit Rebates $367,818.50 a Pre-Audit, Post-Audit and Post- Retrofit and Training Services $25,320.00 3 Rebate Payment Processing $8,676.59 O Program/Project Measurement, m Tracking and Reporting $68,863.15 a L Subtotal $624,685.74 w m Marketingo o m Branding $9,000.00 a d a c Marketing and Communications Plan $11,600.00 E Multicultural Services $2,500.00 E Website $2.000.00 Marketing Collateral $5,000.00 a Community Outreach (participants, professionals, part nershi s) $18,300.00 Subtotal $48,420.00 Total All Tasks $673,105.74 © 1 RESOLUTION NO. 2011-138 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA 3 BERNARDINO AUTHORIZING THE CITY MANAGER TO ENTER INTO PROFESSIONAL SERVICES AGREEMENT WITH WILLDAN ENGINEERIN 4 SERVICES FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL 5 ENERGY AUDIT AND RETROFIT PROGRAM. 6 WHEREAS, On February 17, 2009 President Barack Obama signed into law the 7 American Recovery and Reinvestment Act(ARRA)of 2009 and, d E v 8 WHEREAS, one of the new programs receiving funding from ARRA is the Energ E 9 Q Efficiency & Conservation Block Grant (EECBG) Program to fund projects that reduce energ 10 c 11 use and fossil fuel emissions and that improve energy efficiency and, u 12 WHEREAS, the EECBG Program received $3.2 billion in nationwide funding, of that i 13 the City of San Bernardino received a direct allocation of$1,954,600 and, v r 14 WHEREAS, on December 20, 2010 the Mayor and Common Council authorized the 15 d creation of a Residential Energy Audit&Retrofit Rebate Program and, 16 m 17 WHEREAS, in March 2010, a request for proposals was released to solicit a highl c 18 qualified firm to develop and implement the program and, " m 19 WHEREAS, of the three responses received, one was deemed to best match the needs o 20 0 the program and is being recommended for approval. 21 w E 22 m 23 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMOfN a COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 24 25 SECTION 1. That the Mayor and Common Council of the City of San Bernardino 26 hereby authorize the City Manager to execute a professional services agreement with Willdan 27 Engineering Services for the development and implementation of a residential energy audit an 28 retrofit rebate program. -1- Packet Pg. 122 im 2011-138 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO ENTER INTO A 2 PROFESSIONAL SERVICES AGREEMENT WITH WILLDAN ENGINEERING 3 SERVICES FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT AND RETROFIT PROGRAM 4 5 SECTION 2. That the Mayor and Common Council of the City of San Bemardin 6 hereby authorize the City Manager, or his designee, to execute any additional document 7 E 8 necessary for the implementation of the program. d E 9 a U 10 C !// v 11 � 12 13 14 Q 15 E a 16 0, 17 18 v 19 20 21 E 22 R 23 24 25 26 27 ' 28 /// V -2 Packet P�. 723 2011-136 l RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO ENTER INTO 2 PROFESSIONAL SERVICES AGREEMENT WITH WILLDAN ENGINEERING FOR 3 THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT AND RETROFIT PROGRAM. 4 5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayo 6 and Common Council of the City of San Bernardino at a J oint regularmeeting thereof,held or c 7 ft] day of June 2011 by the following vote, to wit: £ v c g Council Members: AYES NAYS ABSTAIN ABSENT 9 a MARQUEZ x i 10 c 0 11 VACANT c A 12 BRINKER x 3 13 SHORETT x 14 KELLEY x _ c 15 E JOHNSON x d 16 17 MCCAMMACK x p /7 /� N 18 ,l/-F"At 19 Rachel G. Clark, City Clerk M 20 The foregoing resolution is hereby approved this day of c 21 m June , 2011. r 22 m 23 a atri k J. Morris, la-9br 24 t of San Bernardino 25 Approved as to FORM: 26 By: . 27 1 2g JAMES F. PENMAN, © City Attorney -3- Packet Pg. 124 2011-138 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WILLDAN ENGINEERING FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENBRGY AUDIT& RETROFIT REBATE PROGRAM This Agreement is entered into this 20th day of June,2011 by and between the City of San Bernardino("CITY") and Willdan Engineering("CONSULTANT"). WITNESSETH: A. WHEREAS,City proposes to have Consultant design and implement a residential E energy audit and retrofit rebate program described herein; and d B. WHEREAS,City and Consultant desire to contract for the design and implementation of a residential energy audit and retrofit rebate program and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and, 0 v C. WHEREAS,no official or employee of City has a financial interest,within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this v Agreement. 1 r NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein,the parties hereby agree as follows: d rn 1.0 SERVICES PROVIDED BY CONSULTANT a c 1.1. Scope of Services. CITY hereby engages the CONSULTANT to provide those services as set forth in Exhibit "A," Scope of Services, which is attached hereto and incorporated herein by this reference. 1.2. Professional Practices. All professional services to be provided by ° Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional Consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this a Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. 1.3. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to,those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify, defend, and hold harmless City from and against all claims, 1 Packet Pg. 125 2011-138 demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above- mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, or any other category protected by law, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties — c referred to in Labor Code,Section 1735. m E a 1.5 Non-Exclusive Agreement. Consultant acknowledges that City E may enter into agreements with other Consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to m those services contemplated by this Agreement. 0 U 1.6. Delegation and Assignment. This is a personal services contract, and the duties set forth herein shall not be delegated or assigned to any person or entity v_ without the prior written consent of City. 3 a 1.7. Business License: The Consultant shall obtain and maintain a valid © City Business Registration Certificate during the term of this Agreement. 1.8. Duty of Loyalty/Conflict of Interest: The Consultant understands E v and agrees that in performing plan review services for the City, Consultant shall maintain 2 a fiduciary duty and a duty of loyalty to the City in performing Consultant's obligations m rn under this Agreement. Consultant, in performing its obligations under this Agreement, is E governed by California's conflict of interest laws, Government Code Section 87100 et seq., and Title 2,California Code of Regulations Section 18700 et seq. M 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Consultant shall ° be paid for such services as set forth in Exhibit`B", Budget, which is attached hereto. E E 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the Scope of Services specified in this Agreement unless the City, prior to Consultant performing the additional services, approves such a additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Consultant may submit invoices to City's Community Development Director for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all of Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this 2 2011-138 Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order,where applicable,on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of three(3)years from the Effective Date. 3.0. TIME OF PERFORMANCE 3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or E diligently pursue work to completion may be grounds for termination of this Agreement. w 3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such L acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the 0 reasonable control of a party. a 4.0. TERM AND TERMINATION v 4.1. Term. The services set forth in Exhibit "A" shall be performed over a period of approximately 18 months, commencing on June 21, 2011, and terminating on — �, December 31, 2012, unless previously modified, amended or cancelled by the written mutual E consent of both parties. There may be three one-year extensions of the Agreement upon E mutual agreement of the parties. `v m 4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work 2 contemplated by this Agreement, with or without cause, at any rime, by providing written m notice to Consultant. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City. E 4.3. Comnensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and a including the date of City's written notice of termination. Compensation for work in progress shall be prorated as to the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. 4.4 Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, 3 Packet Pg. 127 2011-138 drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant. 5.0. INSURANCE 5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, — blanket contractual liability, independent Consultants, personal E injury with a policy limit of not less than One Million Dollars c ($1,000,000.00), combined single limits, per occurrence and £ aggregate. a U R (b) Automobile liability for owned vehicles, hired, and non-owned c vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. v 3 (c) Workers' compensation insurance as required by the State of n California. m © (d) Consultant shall obtain professional errors and omissions d ("E&O") liability insurance with policy limits of not less than One d Million Dollars ($1,000,000.00) per claim and Two Million Dollars ($2,000,000) annual aggregate. Consultant shall obtain an Extended Reporting Period Endorsement for 36 months after 5 completion of the work hereunder. " v 5.2. Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: 0 N (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are £ additional insureds with respect to Consultant's performance under this Agreement with City." a (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced,until thirty(30)days after written notice is given to City; ten (10) days notice if cancellation is due to non- payment of premium." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3. Certificates of Insurance. Consultant shall provide to City certificates of 4 2011-138 insurance showing the insurance coverages and required endorsements described above, in a Q form and content approved by City,prior to performing any services under this Agreement. i 5.4. Non-limitine. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property. I j 6.0. GENERAL PROVISIONS 6.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. E a 6.2. Representatives. The Director of Community Development or his/her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this v° Agreement, except as otherwise expressly provided in this Agreement. n Consultant shall designate a representative for purposes of this Agreement 3 who shall be authorized to issue all consents, approvals,directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this ® Agreement. 6.3. Notices. Any notices, documents, correspondence or other v communications concerning this Agreement or the work hereunder may be provided by rn personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such S communication is sent by personal delivery; b) at the time of transmission if such X communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. 0 N IF TO CONSULTANT: IF TO CITY: c Albert V. Warot Margo Wheeler E Willdan Engineering Director of Community Development 13191 Crossroads Parkway North, 300 North"D"Street a Suite 405 Industry,CA 91746 San Bernardino, CA 92418 Fax: (562)463-4488 Fax: 909-384-5080 Tel: (562)908-6200 Tel: 909-384-5357 6.4. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the p^ opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the 5 2011-138 City Attorney and members of his office in connection with that action shall be considered as"attorneys' fees"for the purposes of this Agreement. 6.5. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County,California. 6.6. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or -- encumbrance shall be void and shall constitute a breach of this Agreement and cause for E termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be E performed by Consultant hereunder for the term of this Agreement. a u M 6.7 Indemnification and Hold Harmless. Consultant shall indemnify, and c hold harmless the City, its officers, employees and agents from any claims, demands, L) lawsuits, liabilities,judgments, or expenses, including reasonable attorney's fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims,to the extent arising out 3 of, pertaining to, or related to the negligence, recklessness, or willful misconduct of A Consultant, its employees, agents or subcontractors in the performance of this Agreement, except that such duty to defend, indemnify, and hold harmless shall not apply to the extent where injury to person or property is caused by City's negligence, recklessness or willful misconduct. The total aggregate liability of Consultant shall not exceed $50,000 or the d amount of the total fees hereunder, which ever is greater, for negligent professional acts, a errors or omissions. w c 6.8. Independent Consultant. Consultant is and shall be acting at all times as " an independent Consultant and not as an employee of City. Consultant shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. E 6.9. Ownership of Documents. All findings,reports,documents,information and data including,but not limited to,computer tapes or discs, files and tapes furnished or a prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement,and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims,damages, losses,and expenses,including attorneys' fees,arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings,reports,documents,information, data,in any form, including but not limited to,computer tapes, discs,files audio tapes or any 6 2011-138 other Project related items as requested by City or its authorized representative,at no additional cost to the City. 6.10. Public Records Act Disclosure. Consultant has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not,in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, E those records so marked if disclosure is deemed to be required by law or by order of the Court. £ E 6.11. Responsibility for Errors. Consultant shall be responsible for its work L and results under this Agreement. Consultant, when requested, shall famish clarification c and/or explanation as may be required by the City's representative, regarding any services coy rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary data, documents, and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. © 6.12. Prohibited Employment. Consultant will not employ any regular E employee of City while this Agreement is in effect. m 6.13. Order of Precedence. In the event of an inconsistency or conflict in this a Agreement and any of the attached Exhibits or Attachments, the terms set forth in this `- Agreement shall prevail. d 6.14. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations o hereunder except as expressly provided herein. c m 6.15. No Third Party Beneficiary Rights. This Agreement is entered into for E the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in,under or a to this Agreement. 6.16. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 6.17. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation �- arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or 7 2011-138 burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.18. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.19. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. n d E 6.20. Severability. If any provision of this Agreement is determined by a court Q of competent jurisdiction to be unenforceable in any circumstance, such determination shall v not affect the validity or enforceability of the remaining terms and provisions hereof or of o the offending provision in any other circumstance. U c A 6.21. Counterparts. This Agreement may be executed in one or more counterparts,each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. ° 6.22. Corporate Authori ty. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf E of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. rn 6.23. Special Terms&Conditions. In performing the scope of services set forth `- T in Exhibit "A," CONSULTANT shall adhere to and follow all applicable terms and conditions imposed by the U.S. Department of Energy on the EECBG Grant that is funding M the CITY'S Residential Energy Audit & Retrofit Rebate Program as identified Exhibit "C," Special Terms and Conditions, which is attached hereto and incorporated herein by this o reference. c m E L U N Packet Pg. 132 2011-138 AGREEMENT FORTHE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT & RETROFIT REBATE PROGRAM IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONSULTANT A Municipal Corporation, Willdan Engineering, c By ' By 1 �• VV 'q/�nv c v Charles McNeely, City ag Albert V. Warot E Director of Planning a U C O U Approved as to form: v James F. Penman, 3: City Attorney n O c By E d v m m E y X d W M O N C d L U a 9 2011-138 Exhibit A Scope of Services The services to be provided by CONSULTANT in designing and implementing the CITY'S Residential Energy Audit and Retrofit Program shall be as follows: • Design an energy audit program utilizing Tier 1 audits for single-family home renters and minimal weatherization improvements • Design an energy audit program utilizing Tier 2 audits for single-family homeowners including more advanced energy saving retrofit improvements c • Develop a comprehensive,multi-language marketing and communications E plan that includes a program website,program materials, community outreach, industry professional outreach and coordination with Energy E Upgrade California(EUC)advertising schedules 4 U 1C • Process applications from single-family homeowners and renters and c determine the appropriate energy audit and retrofit programs for their participation A n • Guide participants in how to (a)have a Tier 1 audit performed or(b)have a 3 Tier 2 audit performed by a HERSBPI-accredited firm or HERSBPI- certified contractor,(c)interpret audit results, (d) select a HERS/BPI- accredited firm or HERSBPI-certified retrofit contractor, 1 for , e) a( PPY financing(if needed), and (� a PP I for a CI TY rebate. d E m d • Conduct audits and prepare audit reports and scopes of work for retrofit improvements a c • Provide audit reports identifying costs, greenhouse gas (GHG) emission reductions, payback periods for different retrofits, and cash-flow analyses M • Complete all applicable documents necessary to reserve and apply for o energy rebates through EUC c w • Prepare scopes of work sufficient to solicit bids from contractors for retrofit z work m • Ensure that scopes of work are reviewed and approved by the CITY'S Building Department • Coordinate with the San Bernardino Community College District's Clean Energy Workforce Training Program to ensure local green job creation • Coordinate the leveraging of the no-cost weatherization services available through the Community Action Partnership(CAP)of San Bernardino County 10 2011-138 I'; • Develop an approved contractors list to be used to assist homeowners in selecting a HERS/BPI certified contractor to perform the retrofit • Perform periodic inspections and final inspections to ensure retrofit work was properly completed i • Perform processing of CITY incentive funding • Develop procedures to prevent fraud and any other program abuse • Conduct customer satisfaction surveys d E 4 • Quantify,evaluate and report on program results c E • Prepare and submit monthly,quarterly and annual progress reports to the CITY ` c O • Assist in complying with EECBG reporting requirements c m v v r m o E E v v m m rn c N N W M O N C E E s U Q O 11 PacketPg. 135 2011-138 Exhibit B ® Budget The Scope of Services identified in Exhibit"A" shall be provided in accordance with the following bud et. TASKS BUDGET Administration,Design Development and Irn lementation Tier 1 Audits(to be provided by CAP) $0.00 Tier 2 Audits $135,000 c Tier 2 Retrofit Rebates $323,224 v c Pre-Audit,Post-Audit and Post-Retrofit and $25,320 a Training Services u Rebate Payment Processing $7,580 c 0 Program/Project Measurement,Tracking and $60,456 c Reporting v Subtotal $551,580 3 a Marketing ° QBranding $9,000 E m Marketing and Communications Plan $11,600 2 m 00 `- Multicultural Services $2,5 Z 'x d Website $2,000 Marketing Collateral $5,000 N Community Outreach(participants, $18,300 professionals,partnerships) _ Subtotal $48,420 Total All Tasks $600,000 12 Packet Pg. 136 2011-138 The members of the CONSULTANT'S team shall be billed at the hourly rates shown © below. Team Member Role Hourly Rate Albert Warot Management Oversight $150 Patrick Goode Program Manager $115 Aryn Sieber CSI Program &Technical Direct $206 Mabell Garcia Paine Marketing $145 Micheal Neal Administrative/Technical Lead $95 Rainer Parducho Technical Lead, BPI A/E $75 E v Ja leen Sun Brandin $105 v Cecilia Sieber CSI Administrator $63 Jennifer Hammond Assistant Program Coordinator $42 Robert Olson CSI PRAgent $50 co U Bill Nevils BPI Analyst $50 Jim Johnson CEWTP BPI Analyst $30 Ran Sieber BPI Analyst/Envelope &HERS $75 IRaymond Hernandez Energy Pro Analyst $30 m Marcia Tolentino Promotin Ener Conservation $45 _ c v E d d rn m rn c N d th O N C N E r U N a C 13 2011-138 Exhibit C 031510 SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANT PROGRAM-FORMULA GRANTS Table of Contents SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANT PROGRAM-FORMULA GRANTS.........._................................................................2 1. RESOLUTION OF CONFLICTING CONDITIONS..................................................................................2 2. AWARD AGREEMENT TERMS AND CONDITIONS............................................................................2 3. AWARD PROJECT PERIOD AND BUDGET PERIODS.........................................................................2 4. STAGED DISBURSEMENT OF FUNDS..................................................................................................2 5. PAYMENT PROCEDURES-ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS(ASAP)SYSTEM..............................................................................3 -o 6. INCREMENTAL FUNDING AND MAXIMUM OBLIGATION-COEXTENSIVE BUDGET PERIOD v AND PROJECT PERIOD...................... .. . . .........................................................3 E 7. COST SHARING FFRDC'S NOT INVOLVED..........................................................................................3 8. REBUDGETING AND RECOVERY OF INDIRECT COSTS..................................................................4 9. CEILING ON ADMINISTRATIVE COSTS...............................................................................................5 c 10. LIMITATIONS ON USE OF FUNDS.........................................................................................................5 0 U 11. PRE-AWARD COSTS.................................................................................................................................5 � 12. USE OF PROGRAM INCOME-ADDITION............................................................................................5 v 13. STATEMENT OF FEDERAL STEWARDSHIP........................................................................................5 14. SITE VI SI TS................................................................................................................................................6 3 15. REPORTING REQUIREMENTS................................................................................................................6 v 16. PUBLICATIONS.........................................................................................................................................6 17. FEDERAL,STATE,AND MUNICIPAL REQUIREMENTS....................................................................6 ® 18. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATI ON................................7 - 19. LOBBYING RESTRICTIONS....................................................................................................................7 20. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS- E -SENSE OF CONGRESS...........................................................................................................................7 m 21. INSOLVENCY,BANKRUPTCY OR RECEIVERSHIP............................................................................7 22. NATIONAL ENVIRONMENTAL POLICY ACT(NEPA)REQUIREMENTS........................................7 23. DECONTAMINATION AND/OR DECOMMISSIONING(D&D)COSTS..............................................8 'S 24. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND x REINVESTMENT ACT OF 2009(MAY 2009).........................................................................................8 w 25. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE n RECOVERY ACT(MAY 2009)...............................................................................................................12 26. REQUIRED USE OF AMERICAN IRON,STEEL,AND MANUFACTURED GOODS--SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009(MAY 2009).........12 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(MAY 2009).............................................................................14 E E 28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT(MAY 2009)17 29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL Q AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS(MAY 2009)..........................................................................................................................................................18 30. DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT(NOV 2009)..........................................................................................................................................................18 31. HISTORIC PRESERVATION..................................................................................................................25 ATTACHMENT 1 -INTELLECTUAL PROPERTY PROVISIONS................................................................26 Not Specified/Other Packet Pg. 138 2011-138 031510 SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANT PROGRAM—FORMULA GRANTS 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 Grant and Cooperative Agreement cover page,plus the following: E a. Special terms and conditions. 'a c d b. Attachments: E Q Attachment No. Title 2 C 1 Intellectual Property Provisions o U 2 Project Activity Worksheet(s)are attached. If the Worksheet is for the Strategy, c the grant will be amended to include additional Worksheets as activities are approved. _ 3 Federal Assistance Reporting Checklist 3 4 Budget Pages are attached. For Strategy,the SF-424A is attached,if it was v included in the application. The grant will be amended to include additional Budget Pages as activities are approved. 5 Davis-Bacon Act Wage Determination(s),if applicable. For Strategy awards,the Wage Determination will be included when activities are approved. m 6 Special Requirements,if applicable E 7 SHPO Letter,if applicable m m m c. Applicable program regulations: Title V,Subtitle E of the Energy Independence Security Act(EISA)of 2007,Public Law 110-140. — d. DOE Assistance Regulations, 10 CFR Part 600 at http://mfr.gpoaccess.gov and if the award is for research e' and to a university or non-profit,the Research Terms&Conditions and the DOE Agency Specific r°Ja Requirements at http://www.nsf.gov lbfa/dias/policy/rtc/index.jsp, e. Application/proposal as approved by DOE. N f. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at htty://mnagement.energy.gov/business doe/1374.htm E E u m 3. AWARD PROJECT PERIOD AND BUDGET PERIODS Q The Project and Budget Periods for this award are concurrent for a 36-month period as indicated in Item No.7 of the Assistance Agreement Face Page. 4. STAGED DISBURSEMENT OF FUNDS I I/FMARKED. THIS TERM 7S APPLICABLE The total funding allocation for this award is shown in Block 13 of the Assistance Agreement Cover Page. 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. Not Specified/Other Packet Pg. 139 2011-138 031510 [ ] For Energy Efficiency Conservation Strategy(EECS)Only awards,funds in the amount of $[ ]is released to the Recipient to begin work on the EECS. The approved activities are listed in Attachment 2,Project Activity Worksheets. The remaining funds will be released for disbursement upon DOE approval of the EECS and amendment of the award to include the authorized Project Activity Worksheets. [ ] Funds in the amount of$[ ]is released to the Recipient to begin work on the activities listed in Attachment 2,Project Activity Worksheets. The remaining funds will be released for disbursement upon DOE approval of additional activities and amendment of the award to include the authorized Project Activity Worksheets. [ ] Funds in the amount of$[ ]is released to the Recipient to begin work on administrative duties pending resolution of problematic issues such as eligibility,technical issues,NEPA,historic preservation,budgetary E items,or similar issues. The remaining Ponds will be released upon successful resolution of these issues and c amendment of the award. £ Q 5. PAYMENT PROCEDURES-ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS(ASAP)SYSTEM `v c 0 I 1 /FMARXED. TH/S TERM DOES NOT APPLY—SEE ATTACHMENT6 U c m a. Method of Payment Payment will be made by advances through the Department of Treasury's ASAP a 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 f`✓ disburse funds for direct project costs and the proportionate share of any allowable indirect costs. If same- y day transfers are not feasible,advance payments must be as close as is administratively feasible to actual E disbursements. y rn c. Adjusting payment requests for available cash. You must disburse any funds that are available from rn repayments to and interest earned on a revolving fund,program income,rebates,refunds,contract S settlements,audit recoveries,credits,discounts,and interest earned on any of those£ands before requesting e additional cash payments from DOE/NNSA. d ro M 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. 0 6. INCREMENTAL FUNDING AND MAXIMUM OBLIGATION-COEXTENSIVE BUDGET PERIOD AND PROJECT PERIOD y E APPLICABLE ONLY TO/NCREMENTALLY FUNDED RWARDS. n This award is funded on an incremental basis. The mazimum obligation of the DOE/NNSA is limited to the Q amount shown on the Agreement Face Page. You are not obligated to continue performance of the project beyond the total amount obligated and your pro rata share of the project costs,if cost sharing is required. Additional funding is contingent upon the availability of appropriated funds and substantial progress towards meeting the objectives of the award. 7. COST SHARING FFRDC'S NOT INVOLVED APPLICABLE ONLY IF COST SHARING IS/NCLUDED IN THE A WARD. a. Total Estimated Project Cost is the sum of the Government share and Recipient share of the estimated Not Specified/Other 3 Packet Pg. 140 A 2011-138 031510 project costs. The Recipient's cost share must come from non-Federal sources unless otherwise allowed by law. By accepting federal funds under this award,you agree that you are liable for your percentage share of total allowable project costs,on a budget period basis,even if the project is terminated early or is not funded to its completion. This cost is shared as follows: Budget Budget Government Share Recipient Share Total Estimated Cost Period Period Start S/°/. S/°/. No. Total Project b. If you discover that you may be unable to provide cost sharing of at least the amount identified in c m paragraph a of this article,you should immediately provide written notification to the DOE Award >_ Administrator indicating whether you will continue or phase out the project. If you plan to continue the c project,the notification must describe how replacement cost sharing will be secured. d a c. You must maintain records of all project vests that you claim as cost sharing,including in-kind costs,as � well as records of costs to be paid by DOENNSA. Such records are subject to audit. c d. Failure to provide the cost sharing required by this Article may result in the subsequent recovery by U DOENNSA of some or all the funds provided under the award. c m v S. REBUDGETING AND RECOVERY OF INDIRECT COSTS = 3 THE APPLICABLE TERM IS MARKED BELOW r [ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS- REIMBURSABLE INDIRECT COSTS AND FRINGE BENEFITS a. If actual allowable indirect costs and fringe benefits are less than those budgeted and funded under E the award,you may use the difference to pay additional allowable direct costs during the project P period. If at the completion of the award the Govemment's share of total allowable costs(i.e.,direct, m indirect,fringe benefits),is less than the total costs reimbursed,you must refund the difference. a' c b. Recipients are expected to manage their indirect costs and fringe benefits. DOE will not amend an u award solely to provide additional funds for changes in indirect costs and fringe benefits. DOE recognizes that the inability to obtain full reimbursement for indirect costs and fringe benefits means ro the recipient must absorb the underrecovery. Such underrecovery may be allocated as part of the organization's required cost sharing. c N [ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS—REIMBURSABLE INDIRECT COSTS m a. If actual allowable indirect costs are less than those budgeted and funded under the award,you may E use the difference to pay additional allowable direct costs during the project period. If at the m completion of the award the Govemment's share of total allowable costs(i.e.,direct and indirect),is Q less than the total costs reimbursed,you must refund the difference. b. Recipients are expected to manage their indirect costs. DOE will not amend an award solely to provide additional funds for changes in indirect cost rates. DOE recognizes that the inability to obtain full reimbursement for indirect costs means the recipient must absorb the underrecovery. Such underrecovery may be allocated as part of the organization's required cost sharing. c. The budget for this award includes indirect costs,but does not include fringe benefits. Therefore, fringe benefit costs shall not be charged to nor shall reimbursement be requested for this project nor shall the fringe benefit costs for this project be allocated to any other federally sponsored project. In addition,fringe benefit costs shall not be counted as cost share unless approved by the Contracting Not Specified/Other q PacketPg. 141 2011-138 031510 GOfficer. [XI REBUDGETING AND RECOVERY OF INDIRECT COSTS-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 not reimbursement requested for this project nor shall the fringe and indirect 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. 9. CEILING ON ADMINISTRATIVE COSTS c a. Recipients may not use more than 10 percent of amounts provided under this program,or$75,000, a E 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 m summarized for each activating under the Projected Costs Within Budget: Administration. E Q b. Recipients are expected to manage their administrative costs. DOE will not amend an award solely to i provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on this c project for any final administrative costs that are in excess of the designated 10 percent administrative cost 0 O ceiling. In addition,the Recipient shall neither count costs in excess of the administrative cost ceiling as c cost share,nor allocate such costs to other federally sponsored projects,unless approved by the Contracting a Officer. — 10. LIMITATIONS ON USE OF FUNDS ,a r a. Recipients may not use more than 20 percent or$250,000,whichever is greater(EISA Sec 545(6)(3)(6), `- /^' for the establishment of revolving loan funds. b. Recipients may not use more than 20 percent or$250,000,whichever is greater(EISA Sec 545(b)(3)(C), E m for subgrents 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. rn 11. PRE-AWARD COSTS c APPLICABLE ONLY IF COMPLETED BELOW. °1 m M You are entitled to reimbursement for preaward costs for the period from[MonthDayYear]to[MonthDayYear] in accordance with your request dated[MonthDayYear] if such costs are allowable in accordance with the c applicable Federal cost principles referenced in 10 CFR Part 600. 12. USE OF PROGRAM INCOME-ADDITION E If you earn program income during the project period as a result of this award,you may add the program m income to the funds committed to the award and use it to further eligible project objectives. Q 13. STATEMENT OF FEDERAL STEWARDSHIP DOEINNSA 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. Not Specified/Other 5 Packet Pg. 142 2011-138 031510 © 14. 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 most provide,and most require your subawardees 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. 15. REPORTING REQUIREMENTS a.. Requirements. The reporting requirements for this award are identified on the Federal Assistance c Reporting Checklist,DOE F 4600.2,attached to this award. Failure to comply with these reporting v requirements is considered a material noncompliance with the terms of the award. Noncompliance may 'E result in withholding of future payments,suspension,or termination of the current award,and withholding m of future awards. A willful failure to perform,a history of failure to perform,or unsatisfactory E performance of this and/or other financial assistance awards,may also result in a debarment action to Q preclude future awards by Federal agencies. c b. Dissemination of scientific/technical reports. Scientific/technical reports submitted under this award will be disseminated on the Internet via the DOE Information Bridge(www.osti.gov/bridge),unless the report � contains patentable material,protected data,or SBIR/STTR data. Citations forjoumal articles v c. produced under the award will appear on the DOE Energy Citations Database (www.osti.eov/enerevcitationsl. v n m d. Restrictions.Reports submitted to the DOE Information Bridge must not contain any Protected Personal ,.., Identifiable Information(PII),limited rights data(proprietary data),classified information,information subject to export control classification,or other information not subject to release. v E 16. PUBLICATIONS m m m a. You are encouraged to publish or otherwise make publicly available the results of the work conducted rn under the award. S N b. An acknowledgment of Federal support and a disclaimer must appear in the publication of any material, m whether copyrighted or not,based on or developed under this project,as follows: m M Acknowledgment: "This material is based upon work supported by the Department of Energy under Award Number[Enter the award number]." N Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United States m Government. Neither the United States Govemment nor any agency thereof,nor any of their employees, E 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 M its use would not infringe privately owned rights. Reference herein to any specific commercial product, Q 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 Govemment 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." 17. FEDERAL,STATE,AND MUNICIPAL REQUIREMENTS You must obtain any required permits and comply with applicable federal,state,and municipal laws,codes,and regulations for work performed under this award. Not Specified/Other 6 Packet Pg. 143 2011-138 031510 18. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION a. The intellectual property provisions applicable to this award are provided as an attachment to this award or are referenced on the Agreement Face Page. A list of all intellectual property provisions may be found at htto://www.gc.doe.gov/financial assistance awards htm. b. Questions regarding intellectual property matters should be referred to the DOE Award Administrator and the Patent Counsel designated as the service provider for the DOE office that issued the award. The IP Service Providers List is found at htti)�//www.gc.doe.gov/documents/IntellectuaI Property OP) Service Providers for Acquisition odf c 19. LOBBYING RESTRICTIONS E E 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 E 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. m c 20. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS— U SENSE OF CONGRESS c m v 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. a 21. INSOLVENCY,BANKRUPTCY OR RECEIVERSHIP m a. You shall immediately notify the DOE of the occurrence of any of the following events:(i)you or your c parent's filing of a voluntary case seeking liquidation or reorganization under the Bankruptcy Act;(ii)your consent to the institution of an involuntary case under the Bankruptcy Act against you or your parent;(iii) E the filing of any similar proceeding for or against you or your parent,or its consent to,the dissolution, rn winding-up or readjustment of your debts,appointment of a receiver,conservator,trustee,or other officer with similar powers over you,under any other applicable state or federal law;or(iv)your insolvency due to your inability to pay your debts generally as they become due. 'y b. Such notification shall be in writing and shall: (i)specifically set out the details of the occurrence of an event referenced in paragraph a;(ii)provide the facts surrounding that event;and(iii)provide the impact M such event will have on the project being funded by this award. 0 c. Upon the occurrence of any of the four events described in the first paragraph,DOE reserves the right to � conduct a review of your award to determine your compliance with the required elements of the award c (including such items as cost share,progress towards technical project objectives,and submission of required reports). If the DOE review determines that there are significant deficiencies or concerns with E your performance under the award,DOE reserves the right to impose additional requirements,as needed, m including(i)change your payment method;or(ii)institute payment controls. Q d. Failure of the Recipient to comply with this provision maybe considered a material noncompliance of this financial assistance award by the Contracting Officer. 22. 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/NNSA providing either a NEPA clearance or a final NEPA decision regarding this project. Prohibited actions include:Activities not specified below. Not Specified/Other 7 Packet Pg. 144 2011-138 031510 This restriction does not preclude you from: 1)Develop an energy efficiency and conservation strategy (completed),2)retrofit lighting systems in City Hall(1971)with more energy efficient components,3)retrofit lighting systems in the City of San Bernardino Library Building(1985),4)retrofit lighting systems in the Police Department Building(1995),5)retrofit lighting systems for the City Hall parking structure(1971),6)purchase and implement use of agenda management software,7)establish a Residential Energy Efficiency Retrofit Program that will include audits and rebates for energy efficiency improvements,8)establish Commercial Energy Retrofit Program that will include audits and rebates for energy efficiency improvements,9)establish Energy Efficiency and Renewable Energy Financing District for support of energy efficiency improvements and renewable energy installations for commercial and residential property owners, 10)develop solar power purchase agreement program that would allow the city to install photovoltaic systems on municipal buildings throughout the city, 11)train city development services staff to support the energy efficiency program through a process leading to LEED professional credentialing, 12)through participation with the San Bernardino m Association of Governments,acquire technical services to develop a greenhouse emissions inventory and E develop an Environmental Impact Report for the regional greenhouse gas reduction. c d E If you move forward with activities that are not authorized for federal funding by the DOE Contracting Officer Q 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. m c If this award includes construction activities,you must submit an environmental evaluation report/evaluation U notification form addressing NEPA issues prior to DOEINNSA initiating the NEPA process. c m v 23. DECONTAMINATION AND/OR DECOMMISSIONING(D&D)COSTS 3 Notwithstanding any other provisions of this Agreement,the Government shall not be responsible for or have n any obligation to the recipient for(i)Decontamination and/or Decommissioning(D&D)of any of the recipient's m facilities,or(it)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 this Agreement. m E d 24. SPECIAL PROVISIONS RELATING TO WORK FUNDED TINDER AMERICAN RECOVERY AND rn REINVESTMENT ACT OF 2009(MAY 2009) m rn Preamble c y X The American Recovery and Reinvestment Act of 2009,Pub.L. 111-5,(Recovery Act)was enacted to preserve m re and create jobs and promote economic recovery,assist those most impacted by the recession,provide n 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 o 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 c maximizes job creation and economic benefit. d E s The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance, m accountability,transparency,data collection and resources as specified in Act itself and as discussed below. Q Recipients should begin planning activities for their first tier subrecipients,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 Not Specified/Other 8 2011-138 031510 Cprovided these details as they become available. The Recipient most 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 fords. 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; E and any professional membership organization,certification of other professional body,any agent or licensee of -6 c the Federal government,or any person acting directly or indirectly in the interest of an employer receiving u covered funds;or with respect to covered funds received by a State or local government,the State or local E Q government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or u subcontractor of the State or local government;and does not mean any department,agency,or other entity of i the federal government. c 0 U Recipient means any entity that receives Recovery Act funds directly from the Federal government(including a Recovery Act funds received through gram,loan,or contract)other than an individual and includes a Stale that v receives Recovery Act Funds. Special Provisions n m A. Flow Down Reouirement 0 Recipients must include these special terms and conditions in any subaward. E E u B. Seveeation of Costs rn m Recipients must segregate the obligations and expenditures related to funding under the Recovery Act. M Financial and accounting systems should be revised as necessary to segregate,track and maintain these .y funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be 'x commingled with any other funds or used for a purpose other than that of making payments for costs allowable for Recovery Act projects. ^ Prohibition on Use of Funds o N None of the funds provided under this agreement derived from the American Recovery and Reinvestment c Act of 2009,Pub.L. 111-5,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. s u m C. Access to Records Q 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. 111-5, 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 relation to, the subcontract,subcontract,grant,or subgmnt;and ` (2) to interview any officer or employee of the contractor,grantee,subgrantee,or agency regarding such Not Specified/Other 9 Packet Pg. 146 2011-138 031510 tea/ transactions. D. 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 C d E 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 in disclosed only for evaluation purposes, W provided that if this applicant receives an award as a result of or in connection with the submission of this E 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 2 from any some,including the applicant. c 0 U Information about this agreement will be published on the Internet and linked to the website c www.recovery.gov,maintained by the Accountability and Transparency Board. The Board may exclude n 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. to to E. Protecting State and Local Government and Contractor Whistleblowers c The requirements of Section 1553 of the Act are summarized below. They include,but are not limited to: E m d Prohibition on Reprisals: An employee of any non-Federal employer receiving covered funds under the rn American Recovery and Reinvestment Act of 2009,Pub.L. 111-5,may not be discharged,demoted,or 'e otherwise discriminated against as a reprisal for disclosing,including a disclosure made in the ordinary c course of art employee's duties,to the Accountability and Transparency Board,an inspector general,the me Comptroller General,a member of Congress,a State or Federal regulatory or law enforcement agency,a 'x 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 fD agency,or their representatives information that the employee believes is evidence of • gross management of an agency contract or grant relating to covered funds; o • a gross waste of covered funds • a substantial and specific danger to public health or safety related to the implementation or use of c covered funds; • an abuse of authority related to the implementation or use of covered funds;or • as violation of law,rate,or regulation related to an agency contract(including the competition for or m negotiation of a contract)or grant,awarded or issued relating to covered funds. Q 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 `F..r Not Specified/Other 10 2011-138 031510 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 competentjurisdiction. Nonenforeeablity 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 0 d remedies as required therein.(Refer to section 1553 of the American Recovery and Reinvestment Act of E 2009,Pub.L. 111-5,www.Recovery.gov,for specific requirements of this section and prescribed language c for the notices.). 0 E F. Request for Reimbursement � Reserved c 0 U G. False Claims Act c m v Recipient and sub-recipients shall promptly refer to the DOE or other appropriate Inspector General any 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 v laws pertaining to fraud,conflict or interest,bribery,gratuity or similar misconduct involving those funds. cro !^ H. Information in supporting of Recovery Act Reporting m Recipient may be required to submit backup documentation for expenditures of funds under the Recovery E Act including such items as timecards and invoices. Recipient shall provide copies of backup documentation at the request of the Contracting Officer or designee. m rn 1. Availability of Funds c N Funds appropriated under the Recovery Act and obligated to this award are available for reimbursement of c' costs until September 30,2015. M 1. Additional Funding Distribution and Assurance of Appropriate Use of Funds c N Applicable if award is to a State Government or an Aeencv a Certification by Governor--Not later than April 3,2009,for funds provided to any State or agency thereof E by the American Reinvestment and Recovery Act of 2009,Pub.L. 111-5,the Governor of the State shall certify that: 1)the state will request and use funds provided by the Act;and 2)the funds will be used to Q 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. K. Certifications Not Specified/Other 11 Packet Pg. 148 2011-138 031510 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. 25. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE y RECOVERY ACT(MAY 2009) E v c 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 Q provided through this award.Information from these reports will be made available to the public. m 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. 0 c c. Recipients and their first-tier recipients must maintain current registrations in the Central Contractor 2 Registration(http://www.cer.gov)at all times during which they have active federal awards funded with 3 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. n m 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.FedmIReporting.gov and ensure that any information that is pre-filled is corrected or updated as needed. m E N 26. REQUIRED USE OF AMERICAN IRON,STEEL,AND MANUFACTURED GOODS—SECTION rn 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009(MAY 2009) rn c THISA WARD TERM ISAPPLICABLE TO ANYRECOVERYACT FUNDS FOR CONSTRUCTION. 'y ALTERATION.MAINTENANCE,OR REPAIR OF A PUBLIC BUILDING OR PUBLIC WORK AND 'x THE TOTAL PROJECT VALUE IS ESTIMATED LESS THAN$7,443,000. THIS AWARD TERN ALSO APPLIES TO ALL SUBGRANTS AND CONTRACTS. ro a. Definitions.As used in this award term and condition-- c N (1) Manufactured good means a good brought to the construction site for incorporation into the building or c work that has been— w (i) Processed into a specific form and shape;or t (ii) Combined with other raw material to create a material that has different properties than the m properties of the individual raw materials. Q (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. i I (3) Steel means an alloy that includes at least 50 percent iron,between.02 and 2 percent carbon,and may Not Specified/Other 12 2011-138 031510 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 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: None a� E [Award official to list applicable excepted materials or indicate"none"] v (3) The award official may add other iron,steel,and/or manufactured goods to the list in paragraph(b)(2) E E 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 o 0 percent; a n The iron,steel,and/or manufactured good is not produced,or manufactured in the United States in 10 sufficient and reasonably available quantities and of a satisfactory quality;or 3 (iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest, m 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 E paragraph(b)(3)of this section shall include adequate information for Federal Government d valuation of the request,including— (A) A description of the foreign and domestic iron,steel,and/or manufactured goods; m (B) Unit of measure; c (C) Quantity; w (D) Cost; X (E) Time of delivery or availability; w (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 c 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. d (iii) The cost of iron,steel,and/or manufactured goods material shall include all delivery costs r to the construction site and any applicable duty. m (iv) Any recipient request for a determination submitted after Recovery Act funds have been Q 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 actions taken to cover costs associated with acquiring or using the foreign iron,steel,and/or Not Specified/Other 13 Packet Pg. 150 2011-138 {r 031510 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 176.110(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 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: _ m Foreign and Domestic Items Cost Comparison E v c d Description Unit of Measure Quantity Cost E dollars * Q Item 1: m c Foreign steel,iron,or manufactured dgwd o U c Domestic steel,iron,or manufactured n v Lem 1: _ 3 Foreign steel iron,or manufactured good v r Domestic steel,iron,or manufactured ood ((r d List name,address,telephone number,email address,and contact for suppliers surveyed.Attach copy of m response;if oral,attach summary. rn M Include other applicable supporting information. a' c N *Include all delivery costs to the construction site. 'K m 27. REQUIRED USE OF AMERICAN IRON,STEEL,AND MANUFACTURED GOODS(COVERED ro UNDER INTERNATIONAL AGREEMENTS)—SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009(MAY 2009) c N THIS A WARD TERM IS APPLICABLE TO ANY RECOVERYACT FUNDS FOR CONSTRUCTION c ALTERATION.MAINTENANCE,OR REPAIR OF PUBLIC BUILDING OR PUBLIC WORK W/THA TOTAL PROJECT VALUE OVER$7 443,000 THAT INVOLVES IRON STEEL AND/OR E MANUFACTURED GOODS MATERIALS COVERED UNDER INTERNATIONAL AGREEMENTS m THIS AWARD TERM ALSO APPLIES TO ALL SUBGRANTS AND CONTRACTS Q 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; Not Specified/Other 14 2011-138 031510 (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— (I) Is wholly the growth,product,or manufacture of a designated country;or y E (2) In the case of manufactured good that consist in whole or in part of materials from another country, c has been substantially transformed in a designated country into a new and different manufactured good w E distinct from the materials from which it was transformed. Q U Domestic iron,steel,and/or manufactured good— c (1) Is wholly the growth,product,or manufacture of the United States;or (j c (2) In the case of a manufactured good that consists in whole or in part of materials from another country, a_ has been substantially transformed in the United States into a new and different manufactured good 3 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. m Foreign iron,steel,and/or manufactured good means iron,steel and/or manufactured good that is not c domestic or designated country iron,steel,and/or manufactured good. m E 0 Manufactured good means a good brought to the construction site for incorporation into the building or rn work that has been-- A s (I) Processed into a specific form and shape;or 'c N v (2) Combined with other raw material to create a material that has different properties than the properties � of the individual raw materials. m Public building and public work means a public building of,and a public work of,a governmental o 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 c entities which have governmental functions).These buildings and works may include,without limitation,bridges,dams,plants,highways,parkways,streets,subways,tunnels,sewers,mains,power E lines,pumping stations,heavy generators,railways,airports,terminals,docks,piers,wharves,ways, m lighthouses,buoys,jetties,breakwaters,levees,and canals,and the construction,alteration, Q maintenance,or repair of such buildings and works. 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 i Not Specified/Other 15 PacketPg. 152 2011-138 031510 © (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 MOM. (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. E (3) The requirement in paragraph(b)(2)of this section does not apply to the iron,steel,and manufactured c goods listed by the Federal Government as follows: c' E None U A [Award official to list applicable excepted materials or indicate"none"] c 0 U (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 v (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 umeasonable when the .. cumulative cost of such material will increase the overall cost of the project by more than 25 v percent; m (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. E E m m c. Request for determination of inapplicability of section 1605 of the Recovery Actor the Buy American Act. m rn S (t) (i) Any recipient request to use foreign iron,steel,and/or manufactured goods in accordance with .y paragraph(bx4)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; o (D) Cost; N (E) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier;and E£ (H) A detailed justification of the reason for use of foreign iron,steel,and/or manufactured m goods cited in accordance with paragraph(b)(4)of this section. Q (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, Not Specified/Other 16 2011-138 031510 `°- alteration,maintenance,or repair that an exception to section 1605 of the Recovery Am 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 176.110(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. c E E d. Data. To permit evaluation of requests under paragraph(b)of this section based on unreasonable cost,the °c applicant shall include the following information and any applicable supporting data based on the survey of d suppliers: E Q U Foreign and Domestic Items Cost Comparison A c 0 Descrl lion Unit of U P Quantity Cost c Measure dollars * D Item I: — 3 Foreign steel iron,or manufactured good Domestic steel,iron,or manufactured good © Item 1: � v Foreign steel,non,or manufactured ood E v a Domestic steel,iron or manufactured ood O1 m a c List name,address,telephone number,email address,and contact for suppliers surveyed.Attach copy of 'N response;if oral,attach summary. A v Include other applicable supporting information. n "Include all delivery costs to the construction site. c N 28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT(MAY 2009) m THIS AWARD TERM IS APPLICABLE TO RECO VERY ACT PROGRAMS OR ACTIVITIES THAT MAY E INVOLVE CONSTRUCTION.ALTERATION,MAINTENANCE,OR REPAIR THISAWARD TERM n ALSO APPLIES TO ALL SUBGRANTS AND CONTRACTS Q 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 Not Specified/Other 17 Packet Pg. 154 2011-138 [p^ 031510 the Recovery Act shall ensure that the standard Davis-Bacon contract clauses found in 29 CFR 5.5(a)are incorporated in any resultant covered 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(MAY 2009) w E a. To maximize the transparency and accountability of fonds authorized under the American Recovery and Reinvestment Act of 2009(Pub.L. 111-5)(Recovery Act)as required by Congress and in accordance with a, 2 CFR 215.21 "Uniform Administrative Requirements for Grants and Agreements"and OMB Circular A-- E 102 Common Rules visions recipients a Q Pro , p agree to maintain records that identify adequately the source and application of Recovery Act funds.OMB Circular A-102 is available at M http://www.whiteho=.gov/omb/circulm/al 02/al02.htm1 0 U b. For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A--133,"Audits of c States,Local Governments,and Non-Profit Organizations,"recipients agree to separately identify the a expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal 3 Awards(SEFA)and the Data Collection Form(SF--SAC)required by OMB Circular A-433.OMB Circular A-433 is available at http://www.whitchome.gov/omb/circulars/al33/al33.ht7nl.This shall be e 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 III on the SF--SAC by CFDA number,and inclusion O of the prefix"ARRA-"in identifying the name of the Federal program on the SEFA and as the first c i characters in Item 9d of Part III on the SF--SAC. ar E 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 m funds.When a recipient awards Recovery Act funds for an existing program,the information fitmished to rn subrecipients shall distinguish the subawards of incremental Recovery Act funds from regular subawards E under the existing program. X 0 d. Recipients agree to require their subrecipients to include on their SEFA information to specifically identify w 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 c oversight by the Federal awarding agencies,Offices of Inspector General and the Government Accountability Office. c d 30. DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT(NOV E 2009) m THIS AWARD TERM IS APPLICABLE TO ARRA AWARDS WHEN WAGE RATE REQUIREMENT Q UNDER SECTION 1606 OF THE RECOVERY ACT TERM IS APPLICABLE THISAWARD TERM IS ALSO APPLICABLE TO SUBGRANTS AND CONTRACTS Definitions: For purposes of this clause,Clause 30,Davis Bacon Act and Contract Work Hours and Safety Standards Act,the following definitions are applicable: (1)"Award'means any grant,cooperative agreement or technology investment agreement made with Recovery Act funds by the Department of Energy(DOE)to a Recipient.Such Award must require compliance with the labor standards clauses and wage rate requirements of the Davis-Bacon Act(DBA)for work performed by all laborers and mechanics employed by Recipients(other than a unit of State or local O Not Specified/Other 18 Packet Pg. 155 2011-138 031510 government whose own employees perform the construction)Subrecipients,Contractors,and subcontractors. (2)"Contractor"means an entity that enters into a Contract.For purposes of these clauses,Contractor shall include(as applicable)prime contractors,Recipients,Subrecipients,and Recipients'or Subrecipients' contractors,subcontractors,and lower-tier subcontractors."Contractor"does not mean a unit of State or local government where construction is performed by its own employees." (3)"Contract"means a contract executed by a Recipient,Subrecipient,prime contractor,or any tier subcontractor for construction,alteration,or repair.It may also mean(as applicable)(i)financial assistance instruments such as grants,cooperative agreements,technology investment agreements,and loans;and,(ii) Sub awards,contracts and subcontracts issued under financial assistance agreements."Contract"does not v mean a financial assistance instrument with a wit of State or local government where construction is E performed by its own employees. a (4)"Contracting Officer"means the DOE official authorized to execute an Award on behalf of DOE and E Q who is responsible for the business management and non-program aspects of the financial assistance � process. m c (5)"Recipient"means any entity other than an individual that receives an Award of Federal funds in the t j form of a grant,cooperative agreement,or technology investment agreement directly from the Federal c Government and is financially accountable for the use of any DOE funds or property,and is legally v responsible for carrying out the terms and conditions of the program and Award. (6)"Subaward"means an award of financial assistance in the form of money,or property in lieu of money, v made under an award by a Recipient to an eligible Subrecipient or by a Subrecipient to a lower-tier r- subrecipient.The term includes financial assistance when provided by any legal agreement,even if the agreement is called a contract,but does not include the Recipient's procurement of goods and services to carry out the program nor does it include any form of assistance which is excluded from the definition of d "Award"above. E m ru (7)"Subrecipient"means a non-Federal entity that expends Federal funds received from a Recipient to carry out a Federal program,but does not include an individual that is a beneficiary of such a program. c N (a)Davis Bacon Act .x v (1)Minimum wages. M (i)All laborers and mechanics employed or working upon the site of the work(or under the United c States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project),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 v regulations issued by the Secretary of Labor under the Copeland Act(29 CFR part 3)),the full E 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 Q Secretary of Labor which is attached hereto and made a part hereof,regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section I(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(a)(1)(iv)of this section;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 weekly period.Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the Not Specified/Other 19 2011-138 031510 classification of work actually performed,without regard to skill,except as provided in§5.5(a)(4). 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 employers payroll records accurately set forth the time spent in each classification in which work is performed.The wage determination(including any additional classification and wage rates conformed under paragraph(a)(I)(ii)of this section)and the Davis-Bacon poster(WH-1321)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. (iixA)The Contracting Officer shall require that any class of laborers or mechanics,including helpers,which is not listed in the wage determination and which is to be employed under the Contract shall be classified in conformance with the wage determination.The Contracting Officer c shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: a c v (1)The work to be performed by the classification requested is not perforated by a classification in the wage determination; Q U N (2)The classification is utilized in the area by the construction industry;and 0 U ' (3)The proposed wage rate,including any bona fide fringe benefits,bears a reasonable � relationship to the wage rates contained in the wage determination. m v (B)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 a 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,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 m days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within y the 30-day period that additional time is necessary. ` m m (C)In the event the Contractor,the laborers or mechanics to be employed in the classification or rn 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 >< v recommendation of the Contracting Officer,to the Administrator for determination.The °J M 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. N (D)The wage rate(including fringe benefits where appropriate)determined pursuant to d paragraphs(a)(1)(ii)(B)or(C)of this section,shall be paid to all workers performing work in the £ classification under this Contract from the first day on which work is performed in the s u classification. Q (iii)Whenever the minimum wage rate prescribed in the Contract 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. (iv)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 Not Specified/Other 20 2011-138 i 031510 j 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. (2)Withholding.The Department of Energy or the Recipient or Subrecipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this Contract or any other Federal contract with the same prime contractor,or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements,which is held by the same prime contractor,so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics,including apprentices,trainees,and helpers,employed by the Contractor or any subcontractor the full amount of wages required by the Contract.In the event of failure to pay any laborer or mechanic,including any apprentice,trainee or hel per,e p loyed or working on the site of the work(or under the United States Housing Act --. of 1937 or under the Housing Act of 1949 in the construction or development of the project),all or part of the wages required by the Contract,the Department of Energy,Recipient,or Subrecipient,may,after written notice to the m E Contractor,sponsor,applicant,or owner,take such anion as may be necessary to cause the suspension of any 6 further payment,advance,or guarantee of funds until such violations have ceased. w E (3)Payrolls and basic records. Q U F (i)Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the c work and preserved for a period of three years thereafter for all laborers and mechanics working at the site 0 of the work(or under the United States Housing Act of 1937,or under the Housing Act of 1949,in the c construction or development of the project). Such records shall contain the name,address,and social `6 a security number of each such worker,his or her comet[classification,hourly rates of wages paid(including — rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section I(b)(2)(B)of the Davis-Bacon Act),daily and weekly number of hours worked, v deductions made,and actual wages paid.Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv)that the wages of any laborer or mechanic include the amount of any costs reasonably *.. anticipated in providing benefits under a plan or program described in section l(b)(2)(B)of the Davis.Bacon Act,the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable,that the plan or program is financially responsible,and that the plan or program has been m communicated in writing to the laborers or mechanics affected,and records which show the costs m anticipated or the actual cost incurred in providing such benefits.Contractors employing apprentices or m trainees under approved programs shall maintain written evidence of the registration of apprenticeship M programs and certification of traince programs,the registration of the apprentices and trainees,and the S ratios and wage rates prescribed in the applicable programs. = X v (ii)(A)The Contractor shall submit weekly for each week in which any Contract work is performed a copy M of all payrolls to the Department of Energy if the agency is a party to the Contract,but if the agency is not such a party,the Contractor will submit the payrolls to the Recipient or Subrecipient(as applicable), applicant,sponsor,or owner,as the case may be,for transmission to the Department of Energy.The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i),except that full social security numbers and home addresses shall not be m included on weekly transmittals.Instead,the payrolls shall only need to include an individually identifying .EE number for each employee(e.g.,the last four digits of the employee's social security number).The required m weekly payroll information may be submitted in any form desired.Optional Form WH-347 is available for ` this purpose from the Wage and Hour Division Web site at Q htt p://www.dol.gov/csa/whdtforms/wh347instr.htm or its successor site.The prime Contractor is responsible for the submission of copies of payrolls by all subcontractors.Contractors and subcontractors shall maintain the full social security number and current address of each covered worker,and shall provide them upon request to the Department of Energy if the agency is a party to the Contract,but if the agency is not such a party,the Contractor will submit them to the Recipient or Subrecipient(as applicable),applicant, sponsor,or owner,as the case may be,for transmission to the Department of Energy,the Contractor,or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements.It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own Not Specified/Other 21 2011-138 031510 records,without weekly submission to the sponsoring government agency(or the Recipient or Subrecipient (as applicable),applicant,sponsor,or owner). (B)Each payroll submitted shall be accompanied by a"Statement of Compliance,"signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following: (1)That the payroll for the payroll period contains the information required to be provided under§ 5.5(ax3xii)of Regulations,29 CFR part 5,the appropriate information is being maintained under §5.5(a)(3)(i)of Regulations,29 CFR part 5,and that such information is correct and complete; c (2)That each laborer or mechanic(including each helper,apprentice,and trainee)employed on the E Contract during the payroll period has been paid the full weekly wages earned,without rebate, M either directly or indirectly,and that no deductions have been made either directly or indirectly v from the full wages earned,other than permissible deductions as set forth in Regulations,29 CFR E part 3; U fJ (3)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe c benefits or cash equivalents for the classification of work performed,as specified in the applicable t j wage determination incorporated into the Contract. c m v_ (C)The weekly submission of a properly executed certification set forth on the reverse side of Optional — Form WH-347 shall satisfy the requirement for submission of the"Statement of Compliance"required by 3 paragraph(a)(3)(ii)(B)of this section. " v r m (D)The falsification of any of the above certifications may subject the Contractor or subcontractor to civil -- O or criminal prosecution under section 1001 of title 18 and section 3729 of title 31 of the United States Code. E a (iii)The Contractor or subcontractor shall make the records required under paragraph(a)(3)(i)of this section available for inspection,copying,or transcription by authorized representatives of the Department of Energy or the Department of Labor,and shall permit such representatives to interview employees during rn working hours on the job.if the Contractor or subcontractor fails to submit the required records or to make E them available,the Federal agency may,after written notice to the Contractor,sponsor,applicant,or owner, An take such action as may be necessary to cause the suspension of an further payment, >< y ake advance,rd guarantee of funds.Furthermore,failure to submit the required records upon request or to make such records m available may be grounds for debarment action pursuant to 29 CFR 5.12. (4)Apprentices and trainees— N C (i)Apprentices.Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship E program registered with the U.S.Department of labor,Employment and Training Administration,Office m of Apprenticeship Training,Employer and Labor Services,or with a State Apprenticeship Agency recognized by the Office,or if a person is employed in his Or her first 90 days of probationary employment G as an apprentice in such an apprenticeship program,who is not individually registered in the program,but who has been certified by the Office of Apprenticeship Training,Employer and Labor Services or a State Apprenticeship Agency(where appropriate)to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate,who is not registered or otherwise employed as stated above,shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed.In addition,any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination Not Specified/Other o1 Packet Pg. 159 2011-138 031510 for the work actually performed.When a Contractor is performing construction on a project in a locality other than that in which its program is registered,the ratios and wage rates(expressed in percentages of the journeyman's bourly rate)specified in the Contractor's or subcontractor's registered program shall be observed.Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress,expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program.If the apprenticeship program does not specify fringe benefits,apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification.If the Administrator determines that a different practice prevails for the applicable apprentice classification,fringes shall be paid in accordance with that determination.In the event the Office of Apprenticeship Training,Employer and Labor Services,or a State Apprenticeship Agency recognized by the Office,withdraws approval of an apprenticeship program,the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. v d (ii)Trainees.Except as provided in 29 CFR 5.16,trainees will not be permitted to work at less than the E predetermined rate for the work perforated unless they are employed pursuant to and individually registered in a program which has received prior approval,evidenced by formal certification by the U.S. Department of Labor,Employment and Training Administration.The ratio of trainees to journeymen on the c job site shall not be greater than permitted under the plan approved by the Employment and Training r j Administration.Every trainee must be paid at not less than the rate specified in the approved program for e the trainee's level of progress,expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination.Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the train=program does not mention fringe benefits,trainees shall be paid the full 3 amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour y Division determines that there is an apprenticeship program associated with the correspondingjoumeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices.Any _ employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage m rate on the wage determination for the classification of work actually performed.In addition,any trainee a performing work on thejob site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.In the event the Employment and Training Administration withdraws approval of a training program,the rn Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for S the work performed until an acceptable program is approved. T I w (iii)Equal employment opportunity.The utilization of apprentices,trainees,and journeymen under this part M shall be in conformity with the equal employment opportunity requirements of Executive Order 11246,as amended and 29 CFR part 30. 0 N (5)Compliance with Copeland Act requirements.The Contractor shall comply with the requirements of 29 CFR part 3,which are incorporated by reference in this Contract. y E M (6)Contracts and Subcontracts.The Recipient,Subrecipient,the Recipient's,and Subrecipient's contractors and subcontractor shall insert in any Contracts the clauses contained herein in(a)(1)through(I O)and such other clauses as the Department of Energy may by appropriate instructions require,and also a clause requiring the subcontractors Q to include these clauses in any lower tier subcontracts.The Recipient shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of the paragraphs in this clause. (7)Contract termination:debarment.A breach of the Contract clauses in 29 CFR 5.5 may be grounds for termination of the Contract,and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8)Compliance with Davis-Bacon and Related Act requirements.All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR pans 1,3,and 5 are herein incorporated by reference in this Contract. Not Specified/Other 23 i 2011-138 031510 v (9)Disputes concerning labor standards.Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes clause of this Contract.Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5,6,and 7.Disputes within the meaning of this clause include disputes between the Recipient,Subrecipient,the Contractor(or any of its subcontractors),and the contracting agency,the U.S.Department of Labor,or the employees or their representatives. (10)Certification of eligibility. (i)By entering into this Contract,the Contractor certifies that neither it(nor he or she)not any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1). c (ii)No part of this Contract shall be subcontracted to any person or firm ineligible for award of a E Government contract by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1). E � v (iii)The penalty for making false statements is prescribed in the U.S.Criminal Code, 18 U.S.C. 1001. E a (b)Contract Work Hours and Safety Standards Act.As used in this paragraph,the terms laborers and mechanics n include watchmen and guards. 0 U 1)Overtime requirements.No Contractor or subcontractor contracting for any part of the Contract work which may c require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in 1e any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate 3 of pay for all hours worked in excess of forty hours in such workweek. d; r m (2)Violation;liability for unpaid wages;liquidated damages.In the event of any violation of the clause set forth in �.. paragraph(b)(l)of this section,the Contractor and any subcontractor responsible therefor shall be liable for the t unpaid wages.in addition,such Contractor and subcontractor shall be liable to the United States(in the case of work d done under contract for the District of Columbia or a territory,to such District or to such territory),for liquidated E damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic,including d watchmen and guards,employed in violation of the clause set forth in paragraph(bXl)of this section,in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard rn workweek of forty hours without payment of the overtime wages required by the clause set forth in paragmph(b)(1) of this section. in ar (3)Withholding for unpaid wages and liquidated damages.The Department of Energy or the Recipient or Subrecipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld,from any moneys payable on amount of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor,or any other N federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same r prime contractor,such sums as may be determined to be necessary to satisfy any liabilities of such Contra ctor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph(b)(2)of this E section. U N (4)Contracts and Subcontracts.The Recipient,Subrecipient,and Recipient's and Subrecipient's contractor or a subcontractor shall insert in any Contracts,the clauses set forth in paragraph(b)(1)through(4)of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts.The Recipient shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs(b)(1)through(4)of this section.The Contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the Contract for all laborers and mechanics,including guards and watchmen,working on the Contract. Such records shall contain the name and address of each such employee,social security number,correct classifications,hourly rates of wages paid,daily and weekly number of hours worked,deductions made,and actual wages paid.The records to be maintained under this paragraph shall be made available by the Contractor or _ subcontractor for inspection,copying,or transcription by authorized representatives of the Department of Energy Not Specified/Other 24 2011-138 031510 and the Department of Labor,and the Contractor or subcontractor will permit such representatives to interview employees during working hours on the job. 31. HISTORIC PRESERVATION (Revised 3/17/10) Prior to the expenditure of Project funds to alter any historic structure or site,the Recipient or subrecipient shall ensure that it is compliant with 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. If applicable,the Recipient or subrecipient must contact the State Historic Preservation Officer(SHPO),and the Tribal Historic Preservation Officer(THPO)to coordinate the Section 106 review outlined in 36 CFR Part 800. In the event that a State,State SHPO and DOE enter into a Programmatic Agreement,the terms E of that Programmatic Agreement shall apply to all recipient and subrecipient activities within that State. 'o SHPO contact information is available at the following link: hn://www.ncshm.org/find/index.htm. THPO contact information is available at the following link: htm://www.nathoo.orR/map html. Section E 110(k)of the NHPA applies to DOE funded activities. U The Recipient or subrecipient certifies that it will retain sufficient documentation to demonstrate that the Recipient or subrecipient has received required approval(s)from the SHPO or THPO for the Project. 0 Recipients or subrecipien[s shall avoid taking any action that results in an adverse effect to histori U c c properties pending compliance with Section 106. The Recipient or subrecipient shall deem compliance 9 with Section 106 of the NHPA complete only after it has received this documentation. The Recipient or = sub-recipient shall upon receipt forward a digital copy of all documentation to DOE relating to NHPA compliance. Recipient will be required to report annually on September 1 the disposition of all historic v preservation consultations by category. E E v v m m rn c y d W M O N C E L U N Q Not Specified/Other i Packet Pg. 162 2011-138 (^, 031510 V ATTACHMENTI —INTELLECTUAL PROPERTY PROVISIONS Intellectual Property Provisions(NRD-1003) Nonresearch and Development Nonprofit organizations are subject to the intellectual property requirements at 10 CFR 600.136(a),(c)and(d). All other organizations are subject to the intellectual property requirements at 10 CFR 600.136(a)and(c). 600.136 Intangible property. v (a) Recipients may copyright any work that is subject to copyright and was developed,or for which ownership was purchased,under an award. DOE reserves a royalty-free,nonexclusive and irrevocable right to reproduce, d publish or otherwise use the work for Federal purposes,and to authorize others to do so. E Q (c) DOE has the right to: 0 (1) Obtain,reproduce,publish or otherwise use the data first produced under an award;and U c m (2) Authorize others to receive,reproduce,publish,or otherwise use such data for Federal purposes. _° 3 (d) In addition,in response to a Freedom of Information act(FOIA)request for research data relating to y published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law,the DOE shall request,and the recipient shall provide, within a reasonable time,the research data so that they can be made available to the public through the procedures established under the FOIA. If the DOE obtains the research data solely in response to a FOIA m request,the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the E research data. This fee should reflect the costs incurred by the agency,the recipient,and applicable P subrecipients. This fee is in addition to any fees the agency may assess under the FOIA(5 U.S.C. 552(a)(4XA)). rn c N X d W M O N G E L U N Q Not Specified/Other 26 Packet Pg. 163 ME RESOLUTION NO. 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO TO EXECUTE AN AMENDMENT TO THE PROFESSIONAL 3 SERVICES AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND WILLDAN ENGINEERING SERVICES FOR THE DESIGN AND 4 IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT AND RETROFIT d 5 PROGRAM. E0 c m 6 WHEREAS, on February 17, 2009, President Barack Obama signed into law the E v 7 American Recovery and Reinvestment Act (ARRA) of 2009; and E C 0 8 WHEREAS, one of the programs receiving funding from ARRA is the Energy c 9 Efficiency & Conservation Block Grant (EECBG) Program to fund projects that reduce 3 10 11 energy use and fossil fuel emissions and improve energy efficiency; and 12 WHEREAS, the EECBG Program received $3.2 billion in nationwide funding, and 0 MR 13 of that, the City of San Bernardino received a direct allocation of$1,954,000; and 14 WHEREAS, on December 20, 2010 the Mayor and Common Council authorized the `o_ 15 �_ creation of a Residential Energy Audit& Retrofit Rebate Program; and m 16 17 WHEREAS, the City of San Bernardino entered into the Professional Services E -0 18 Agreement with Willdan Engineering on June 21,2011, to perform services over a period of E 19 a 18 months; and 20 c 21 WHEREAS, Council approval is needed to transfer the remaining $73,106 EECBG c m funds to the Willdan budget for the implementation of the Residential Energy Audit and 22 3 23 Retrofit Rebate Program. EECBG funding that is not spent will be returned to the DOE. _ E E 24 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 25 CITY OF SAN BERNARDINO AS FOLLOWS: a 26 27 28 Packet Pg. 164 (" 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF �r SAN BERNARDINO TO EXECUTE AN AMENDMENT TO THE PROFESSIONAL 2 SERVICES AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO 3 AND WILLDAN ENGINEERING SERVICES FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT AND RETROFIT 4 PROGRAM. 5 SECTION 1. The City Manager is authorized and directed to execute an Amendment 6 to the Agreement by and between the City of San Bernardino and Willdan Engineering, 7 8 approved by Resolution 2011-138. A copy of the Amendment is attached hereto and 9 incorporated herein as Exhibit`B". 10 SECTION 2. The authorization granted herein is rescinded if it is not fully executed 11 by both parties within ninety(90)days of the passage of this Resolution. 12 13 14 15 16 17 18 /n 19 20 21 22 23 24 25 26 27 28 MN 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO TO EXECUTE AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO 3 AND WILLDAN ENGINEERING SERVICES FOR THE DESIGN AND IMPLEMENTATION OF A RESIDENTIAL ENERGY AUDIT AND RETROFIT 4 PROGRAM. m E 5 I HEREBY CERTTFY that the foregoing Resolution was duly adopted by the Mayor m E 6 and Common Council of the City of San Bernardino at a meeting Z 7 8 thereof,held on the day of 2012,by the following vote,to wit: E c m 9 Council Members: AYES NAYS ABSTAIN ABSENT °- 3 10 MARQUEZ 11 JENKINS 12 c 13 vALDIVTA 14 SHORETT 0 15 KELLEY 4 0 m 16 JOHNSON c 17 MCCAMMACK E v 18 m E 19 20 Georgeann Hanna,City Clerk 0 21 The foregoing resolution is hereby approved this day of ,2012. w 9 22 3 23 Patrick J. Moms,Mayor m E 24 City of San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN, City Attorney 27 By. 28