HomeMy WebLinkAboutFinal Contract Project t
.zr.W office of 85 7th Place East, Suite 500
1g1! St. Paul, MN 55101-2198
` P: 651.297.7047 F: 651.284.4211
www,energy.mn.gov
• - era.con t state.mn.us
QIN/ k S e.--to
January 6, 2011
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Eric Johnson, City Administrator
City of Oak Park Heights
14168 Oak Park Boulevard North
PO Box 2007
Stillwater, MN 55082-2007
Dear Eric Johnson,
Enclosed, for your records, please find the fully executed amendment to your contract B43935
with our office.
Thank you for your cooperation with this time sensitive matter.
• As originally stated, please use Exhibit A of the agreement to determine your reporting
requirements. You may send your report(s) and/or invoices to energy.contractsna,state.mn.us.
If you have any questions, please contact either Abby Finis at 651-296-6205 or myself at 651-
297-7047.
Sincerely,
at"t"1311/ttP-1
Kelly Cooper
Grant Specialist Intermediate
Enclosure
•
STATE OF MINNESOTA
V7,231.1 Amendment No. 1
• CFMS: B43935 """'�'�`
Agreement Start Date: 06/15/2010 Total Agreement Amount: $37,840.00
gliriginal Expiration Date: 03/31/2011 Original Agreement: $37,840.00
MINFurrent Expiration Date: 03/31/2011 Previous Amendment(s)Total: $
Requested Expiration Date: N/A This Amendment: $N/A
This amendment is by and between the State of Minnesota,acting through its Commissioner of Commerce("State")and
City of Oak Park Heights, 14168 Oak Park Boulevard North,PO Box 2007, Stillwater,MN 55082-2007 ("Grantee").
Recitals
1. The State has an agreement with the Grantee identified as CFMS B43935 ("Original Agreement")to provide energy
efficiency improvements.
2. This agreement is being amended to include U.S.Department of Energy's flow down requirements.
3. The State and the Grantee are willing to amend the Original Agreement as stated below.
Amendment(s)
REVISION 1. Clause 4.2.2"Federal Funds"is amended as follows:
4.2.2 .. . . . . .
the Grantee's failure to comply with federal requirements.
Federal funds.Payments under this grant contract will be made from federal funds obtained by the State
through the American Recovery and Reinvestment Act of 2009(Public Law 111-5). The Grantee is responsible
• for compliance with all federal requirements imposed on these funds and accepts full financial responsibility for
an re.uirements ime osed b the Grantee's failure to coin.1 with federal re.uirements.These re.uirements
include but are not limited to Title III 'art D of the Enera Folic and Conservation Act 42 U.S.C. 6321 et
seq. and amendments thereto);U.S.Department of Energy Financial Assistance Rules(10CFR600);and Title 2
of the Code of Federal Regulations.
REVISION 2. Clause XX 21. "Reporting"is amended as follows:
Section 1512 of the American Recovery and-Reinvestment Act of 2009(ARRA)states reeipients of"Recovery Act
.. . . - - . - -; . _ . _ .. . . . - .:•-:
does not comply with this requirement the-State reserves the right to withhold funding.
... - - - ._ -•
which must be submitted to the State by the 5 t h:: -. - . , - -- . -- . . - -' - . • - --
Section 1512 of the American Recovery and Reinvestment Act of 2009(ARRA)states recipients of"Recovery Act
funds must comply with the extensive reporting requirements."Laws of Minnesota 2009,Chapter 138,Article 5,
Section 2 accountabilit and trans.arenc re.man. s.ecifies additional reci ient re.ortin.re'uirements related to
ARRA funding.
•
City of Oak Park Heights-Commerce 1
Rev.10/10
STATE OF MINNESOTA
Amendment No. 1
CFMS: B43935
A) Monthly,the Grantee must submit progress reports detailing the progress and tasks completed of the grant
agreement funded in whole,or in part,with ARRA funding including percent of project completion to the State.
by the 5th day of each month for the preceding month's work.
B) Quarterly,the Grantee must submit additional grant related information, including but not limited to data
regarding hiring practices for jobs retained or created under this agreement and information related to training
where applicable.The Grantee shall report this information on a form prescribed by the State which must be
submitted to the State by the 5th day of each month following the end of the quarter for the preceding quarter's
work. If the grant contract ends prior to the end of the quarter,the Grantee shall submit all data relevant to this
requirement for that quarter up to the end date of the grant contract and submit it with the final report.
If a Grantee does not comply with these requirements the State reserves the right to withhold funding.
REVISION 3. Clause 22. "Compliance with U.S.Department of Energy's Flow Down Requirements"is added as
follows:
22 Compliance with U.S.Department of Energy's Flow Down Requirements
It is the responsibility of the Grantee to fully understand,and be in compliance with,all U.S.Department of
Energy's flow down requirements, found in Attachment 1 to this agreement.
REVISION 4.
Attachment 1 is hereby attached and incorporated into this agreement.
REVISION 5.
Exhibit C is replaced by Exhibit C-1, attached and incorporated herein by reference.
•
Except as amended herein,the terms and conditions of the Original Agreement and all previous amendments are
incorporated by reference and remain in full force and effect.
1. STATE ENCUMBRANCE VERIFICATION 3. MN DEPARTMENT OF COMMERCE
Individual certifies that funds have been encumbered as required by Individual certifies the applicable provisions of Minnesota
Minnesota Statutes,Sections 16A.15 and 16C.05. Statutes,Sections 16C.08,subdivisions 2 and 3 are reaffirmed
(with delegated authority) aita
(with delegated authorty)i Signe*• 1�iv.. r' f�.�1 1�. By:
2 / SPA'
Date: �/<.1 /o Title:
CFMS Contract No. Vf7JS Date: 1?- a7 /o
2. CITY OF OAK ARK HEIGHTS
The Grantee certifies tk'' e appropriate person(s)have executed
the grant contr ?orin17 alf of the Grantee as required by applicable
articles,byl s,jegd ions,or ordinances.
By: /1/
Title: • G f �A
Y'r, .
City of Oak Park Heights-Commerce 2
Rev.10/10
Exhibit C-1
Clause I.Davis Bacon Act and Contract Work Hours and Safety Standards Act.
itefinitions: For purposes of this clause,Clause I,Davis Bacon Act and Contract Work Hours and Safety Standards Act,
e 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 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 mean a
financial assistance instrument with a unit of State or local government where construction is performed by its
own employees.
(4) "Contracting Officer"means the DOE official authorized to execute an Award on behalf of DOE and who is
responsible for the business management and non-program aspects of the financial assistance process.
(5) "Recipient"means any entity other than an individual that receives an Award of Federal funds in the form
of a grant, cooperative agreement,or technology investment agreement directly from the Federal Government
and is financially accountable for the use of any DOE funds or property,and is legally responsible for carrying
out the terms and conditions of the program and Award.
(6) "Subaward"means an award of fmancial assistance in the form of money,or property in lieu of money,
made under an award by a Recipient to an eligible Subrecipient or by a Subrecipient to a lower-tier
subrecipient.The term includes fmancial 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"Award"
above.
(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.
(a)Davis Bacon Act
(1)Minimum wages.
(i)All laborers and mechanics employed or working upon 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),
will be paid unconditionally and not less often than once a week, and without subsequent deduction or
P Y q
rebate on any account(except such payroll deductions as are permitted by regulations issued by the
Secretary of Labor under the Copeland Act(29 CFR part 3)),the full amount of wages and bona fide fringe
benefits(or cash equivalents thereof)due at time of payment computed at rates not less than those
contained in the wage determination of the Secretary of Labor which is attached hereto and made a part
hereof,regardless of any contractual relationship which maybe alleged to exist between the Contractor and
such laborers and mechanics.
City of Oak Park Heights-Commerce 9
ant(Rev.11/08)
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2)of the
Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or
mechanics,subject to the provisions of paragraph(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 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 employer's 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)(1)(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.
(ii)(A)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 shall approve an additional
classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1)The work to be performed by the classification requested is not performed by a classification in the wage
determination;
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate,including any bona fide fringe benefits,bears a reasonable relationship to the
wage rates contained in the wage determination.
(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 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 days of receipt and so advise the Contracting Officer or will notify III
the Contracting Officer within the 30-day period that additional time is necessary.
(C) In the event the Contractor,the laborers or mechanics to be employed in the classification or their
representatives,and the Contracting Officer do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits,where appropriate),the Contracting Officer shall refer
the questions,including the views of all interested parties and the recommendation of the Contracting Officer,
to the Administrator for determination. The Administrator,or an authorized representative,will issue a
determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting
Officer within the 30-day period that additional time is necessary.
(D) The wage rate(including fringe benefits where appropriate)determined pursuant to 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 classification.
(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
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.
G-City of Oak Park Heights-Commerce
Grant(Rev.11/08)
(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
S 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 helper, employed 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 Contractor,
sponsor,applicant, or owner,take such action as may be necessary to cause the suspension of any further payment,
advance,or guarantee of funds until such violations have ceased.
(3)Payrolls and basic records.
(i)Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the
work and preserved for a period of three years thereafter for all laborers and mechanics working at 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). Such records shall contain the name, address,and social
security number of each such worker,his or her correct 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 1(b)(2)(B)of the Davis-Bacon Act),daily and weekly number of hours worked,
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 1(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
communicated in writing to the laborers or mechanics affected,and records which show the costs
S anticipated or the actual cost incurred in providing such benefits.Contractors employing apprentices or
trainees under approved programs shall maintain written evidence of the registration of apprenticeship
programs and certification of trainee programs,the registration of the apprentices and trainees, and the
ratios and wage rates prescribed in the applicable programs.
(ii) (A)The Contractor shall submit weekly for each week in which any Contract work is performed
a copy 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 included on weekly transmittals.Instead,the payrolls shall only need to include
an individually identifying number for each employee(e.g.,the last four digits of the employee's social
security number).The required 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
http://www.dol.gov/esalwhd/forms/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 records,without weekly submission to the
sponsoring government agency(or the Recipient or Subrecipient(as applicable), applicant, sponsor, or
owner).
41110 City of Oak Park Heights-Commerce 11
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(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§ 5.550
(a)(3)(ii)of Regulations,29 CFR part 5,the appropriate information is being maintained under§ 5.5 �1
(a)(3)(i)of Regulations,29 CFR part 5,and that such information is correct and complete;
(2) That each laborer or mechanic(including each helper,apprentice,and trainee)employed on the
Contract during the payroll period has been paid the full weekly wages earned,without rebate,either
directly or indirectly,and that no deductions have been made either directly or indirectly from the full
wages earned,other than permissible deductions as set forth in Regulations,29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe
benefits or cash equivalents for the classification of work performed, as specified in the applicable
wage determination incorporated into the Contract.
(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 paragraph(a)(3)(ii)(B)of this section.
(D)The falsification of any of the above certifications may subject the Contractor or subcontractor to
civil or criminal prosecution under section 1001 of title 18 and section 3729 of title 31 of the United
States Code.
(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 working hours on the job.If the Contractor or subcontractor fails to submit the
required records or to make them available,the Federal agency may,after written notice to the
Contractor,sponsor,applicant,or owner,take such action as may be necessary to cause the suspension
of any further payment, advance, or guarantee of funds.Furthermore, failure to submit the required
records upon request or to make such records available may be grounds for debarment action pursuant
to 29 CFR 5.12.
(4)Apprentices and trainees-
(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 program registered with the U.S.Department of Labor,Employment and Training
Administration,Office 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 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 for the work actually performed.Where 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 hourly 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
G-City of Oak Park Heights-Commerce
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, f .
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
III 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.
(ii)Trainees. Except as provided in 29 CFR 5.16,trainees will not be permitted to work at less than the
predetermined rate for the work performed 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 job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at not less than the rate specified
in the approved program for 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 trainee program does not mention fringe
benefits,trainees shall be paid the full amount of fringe benefits listed on the wage determination
unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship
program associated with the corresponding journeyman 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 rate on the wage determination
for the classification of work actually performed.In addition,any trainee 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 for the work actually performed.In the event the
Employment and Training Administration withdraws approval of a training program,the Contractor
will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(iii)Equal employment opportunity. The utilization of apprentices,trainees, and journeymen under this
part shall be in conformity with the equal employment opportunity requirements of Executive Order
11246,as amended and 29 CFR part 30.
(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.
(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(10)and such other
clauses as the Department of Energy may by appropriate instructions require,and also a clause requiring the
subcontractors 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 parts 1, 3,and 5 are herein incorporated by reference in this
Contract.
(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),
41P and the contracting agency,the U.S.Department of Labor,or the employees or their representatives.
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•
(10)Certification of eligibility.
(i)By entering into this Contract,the Contractor certifies that neither it(nor he or she)nor 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).
(ii)No part,of this Contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii)The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
(b)Contract Work Hours and Safety Standards Act.As used in this paragraph,the terms laborers and mechanics
include watchmen and guards.
(1) Overtime requirements.No Contractor or subcontractor contracting for any part of the Contract work which
may require or involve the employment of laborers or mechanics shall require or permit any such laborer or
mechanic in 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 of pay for all hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in
paragraph(b)(1)of this section,the Contractor and any subcontractor responsible therefor shall be liable for the
unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United States(in the case of
work done under contract for the District of Columbia or a territory,to such District or to such territory), for
liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or
mechanic,including watchmen and guards, employed in violation of the clause set forth in paragraph(b)(1)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 workweek of forty hours without payment of the overtime wages required by the clause set
forth in paragraph(b)(1)of this section.
(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 o
Labor withhold or cause to be withheld,from any moneys payable on account 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
federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same
prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or
subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph(b)(2)of
this section.
(4) Contracts and Subcontracts.The Recipient, Subrecipient, and Recipient's and Subrecipient's contractor or
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.
(5) 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
(6) 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 and the Department of Labor,and the
Contractor or subcontractor will permit such representatives to interview employees during working hours on the
job
G-City of Oak Park Heights-Commerce
Grant(Rev.11/08)
Attachment 1
U.S. Department of Energy's
Flow Down Provisions
S
City of Oak Park Heights-Commerce Attachment 1 Cover
Rev.10/10
ti i
SUBGRANT FLOW DOWN PROVISIONS FOR WAP AND SEP FINANCIAL
ASSISTANCE AWARDS
S
Resolution of Conflicting Conditions
Statement of Federal Stewardship
Site Visits
Reporting Requirements
Publications
Federal, State, and Municipal Requirements
Intellectual Property Provisions and Contact Information
Lobbying Restrictions
Notice Regarding the Purchase of American-Made Equipment and Products --
Sense of Congress
Decontamination and/or Decommissioning(D&D) Costs
Historic Preservation
Flow Down Terms For ARRA Awards–See Prescriptions for Applicability
Special Provisions Relating To Work Funded Under American Recovery and
Reinvestment Act of 2009
Reporting and Registration Requirements Under Section 1512 of The Recovery Act
Required Use of American Iron, Steel, and Manufactured Goods (Covered Under
International Agreements)—Section 1605 of the American Recovery and
Reinvestment Act of 2009
Wage Rate Requirements Under Section 1606 Of The Recovery Act
Recovery Act Transactions Listed In Schedule of Expenditures of Federal Awards
and Recipient Responsibilities For Informing Subrecipients
Davis Bacon Act Requirements (For WAP ARRA Financial Assistance Awards)
Davis Bacon Act and Contract Work Hours and Safety Standards Act (For Use in
• SEP Financial Assistance Awards)
Attachment 1 —Page 1
From 10 CFR 600.236-Procurement •
(a) States. When procuring property and services under a grant, a State will follow the
same policies and procedures it uses for procurements from its non-Federal funds. The
State will ensure that every purchase order or other contract includes any clauses required
by Federal statutes and executive orders and their implementing regulations. Other
grantees and sub-grantees will follow paragraphs (b)through(i) in this section.
Note: 600.236 (i)-Contract provisions. A grantee's and sub-grantee's contracts MUST
contain provisions in paragraph(i) of this section(1)through(13).
10 CFR 600.236 -- http://ecfr.gpoaccess.gov/cgi/t/text/text-
idx?c=ecfr&sid=1 d87da29f6087f0251 f78954c8888ffl&rgn=div8&view=text&node=10:
4.0.1.3.9.3.20.23&idno=l 0
From 10 CFR 600.237-Subgrants
Retention and Access Requirements for Records
http://ecfr.gpoaccess.gov/cgi/t!text/text-
idx?type=simple;c=ecfr;cc=ecfr;sid=4c22613d54c8ee557f9dc9d6015ecic9;idno=10;regi
on—DIV 1;q 1=600.242;rgn=div8;view=text;node=10%3A4.0.1.3.9.3.20.27
Conform any advances of grant funds to sub-grantees substantially to the same standards
of timing and amount that apply to cash advances by Federal agencies (refer state to 10
CFR 600.221(c).
10 CFR 60.221(c)Advances. Grantees and subgrantees shall be paid in advance,provided
they maintain or demonstrate the willingness and ability to maintain procedures to
minimize the time elapsing between the transfer of the funds and their disbursement by
the grantee or subgrantee.
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Attachment 1 —Page 2
RESOLUTION OF CONFLICTING CONDITIONS—MANDATORY FLOW DOWN REQUIRED4
AWARD AGREEMENT TERMS AND CONDITIONS 4
S PAYMENT PROCEDURES-ADVANCES THROUGH THE AUTOMATED STANDARD
APPLICATION FOR PAYMENTS(ASAP)SYSTEM 4
REBUDGETING AND RECOVERY OF INDIRECT COSTS-REIMBURSABLE INDIRECT
COSTS AND FRINGE BENEFITS 5
USE OF PROGRAM INCOME-ADDITION 5
STATEMENT OF FEDERAL STEWARDSHIP—MANDATORY FLOW DOWN REQUIRED 5
SITE VISITS—MANDATORY FLOW DOWN REQUIRED 5
REPORTING REQUIREMENTS--MANDATORY FLOW DOWN REQUIRED 6
PUBLICATIONS—MANDATORY FLOW DOWN REQUIRED 6
FEDERAL,STATE,AND MUNICIPAL REQUIREMENTS—MANDATORY FLOW DOWN
REQUIRED 7
INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION—
MANDATORY FLOW DOWN REQUIRED 7
LOBBYING RESTRICTIONS—MANDATORY FLOW DOWN REQUIRED 7
NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND
PRODUCTS--SENSE OF CONGRESS—MANDATORY FLOW DOWN REQUIRED 7
DECONTAMINATION AND/OR DECOMMISSIONING(D&D)COSTS—MANDATORY FLOW
DOWN REQUIRED 7
HISTORIC PRESERVATION-- MANDATORY FLOW DOWN REQUIRED 8
SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009 8
REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERY ACT 13
REQUIRED USE OF AMERICAN IRON,STEEL,AND MANUFACTURED GOODS--SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 13
REQUIRED USE OF AMERICAN IRON,STEEL,AND MANUFACTURED GOODS(COVERED
UNDER INTERNATIONAL AGREEMENTS)—SECTION 1605 OF THE AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009 15
WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT 19
RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF
FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING 19
DAVIS BACON ACT REQUIREMENTS 20
DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 30
•
Attachment 1 —Page 3
SPECIAL TERMS AND CONDITIONS FOR USE IN MOST GRANTS AND
COOPERATIVE AGREEMENTS
I
RESOLUTION OF CONFLICTING CONDITIONS—MANDATORY FLOW
DOWN REQUIRED
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.
AWARD AGREEMENT TERMS AND CONDITIONS
This award/agreement consists of the Grant and Cooperative Agreement cover page,plus
the following:
a. Special terms and conditions.
b. Attachments:
Attachment No. Title
1 Intellectual Property Provisions
2 Federal Assistance Reporting Checklist
3 Budget Pages
4 State Annual File
5 State Master File
6 Wage Determination
c. Applicable program regulations [Specify][Date]
d. DOE Assistance Regulations, 10 CFR Part 600 at http://ecfr.gpoaccess.gov and if the
award is for research and to a university or non-profit, the Research Terms & Conditions
and the DOE Agency Specific Requirements at
http://www.nsfgov/bfa/dias/policy/rtc/index.jsp.
e. Application/proposal as approved by DOE.
f.National Policy Assurances to Be Incorporated as Award Terms in effect on date of
award at http://management.energy.gov/business doe/1374.htm.
PAYMENT PROCEDURES -ADVANCES THROUGH THE AUTOMATED
STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM
a. Method of Payment. Payment will be made by advances through the Department of
Treasury's ASAP system.
b. Requesting Advances. Requests for advances must be made through the ASAP
system. You may submit requests as frequently as required to meet your needs to
disburse funds for the Federal share of project costs. If feasible, you should time each
request so that you receive payment on the same day that you disburse funds for direct
project costs and the proportionate share of any allowable indirect costs. If same-day
transfers are not feasible, advance payments must be as close as is administratively
feasible to actual disbursements.
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Attachment 1 —Page 4
c. Adjusting payment requests for available cash. You must disburse any funds that are
available from repayments to and interest earned on a revolving fund,program income,
rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest
earned on any of those funds before requesting additional cash payments from DOE.
d. Payments. All payments are made by electronic funds transfer to the bank account
identified on the ASAP Bank Information Form that you filed with the U.S. Department
of Treasury.
REBUDGETING AND RECOVERY OF INDIRECT COSTS - REIMBURSABLE
INDIRECT COSTS AND FRINGE BENEFITS
a. If actual allowable indirect costs are less than those budgeted and funded under the
award, you may use the difference to pay additional allowable direct costs during the
project period. If at the completion of the award the Government's share of total
allowable costs (i.e., direct and indirect), is 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.
USE OF PROGRAM INCOME -ADDITION
If you earn program income during the project period as a result of this award,you may
add the program income to the funds committed to the award and use it to further eligible
project objectives.
STATEMENT OF FEDERAL STEWARDSHIP—MANDATORY FLOW DOWN
REQUIRED
DOE will exercise normal Federal stewardship in overseeing the project activities
performed under this award. Stewardship activities include, but are not limited to,
conducting site visits; reviewing performance and financial reports; providing technical
assistance and/or temporary intervention in unusual circumstances to correct deficiencies
which develop during the project; assuring compliance with terms and conditions; and
reviewing technical performance after project completion to ensure that the award
objectives have been accomplished.
SITE VISITS—MANDATORY FLOW DOWN REQUIRED
DOE's authorized representatives have the right to make site visits at reasonable times to
review project accomplishments and management control systems and to provide
technical assistance, if required. You must provide, and must require your subawardees
• to provide, reasonable access to facilities, office space, resources, and assistance for the
Attachment 1 —Page 5
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.
REPORTING REQUIREMENTS -- MANDATORY FLOW DOWN REQUIRED
a. Requirements. The reporting requirements for this award are identified on the Federal
Assistance Reporting Checklist, DOE F 4600.2, attached to this award. Failure to
comply with these reporting requirements is considered a material noncompliance with
the terms of the award. Noncompliance may result in withholding of future payments,
suspension, or termination of the current award, and withholding of future awards. A
willful failure to perform, a history of failure to perform, or unsatisfactory performance
of this and/or other financial assistance awards,may also result in a debarment action to
preclude future awards by Federal agencies.
b. 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 for journal articles produced under the award will appear on
the DOE Energy Citations Database (www.osti.gov/energycitations).
c. 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.
•
PUBLICATIONS—MANDATORY FLOW DOWN REQUIRED
a. You are encouraged to publish or otherwise make publicly available the results of the
work conducted under the award.
b. An acknowledgment of Federal support and a disclaimer must appear in the
publication of any material, whether copyrighted or not, based on or developed under this
project, as follows:
Acknowledgment: "This material is based upon work supported by the Department of
Energy under Award Number DE-EE0000095
Disclaimer: "This report was prepared as an account of work sponsored by an agency of
the United States Government. Neither the United States Government nor any agency
thereof, nor any of their employees, makes any warranty, express or implied, or assumes
any legal liability or responsibility for the accuracy, completeness, or usefulness of any
information, apparatus,product, or process disclosed, or represents that its use would not
infringe privately owned rights. Reference herein to any specific commercial product,
process, or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by the
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Attachment 1 —Page 6
United States Government or any agency thereof. The views and opinions of authors
expressed herein do not necessarily state or reflect those of the United States Government
• or any agency thereof."
FEDERAL, STATE,AND MUNICIPAL REQUIREMENTS—MANDATORY
FLOW DOWN REQUIRED
You must obtain any required permits and comply with applicable federal, state, and
municipal laws, codes, and regulations for work performed under this award.
INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION
—MANDATORY FLOW DOWN REQUIRED
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
http://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
http://www.gc.doe.gov/documents/Intellectual_Property (IP) Service Providers for Ac
quisition.pdf
LOBBYING RESTRICTIONS—MANDATORY FLOW DOWN REQUIRED
By accepting funds under this award, you agree that none of the funds obligated on the
award shall be expended, directly or indirectly,to influence congressional action on any
legislation or appropriation matters pending before Congress, other than to communicate
to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to
those prescribed elsewhere in statute and regulation.
NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT
AND PRODUCTS -- SENSE OF CONGRESS—MANDATORY FLOW DOWN
REQUIRED
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.
DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS—
MANDATORY FLOW DOWN REQUIRED
Notwithstanding any other provisions of this Agreement, the Government shall not be
responsible for or have any obligation to the recipient for(i) Decontamination and/or
Decommissioning (D&D) of any of the recipient's facilities, or(ii) any costs which may
be incurred by the recipient in connection with the D&D of any of its facilities due to the
Attachment 1 —Page 7
performance of the work under this Agreement, whether said work was performed prior
to or subsequent to the effective date of this Agreement.
HISTORIC PRESERVATION -- MANDATORY FLOW DOWN REQUIRED •
Prior to the expenditure of Federal funds to alter any structure or site,the Recipient is
required to comply with the requirements of Section 106 of the National Historic
Preservation Act(NHPA), consistent with DOE's 2009 letter of delegation of authority
regarding the NHPA. Section 106 applies to historic properties that are listed in or
eligible for listing in the National Register of Historic Places. In order to fulfill the
requirements of Section 106,the recipient must contact the State Historic Preservation
Officer(SHPO), and, if applicable, the Tribal Historic Preservation Officer(THPO), to
coordinate the Section 106 review outlined in 36 CFR Part 800. SHPO contact
information is available at the following link: http://www.ncshpo.org/find/index.htm.
THPO contact information is available at the following link:
http://www.nathpo.org/map.html .
Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid
taking any action that results in an adverse effect to historic properties pending
compliance with Section 106.
Recipients should be aware that the DOE Contracting Officer will consider the recipient
in compliance with Section 106 of the NHPA only after the Recipient has submitted
adequate background documentation to the SHPO/THPO for its review, and the
SHPO/THPO has provided written concurrence to the Recipient that it does not object to
its Section 106 finding or determination. Recipient shall provide a copy of this •
concurrence to the Contracting Officer.
Prescription: This clause must be included in all grants. cooperative agreements and TIAs
(new or amended) when funds appropriated under the Recovery Act are obligated to the
agreement.
SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009
Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act)
( rY )
was enacted to preserve and create jobs and promote economic recovery, assist those
most impacted by the recession, provide investments needed to increase economic
efficiency by spurring technological advances in science and health, invest in
transportation, environmental protection, and other infrastructure that will provide long-
term economic benefits, stabilize State and local government budgets, in order to
minimize and avoid reductions in essential services and counterproductive State and local
tax increases. Recipients shall use grant funds in a manner that maximizes job creation
and economic benefit.
Attachment 1 —Page 8
The Recipient shall comply with all terms and conditions in the Recovery Act relating
• generally to governance, accountability, transparency, data collection and resources as
specified in Act itself and as discussed below.
Recipients should begin planning activities for their first tier 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 provided these details as they become available.
The Recipient must comply with all requirements of the Act. If the recipient believes
there is any inconsistency between ARRA requirements and current award terms and
conditions,the issues will be referred to the Contracting Officer for reconciliation.
Definitions
• For purposes of this clause, Covered Funds means funds expended or obligated from
appropriations under the American Recovery and Reinvestment Act of 2009, Pub. L.
111-5. Covered Funds will have special accounting codes and will be identified as
Recovery Act funds in the grant, cooperative agreement or TIA and/or modification using
Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015.
Non-Federal employer means any employer with respect to covered funds—the
contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor,
subcontractor, grantee, or recipient is an employer; and any professional membership
organization, certification of other professional body, any agent or licensee of the Federal
government, or any person acting directly or indirectly in the interest of an employer
receiving covered funds; or with respect to covered funds received by a State or local
government, the State or local government receiving the funds and any contractor or
subcontractor receiving the funds and any contractor or subcontractor of the State or local
government; and does not mean any department, agency, or other entity of the federal
government.
Recipient means any entity that receives Recovery Act funds directly from the Federal
government(including Recovery Act funds received through grant, loan, or contract)
other than an individual and includes a State that receives Recovery Act Funds.
Special Provisions
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Attachment 1 —Page 9
A. Flow Down Requirement
Recipients must include these special terms and conditions in any subaward. •
B. Segregation of Costs
Recipients must segregate the obligations and expenditures related to funding under the
Recovery Act. Financial and accounting systems should be revised as necessary to
segregate, track and maintain these funds apart and separate from other revenue streams.
No part of the funds from the Recovery Act shall be commingled with any other funds or
used for a purpose other than that of making payments for costs allowable for Recovery
Act projects.
C. Prohibition on Use of Funds
None of the funds provided under this agreement derived from the American Recovery
and Reinvestment Act of 2009, Pub. L. 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.
D. Access to Records
With respect to each financial assistance agreement awarded utilizing at least some of the
funds appropriated or otherwise made available by the American Recovery and
•
Reinvestment Act of 2009, Pub. L. 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 subgrant; and
(2)to interview any officer or employee of the contractor, grantee, subgrantee, or
agency regarding such transactions.
E. Publication
An application may contain technical data and other data, including trade secrets and/or
privileged or confidential information, which the applicant does not want disclosed to the
public or used by the Government for any purpose other than the application. To protect
such data, the applicant should specifically identify each page including each line or
paragraph thereof containing the data to be protected and mark the cover sheet of the
application with the following Notice as well as referring to the Notice on each page to
which the Notice applies:
Notice of Restriction on Disclosure and Use of Data
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Attachment 1 —Page 10
The data contained in pages ---- of this application have been submitted in confidence
and contain trade secrets or proprietary information, and such data shall be used or
• disclosed only for evaluation purposes,provided that if this applicant receives an award
as a result of or in connection with the submission of this application, DOE shall have the
right to use or disclose the data here to the extent provided in the award. This restriction
does not limit the Government's right to use or disclose data obtained without restriction
from any source, including the applicant.
Information about this agreement will be published on the Internet and linked to the
website www.recovery.gov, maintained by the Accountability and Transparency Board.
The Board may exclude posting contractual or other information on the website on a
case-by-case basis when necessary to protect national security or to protect information
that is not subject to disclosure under sections 552 and 552a of title 5, United States
Code.
F. Protecting State and Local Government and Contractor Whistleblowers.
The requirements of Section 1553 of the Act are summarized below. They include, but
are not limited to:
Prohibition on Reprisals: An employee of any non-Federal employer receiving covered
funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may
not be discharged, demoted, or otherwise discriminated against as a reprisal for
disclosing, including a disclosure made in the ordinary course of an employee's duties, to
• the Accountability and Transparency Board, an inspector general, the Comptroller
General, a member of Congress, a State or Federal regulatory or law enforcement agency,
a person with supervisory authority over the employee (or other person working for the
employer who has the authority to investigate, discover or terminate misconduct, a court
or grant jury, the head of a Federal agency, or their representatives information that the
employee believes is evidence of:
• gross management of an agency contract or grant relating to covered funds;
• a gross waste of covered funds
• a substantial and specific danger to public health or safety related to the
implementation or use of covered funds;
• an abuse of authority related to the implementation or use of covered funds; or
• as violation of law, rule, or regulation related to an agency contract (including
the competition for or negotiation of a contract) or grant, awarded or issued
relating to covered funds.
Agency Action: Not later than 30 days after receiving an inspector general report of an
alleged reprisal,the head of the agency shall determine whether there is sufficient basis to
conclude that the non-Federal employer has subjected the employee to a prohibited
reprisal. The agency shall either issue an order denying relief in whole or in part or shall
take one or more of the following actions:
• Order the employer to take affirmative action to abate the reprisal.
• Order the employer to reinstate the person to the position that the person held
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Attachment 1 —Page 11
before the reprisal,together with compensation including back pay, compensatory
damages, employment benefits, and other terms and conditions of employment
that would apply to the person in that position if the reprisal had not been taken.
•
• Order the employer to pay the employee an amount equal to the aggregate
amount of all costs and expenses(including attorneys' fees and expert witnesses'
fees)that were reasonably incurred by the employee for or in connection with,
bringing the complaint regarding the reprisal, as determined by the head of a court
of competent jurisdiction.
Nonenforceablity of Certain Provisions Waiving Rights and remedies or Requiring
Arbitration: Except as provided in a collective bargaining agreement,the rights and
remedies provided to aggrieved employees by this section may not be waived by any
agreement, policy, form, or condition of employment, including any predispute
arbitration agreement. No predispute arbitration agreement shall be valid or enforceable
if it requires arbitration of a dispute arising out of this section.
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered
funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall
post notice of the rights and remedies as required therein. (Refer to section 1553 of the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, www.Recovery.gov,
for specific requirements of this section and prescribed language for the notices.).
G. Request for Reimbursement (this version is included in WAP/SEP awards with
states)
RESERVED •
H. False Claims Act
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 laws pertaining to fraud,
conflict or interest, bribery, gratuity or similar misconduct involving those funds.
I. Information in supporting of Recovery Act Reporting
Recipient may be required to submit backup documentation for expenditures of funds
under the Recovery Act including such items as timecards and invoices. Recipient shall
provide copies of backup documentation at the request of the Contracting Officer or
designee.
J. Availability of Funds
Funds appropriated under the Recovery Act and obligated to this award are available for
reimbursement of costs until September 30, 2015.
Attachment 1 —Page 12
Prescription: The following award term shall be used to implement the recipient reporting
• and registration requirements in the Recovery Act section 1512.
REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512
OF THE RECOVERY ACT
(a) This award requires the recipient to complete projects or activities which are funded
under the American Recovery and Reinvestment Act of 2009 (Recovery Act) and to
report on use of Recovery Act funds provided through this award. Information from these
reports will be made available to the public.
(b) The reports are due no later than ten calendar days after each calendar quarter in
which the recipient receives the assistance award funded in whole or in part by the
Recovery Act.
(c) Recipients and their first-tier recipients must maintain current registrations in the
Central Contractor Registration(http://www.ccr.gov) at all times during which they have
active federal awards funded with Recovery Act funds. A Dun and Bradstreet Data
Universal Numbering System(DUNS)Number(http://www.dnb.com)is one of the
requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section 1512(c) of the
Recovery Act using the reporting instructions and data elements that will be provided
online at http://www.FederalReporting.gov and ensure that any information that is pre-
filled is corrected or updated as needed.
Prescription: When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work and the total project value is
estimated less than$7,443,000, the agency shall use this award term.
REQUIRED USE OF AMERICAN IRON,STEEL,AND MANUFACTURED GOODS--SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(a)Definitions.As used in this award term and condition--
(1)Manufactured good means a good brought to the construction site for incorporation into the building or
work that has been--
(i)Processed into a specific form and shape;or
(ii)Combined with other raw material to create a material that has different properties than the properties of
the individual raw materials.
(2)Public building and public work means a public building of,and a public work of,a governmental
entity(the United States;the District of Columbia;commonwealths,territories,and minor outlying islands
of the United States;State and local governments;and multi-State,regional,or interstate entities which
411Phave governmental functions).These buildings and works may include,without limitation,bridges,dams,
Attachment 1 —Page 13
r - -
plants,highways,parkways,streets, subways,tunnels, sewers,mains,power lines,pumping stations,heavy
generators,railways,airports,terminals,docks,piers,wharves,ways,lighthouses,buoys,jetties,
breakwaters,levees,and canals,and the construction,alteration,maintenance,or repair of such buildings •
and works.
(3)Steel means an alloy that includes at least 50 percent iron,between.02 and 2 percent carbon,and may
include other elements.
(b)Domestic preference. (1)This award term and condition implements Section 1605 of the American
Recovery and Reinvestment Act of 2009(Recovery Act)(Pub.L. 111--5),by requiring that all iron,steel,
and 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:
[Award official to list applicable excepted materials or indicate"none"]
(3)The award official may add other iron,steel,and/or manufactured goods to the list in paragraph(b)(2)
of this section and condition if the Federal Government determines that--
(i)The cost of the domestic iron, steel,and/or manufactured goods would be unreasonable.The cost of
domestic iron,steel,or manufactured goods used in the project is unreasonable when the cumulative cost of
such material will increase the cost of the overall project by more than 25 percent;
(ii)The iron,steel,and/or manufactured good is not produced,or manufactured in the United States in
sufficient and reasonably available quantities and of a satisfactory quality;or
(iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the
•
public interest.
(c)Request for determination of inapplicability of Section 1605 of the Recovery Act.(1)(i)Any recipient
request to use foreign iron,steel,and/or manufactured goods in accordance with paragraph(b)(3)of this
section shall include adequate information for Federal Government evaluation of the request,including--
(A)A description of the foreign and domestic iron,steel,and/or manufactured goods;
(B)Unit of measure;
(C)Quantity;
(D)Cost;
(E)Time of delivery or availability;
(F)Location of the project;
(G)Name and address of the proposed supplier;and
(H)A detailed justification of the reason for use of foreign iron, steel,and/or manufactured goods cited in
accordance with paragraph(b)(3)of this section.
(ii)A request based on unreasonable cost shall include a reasonable survey of the market and a completed
cost comparison table in the format in paragraph(d)of this section.
Attachment 1 —Page 14
(iii)The cost of iron,steel,and/or manufactured goods material shall include all delivery costs to the
construction site and any applicable duty.
• (iv)Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction,alteration,maintenance,or repair shall explain why the recipient could not
reasonably foresee the need for such determination and could not have requested the determination before
the funds were obligated.If the recipient does not submit a satisfactory explanation,the award official need
not make a determination.
(2)If the Federal Government determines after funds have been obligated for a project for construction,
alteration,maintenance,or repair that an exception to section 1605 of the Recovery Act applies,the award
official will amend the award to allow use of the foreign iron,steel,and/or relevant manufactured goods.
When the basis for the exception is nonavailability or public interest,the amended award shall reflect
adjustment of the award amount,redistribution of budgeted funds,and/or other actions taken to cover costs
associated with acquiring or using the foreign iron,steel,and/or relevant manufactured goods. When the
basis for the exception is the unreasonable cost of the domestic iron,steel,or manufactured goods,the
award official shall adjust the award amount or redistribute budgeted funds by at least the differential
established in 2 CFR 176.110(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:
Foreign and Domestic Items Cost Comparison
Description Unit of measure Quantity Cost
(dollars)*
Item 1:
Foreign steel,iron,or manufactured good
Domestic steel,iron,or manufactured good
Item 2:
Foreign steel,iron,or manufactured good
Domestic steel, iron,or manufactured good
[List name,address,telephone number,email address,and contact for suppliers surveyed.Attach copy of
response;if oral,attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
Prescription: When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work with a total project value over
$7,443,000 that involves iron, steel, and/or manufactured goods materials covered under
international agreements, the agency shall use this award term.
REQUIRED USE OF AMERICAN IRON, STEEL,AND MANUFACTURED
GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS)—SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
•
Attachment 1 —Page 15
(a)Definitions. As used in this award term and condition—
Designated country—(1)A World Trade Organization Government Procurement Agreement country
(Aruba,Austria,Belgium,Bulgaria,Canada,Cyprus,Czech Republic,Denmark,Estonia,Finland,France, •
Germany,Greece,Hong Kong,Hungary,Iceland,Ireland,Israel,Italy,Japan,Korea(Republic of),Latvia,
Liechtenstein,Lithuania,Luxembourg,Malta,Netherlands,Norway,Poland,Portugal,Romania,
Singapore,Slovak Republic, Slovenia, Spain, Sweden, Switzerland,and United Kingdom;
(2)A Free Trade Agreement(FTA)country(Australia,Bahrain,Canada,Chile,Costa Rica,Dominican
Republic,El Salvador,Guatemala,Honduras,Israel,Mexico,Morocco,Nicaragua,Oman,Peru,or
Singapore);or
(3)A United States-European Communities Exchange of Letters(May 15, 1995)country:Austria,
Belgium,Bulgaria,Cyprus,Czech Republic,Denmark,Estonia,Finland,France,Germany,Greece,
Hungary,Ireland,Italy,Latvia,Lithuania,Luxembourg,Malta,Netherlands,Poland,Portugal,Romania,
Slovak Republic, Slovenia, Spain, Sweden,and United Kingdom.
Designated country iron, steel, and/or manufactured goods—(1)Is wholly the growth,product,or
manufacture of a designated country;or
(2)In the case of a manufactured good that consist in whole or in part of materials from another country,
has been substantially transformed in a designated country into a new and different manufactured good
distinct from the materials from which it was transformed.
Domestic iron, steel, and/or manufactured good—(1)Is wholly the growth,product,or manufacture of the
United States;or
(2)In the case of a manufactured good that consists in whole or in part of materials from another country,
has been substantially transformed in the United States into a new and different manufactured good distinct
411
from the materials from which it was transformed.There is no requirement with regard to the origin of
components or subcomponents in manufactured goods or products,as long as the manufacture of the goods
occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not
domestic or designated country iron,steel,and/or manufactured good.
Manufactured good means a good brought to the construction site for incorporation into the building or
work that has been—
(1)Processed into a specific form and shape;or
(2)Combined with other raw material to create a material that has different properties than the properties of
the individual raw materials.
Public building and public work means a public building of, and a public work of,a governmental entity
(the United States;the District of Columbia;commonwealths,territories,and minor outlying islands of the
United States; State and local governments;and multi-State,regional,or interstate entities which have
governmental functions).These buildings and works may include,without limitation,bridges,dams,plants,
highways,parkways, streets,subways,tunnels,sewers,mains,power lines,pumping stations,heavy
generators,railways,airports,terminals,docks,piers,wharves,ways,lighthouses,buoys,jetties,
breakwaters,levees,and canals,and the construction,alteration,maintenance,or repair of such buildings
and works.
Attachment 1 —Page 16
Steel means an alloy that includes at least 50 percent iron,between.02 and 2 percent carbon,and may
include other elements.
• (b)Iron, steel, and manufactured goods. (1)The award term and condition described in this section
implements-
(i)Section 1605(a)of the American Recovery and Reinvestment Act of 2009(Pub.L. 111-5)(Recovery
Act),by requiring that all iron,steel,and manufactured goods used in the project are produced in the
United States;and
(ii)Section 1605(d),which requires application of the Buy American requirement in a manner consistent
with U.S. obligations under international agreements.The restrictions of section 1605 of the Recovery Act
do not apply to designated country iron,steel,and/or manufactured goods.The Buy American requirement
in section 1605 shall not be applied where the iron,steel or manufactured goods used in the project are
from a Party to an international agreement that obligates the recipient to treat the goods and services of that
Party the same as domestic goods and services.This obligation shall only apply to projects with an
estimated value of$7,443,000 or more.
(2)The recipient shall use only domestic or designated country iron,steel,and manufactured goods in
performing the work funded in whole or part with this award,except as provided in paragraphs(b)(3)and
(b)(4)of this section.
(3)The requirement in paragraph(b)(2)of this section does not apply to the iron,steel,and manufactured
goods listed by the Federal Government as follows:
• [Award official to list applicable excepted materials or indicate "none"]
(4)The award official may add other iron,steel,and manufactured goods to the list in paragraph(b)(3)of
this section if the Federal Government determines that-
(i)The cost of domestic iron, steel,and/or manufactured goods would be unreasonable.The cost of
domestic iron,steel,and/or manufactured goods used in the project is unreasonable when the cumulative
cost of such material will increase the overall cost of the project by more than 25 percent;
(ii)The iron,steel,and/or manufactured good is not produced, or manufactured in the United States in
sufficient and reasonably available commercial quantities of a satisfactory quality;or
(iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the
public interest.
(c)Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American
Act. (1)(i)Any recipient request to use foreign iron, steel,and/or manufactured goods in accordance with
paragraph(b)(4)of this section shall include adequate information for Federal Government evaluation of
the request, including—
(A)A description of the foreign and domestic iron,steel,and/or manufactured goods;
(B)Unit of measure;
(C)Quantity;
•
Attachment 1 —Page 17
(D)Cost;
(E)Time of delivery or availability;
•
(F)Location of the project;
(G)Name and address of the proposed supplier;and
(H)A detailed justification of the reason for use of foreign iron,steel,and/or manufactured goods cited in
accordance with paragraph(b)(4)of this section.
(ii)A request based on unreasonable cost shall include a reasonable survey of the market and a completed
cost comparison table in the format in paragraph(d)of this section.
(iii)The cost of iron,steel,or manufactured goods shall include all delivery costs to the construction site
and any applicable duty.
(iv)Any recipient request for a determination submitted after Recovery Act funds have been obligated for a
project for construction,alteration,maintenance,or repair shall explain why the recipient could not
reasonably foresee the need for such determination and could not have requested the determination before
the funds were obligated.If the recipient does not submit a satisfactory explanation,the award official need
not make a determination.
(2)If the Federal Government determines after funds have been obligated for a project for construction,
alteration,maintenance,or repair that an exception to section 1605 of the Recovery Act applies,the award
official will amend the award to allow use of the foreign iron,steel,and/or relevant manufactured goods.
When the basis for the exception is nonavailability or public interest,the amended award shall reflect
adjustment of the award amount,redistribution of budgeted funds,and/or other appropriate actions taken to
•
cover costs associated with acquiring or using the foreign iron,steel,and/or relevant manufactured goods..
When the basis for the exception is the unreasonable cost of the domestic iron,steel,or manufactured
goods,the award official shall adjust the award amount or redistribute budgeted funds,as appropriate,by at
least the differential established in 2 CFR 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.
(d)Data. To permit evaluation of requests under paragraph(b)of this section based on unreasonable cost,
the applicant shall include the following information and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
Cost
Description Unit of measure Quantity (dollars)*
Item 1:
Foreign steel,iron,or manufactured good
Domestic steel,iron,or manufactured good
Item 2:
Attachment 1 —Page 18
Foreign steel,iron,or manufactured good
Domestic steel, iron,or manufactured good
[List name, address, telephone number, email address, and contact for suppliers surveyed Attach copy of
response; if oral, attach summary.]
[Include other applicable supporting information.]
(*Include all delivery costs to the construction site.]
Prescription: When issuing announcements or requesting applications for Recovery Act
programs or activities that may involve construction, alteration, maintenance, or repair
the agency shall use this award term.
WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY
ACT
(a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed
by contractors and subcontractors on projects funded directly by or assisted in whole or in
part by and through the Federal Government pursuant to the Recovery Act shall be paid
wages at rates not less than those prevailing on projects of a character similar in the
locality as determined by the Secretary of Labor in accordance with subchapter IV of
110 chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145,the
Department of Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the
Davis-Bacon and related Acts. Regulations in 29 CFR 5.5 instruct agencies concerning
application of the standard Davis-Bacon contract clauses set forth in that section. Federal
agencies providing grants, cooperative agreements, and loans under the Recovery Act
shall ensure that the standard Davis-Bacon contract clauses found in 29 CFR 5.5(a) are
incorporated in any resultant 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.
Prescription: The award term described in this section shall be used by agencies to clarify
recipient responsibilities regarding tracking and documenting Recovery Act expenditures.
RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF
•
Attachment 1 —Page 19
EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT
RESPONSIBILITIES FOR INFORMING
(a) To maximize the transparency and accountability of funds authorized under the •
American Recovery and Reinvestment Act of 2009 (Pub. L. 111--5) (Recovery Act) as
required by Congress and in accordance with 2 CFR 215.21 "Uniform Administrative
Requirements for Grants and Agreements" and OMB Circular A--102 Common Rules
provisions, recipients agree to maintain records that identify adequately the source and
application of Recovery Act funds. OMB Circular A--102 is available at
http://www.whitehouse.gov/omb/circulars/a102/a102.html.
(b) For recipients covered by the Single Audit Act Amendments of 1996 and OMB
Circular A--133, "Audits of States, Local Governments, and Non-Profit Organizations,"
recipients agree to separately identify the expenditures for Federal awards under the
Recovery Act on the Schedule of Expenditures of Federal Awards (SEFA) and the Data
Collection Form(SF--SAC)required by OMB Circular A--133. OMB Circular A--133 is
available at http://www.whitehouse.gov/omb/circulars/a133/a133.html. This shall be
accomplished by identifying expenditures for Federal awards made under the Recovery
Act separately on the SEFA, and as separate rows under Item 9 of Part III on the SF--
SAC by CFDA number, and inclusion of the prefix "ARRA-" in identifying the name of
the Federal program on the SEFA and as the first characters in Item 9d of Part III on the
SF--SAC.
(c) Recipients agree to separately identify to each subrecipient, and document at the time
of subaward and at the time of disbursement of funds, the Federal award number, CFDA
number, and amount of Recovery Act funds. When a recipient awards Recovery Act
funds for an existing program,the information furnished to subrecipients shall distinguish
the subawards of incremental Recovery Act funds from regular subawards under the
existing program.
(d) Recipients agree to require their subrecipients to include on their SEFA information
to specifically identify Recovery Act funding similar to the requirements for the recipient
SEFA described above. This information is needed to allow the recipient to properly
monitor subrecipient expenditure of ARRA funds as well as oversight by the Federal
awarding agencies, Offices of Inspector General and the Government Accountability
Office.
Prescription: Include for ARRA Weatherization Assistance Program (WAP) Awards
when WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE AMERICAN
RECOVERY AND REINVESTMENT ACT ('RECOVERY ACT")term is required.
DAVIS BACON ACT REQUIREMENTS
S
Attachment 1 —Page 20
A. Definitions. For purposes of this term,the Contract Work Hours and Safety Standards Act term,and
the Recipient Functions term,the following definitions are applicable:
• (1)Award means the Award by the Department of Energy(DOE)to a Recipient that includes a
requirement to comply 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 Subrecipients,Contractors
and subcontractors on projects funded by or assisted in whole or in part by and through the Federal
Government pursuant to the Recovery Act.
(2)"Construction, alteration or repair"means all types of work done by laborers and mechanics
employed by the Subrecipient,construction contractor or construction subcontractor on a particular
building or work at the site thereof, including without limitation—
(a)Altering,remodeling,installation(if appropriate)on the site of the work of items fabricated
off-site;
(b)Painting and decorating;or
(c)Manufacturing or furnishing of materials,articles, supplies,or equipment on the site of the
building or work.
(3)Contract means a written procurement contract executed by a Subrecipient for the acquisition of
property and services for construction,alteration,and repair under a Subaward. For purposes of these
terms,a Contract shall include subcontracts and lower-tier subcontracts under the Contract.
(4)Contracting Officer means the DOE official authorized to execute awards on behalf of DOE and
who is responsible for the business management and non-program aspects of the financial assistance
process.
(5)Contractor means an entity that enters into a Contract. For purposes of these terms,Contractor
shall include subcontractors and lower-tier subcontractors.
(6)Recipient means any entity other than an individual that receives Recovery Act funds in the form of
a grant directly from the Federal Government. The term includes the State that receives an Award
from DOE and is financially accountable for the use of any DOE funds or property,and is legally
responsible for carrying out the terms and conditions of the program and Award.
(7)"Site of the work"—
(a)Means-
(i)The physical place or places where the construction called for in the Award,Subaward,or
Contract will remain when work on it is completed;and
(ii)Any other site where a significant portion of the building or work is constructed,provided
that such site is established specifically for the performance of the project;
(b)Except as provided in paragraph(c)of this definition,the site of the work includes any
fabrication plants,mobile factories,batch plants,borrow pits,job headquarters,tool yards,etc.,
provided—
(1)They are dedicated exclusively,or nearly so,to performance of the project;and
S
Attachment 1 –Page 21
(2)They are adjacent or virtually adjacent to the site of the work as defined in
paragraphs(7)(a)(i)or(7)(a)(ii)of this defmition;and
(c)Does not include permanent home offices,branch plant establishments,fabrication plants,or •
tool yards of a Contractor or subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular contract or Federal Award or project. In
addition,fabrication plants,batch plants,borrow pits,job headquarters,yards,etc.,of a
commercial or material supplier which are established by a supplier of materials for the project
before opening of bids and not on the project site as defined in paragraphs(7)(a)(i)or(7)(a)(ii)of
this defmition,are not included in the"site of the work." Such permanent,previously established
facilities are not a part of the"site of the work"even if the operations for a period of time may be
dedicated exclusively or nearly so,to the performance of an Award,Subaward,or Contract.
(8)Subaward means an award of financial assistance in the form of money,or property in lieu of
money,made under an award by a Recipient to an eligible Subrecipient or by a Subrecipient to a
lower-tier 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"Award"above.
(9)Subrecipient means a non-Federal entity that expends Federal awards received from a pass-through
entity[Recipient]to carry out a Federal program,but does not include an individual that is a
beneficiary of such a program. The term includes a Community Action Agency(CAA), local agency,
or other entity to which a Subaward under the Award is made by a Recipient that includes a
requirement to comply with the labor standards clauses and wage rate requirements of the DBA work
performed by all laborers and mechanics employed by contractors and subcontractors on projects
funded by or assisted in whole or in part by and through the Federal Government pursuant of the
Recovery Act.
B. Davis-Bacon Act
(1)(a)All laborers and mechanics employed or working upon the site of the work will be paid
unconditionally and not less often than once a week,and without subsequent deduction or rebate on
any account(except such payroll deductions as are permitted by regulations issued by the Secretary of
Labor under the Copeland Act(29 CFR Part 3)),the full amount of wages and bona fide fringe benefits
(or cash equivalents thereof)due at time of payment computed at rates not less than those contained in
the wage determination of the Secretary of Labor which is attached to the Subaward or Contract and
made a part hereof,regardless of any contractual relationship which may be alleged to exist between
the Recipient,a Subrecipient,or Contractor and such laborers and mechanics.
(i)Applicable to Recipient Only: Prior to the issuance of the Subaward or Contract,the
Recipient shall notify the Contracting Officer of the site of the work in order for the
appropriate wage determination to be obtained by the Contracting Officer from the
Secretary of Labor.
(ii)If the Subaward or Contract is or has been issued without a wage determination,the
Recipient shall notify the Contracting Officer immediately of the site of the work under
the Subaward or Contract in order for the appropriate wage determination to be obtained
by the Contracting Officer from the Secretary of Labor.
(b)Contributions made or costs reasonably anticipated for bona fide fringe benefits under section
1(b)(2)of the DBA on behalf of laborers or mechanics are considered wages paid to such laborers
and mechanics,subject to the provisions of paragraph B(4)below;also,regular contributions
made or costs incurred for more than a weekly period(but not less often than quarterly)under
plans,funds,or progams which cover the particular weekly period,are deemed to be
•
Attachment 1 —Page 22
constructively made or incurred during such period.
40 (c)Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe
benefits in the wage determination for the classification of work actually performed,without
regard to skill,except as provided in the paragraph entitled Apprentices and Trainees. Laborers or
mechanics performing work in more than one classification may be compensated at the rate
specified for each classification for the time actually worked therein;provided that the employer's
payroll records accurately set forth the time spent in each classification in which work is
performed.
(d)The wage determination(including any additional classifications and wage rates conformed
under paragraph B(2)of this term)and the Davis-Bacon poster(WH-1321)shall be posted at all
times by the Subrecipient and Contractor at the site of the work in a prominent and accessible
place where it can be easily seen by the workers.
(2)(a)The Contracting Officer shall require that any class of laborers or mechanics which is not listed
in the wage determination and which is to be employed under the Subaward or Contract shall be
classified in conformance with the wage determination. The Contracting Officer shall approve an
additional classification and wage rate and fringe benefits therefore only when all the following
criteria have been met:
(i)The work to be performed by the classification requested is not performed by a
classification in the wage determination.
(ii)The classification is utilized in the area by the construction industry.
(iii)The proposed wage rate,including any bona fide fringe benefits,bears a reasonable
• relationship to the wage rates contained in the wage determination.
(b)If the Subrecipient(and Contractor,when applicable)and the laborers and mechanics to be
employed in the classification(if known),or their representatives agree on the classification and
wage rate(including the amount designated for fringe benefits,where appropriate),the
Subrecipient shall notify the Recipient. The Recipient shall notify the Contracting Officer of this
agreement. If the Contracting Officer agrees with the classification and wage rate(including the
amount designated for fringe benefits,where appropriate),a report of the action taken shall be sent
by the Contracting Officer to the Administrator of the:
Wage and Hour Division
Employment Standards Administration
U.S.Department of Labor
Washington,DC 20210
The Administrator or an authorized representative will approve,modify,or disapprove every
additional classification action within 30 days of receipt and so advise the Contracting Officer or
will notify the Contracting Officer within the 30-day period that additional time is necessary.
(c)In the event the Subrecipient(and Contractor,when applicable),and the laborers or mechanics
to be employed in the classification,or their representatives,do not agree on the proposed
classification and wage rate(including the amount designated for fringe benefits,where
appropriate),the Subrecipient shall notify the Recipient. The Recipient shall notify the
Contracting Officer of the disagreement. The Contracting Officer shall refer the questions,
including the views of all interested parties and the recommendation of the Contracting Officer,to
the Administrator of the Wage and Hour Division for determination. The Administrator,or an
• authorized representative,will issue a determination within 30 days of receipt and so advise the
Attachment 1 —Page 23
Contracting Officer or will notify the Contracting Officer within the 30-day period that additional
g fY g Y p
time is necessary.
(d)The wage rate(including fringe benefits,where appropriate)determined pursuant to •
subparagraphs B(2)(b)or B(2)(c)of this Term shall be paid to all workers performing work in the
classification under the Award, Subaward,or Contract from the first day on which work is
performed in the classification.
(3)Whenever the minimum wage rate prescribed in the Award,Subaward,or Contract for a class of
laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate,the
Subrecipient and 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.
(4)If the Subrecipient or Contractor does not make payments to a trustee or other third person,the
Subrecipient or 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 Subrecipient or
Contractor that the applicable standards of the Davis-Bacon Act have been met. The Secretary of
Labor may require the Subrecipient or Contractor to set aside in a separate account assets for the
meeting of obligations under the plan or program.
C. Rates of Wages
(1)The minimum wages to be paid laborers and mechanics under the Subaward or Contract involved
in performance of work at the project site,as determined by the Secretary of Labor to be prevailing for
the corresponding classes of laborers and mechanics employed on projects of a character similar to the
contract work in the pertinent locality,are included as an attachment to the Award,Subaward,or
Contract.
(2) If the Subaward or Contract has been issued without a wage determination,the Recipient shall
notify the Contracting Officer immediately of the site of the work under the Subaward or Contract in
order for the appropriate wage determination to be obtained by the Contracting Officer from the
Secretary of Labor.
D. Payrolls and Basic Records
(1)Payrolls and basic records relating thereto shall be maintained by the Recipient, Subrecipient and
Contractor during the course of the work and preserved for a period of 3 years thereafter for all
laborers and mechanics working at the site of the work. Such records shall contain the name,address,
and social security number of each such worker,his or her correct 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 1(b)(2)(B)of the Davis-Bacon Act),daily and
weekly number of hours worked,deductions made,and actual wages paid. Whenever the Secretary of
Labor has found,under paragraph(4)of the provision entitled Davis-Bacon Act,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 1(b)(2)(B)of the Davis-Bacon Act,the Subrecipient or
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
communicated in writing to the laborers or mechanics affected,and records which show the costs
anticipated or the actual cost incurred in providing such benefits.The Subrecipient or Contractor
employing apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs,the registration of the
apprentices and trainees,and the ratios and wage rates prescribed in the applicable programs.
•
Attachment 1 —Page 24
(2)(a)The Contractor shall submit weekly for each week in which any Contract work is performed a
copy of all payrolls to the Subrecipient. The Subrecipient shall submit weekly for each week in which
4110 any Subaward or Contract work is performed a copy of all payrolls to the Recipient. The Recipient
shall submit weekly for each week in which any Subaward or Contract work is performed a copy of all
payrolls to the Contracting Officer. The payrolls submitted shall set out accurately and completely all
of the information required to be maintained under paragraph D(1)of this Term,except that the full
social security numbers and home addresses shall not be included on weekly transmittals. Instead,the
payrolls shall only need to include an individually identifying number for each employee(e.g.,the last
four digits of the employee's social security number). The required 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 http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site.
(b)The Recipient is responsible for the ensuring that all Subrecipients and Contractors submit copies
of payrolls and basic records as required by paragraph D,Payrolls and Basic Records,of this Term.
The Subrecipient is responsible for ensuring all Contractors,including lower tier subcontractors
submit copies of payrolls and basic records as required by paragraph D,Payrolls and Basic Records,
of this term. Subrecipients and Contractors shall maintain the full social security number and current
address of each covered worker,and shall provide them upon request for transmission to the
Contracting Officer,the Recipient,or the Wage and Hour Division of the Department of Labor for
purposes of an investigation or audit of compliance with prevailing wage requirements. The
Recipient shall also obtain and provide the full social security number and current address of each
covered worker upon request by the Contracting Officer 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 Recipient to require a Subrecipient or
Contractor to provide addresses and social security numbers to the Recipient for its own records,
without weekly submission to the Contracting Officer.
(c)Each payroll submitted shall be accompanied by a"Statement of Compliance,"signed by the
10 Recipient, Subrecipient or Contractor or his or her agent who pays or supervises the payment of the
persons employed under the Subaward or Contract and shall certify-
(i)That the payroll for the payroll period contains the information required to be
maintained under paragraph D(2)(a)of this Term,the appropriate information is being
maintained under paragraph D(1)of this Term,and that such information is correct and
complete;
(ii)That each laborer or mechanic(including each helper,apprentice,and trainee)
employed on the Subaward or Contract during the payroll period has been paid the full
weekly wages earned,without rebate,either directly or indirectly,and that no deductions
have been made either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in the Regulations,29 CFR Part 3;and
(iii)That each laborer or mechanic has been paid not less than the applicable wage rates
and fringe benefits or cash equivalents for the classification of work performed,as
specified in the applicable wage determination incorporated into the Subaward or
Contract.
(d)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 paragraph D(2)(c)of this Term.
(e)The falsification of any of the certifications in Paragraph D,Payrolls and Basic Records, of this
Term may subject the Recipient, Subrecipient or Contractor to civil or criminal prosecution under
Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code.
Attachment 1 —Page 25
(3)The Recipient,Subrecipient,or Contractor shall make the records required under paragraph D(1)of
this Term available for inspection,copying,or transcription by the Contracting Officer,authorized
representatives of the Contracting Officer,or the Department of Labor. The Subrecipient or Contractor
shall permit the Contracting Officer,authorized representatives of the Contracting Officer or the
Department of Labor to interview employees during working hours on the job. If the Recipient,
Subrecipient,or Contractor fails to submit the required records or to make them available,the
Contracting Officer may,after written notice to the Recipient, Subrecipient,or Contractor take such
action as may be necessary to cause the suspension of any further payment,advance,or guarantee of
funds. Furthermore,failure to submit the required records upon request or to make such records
available may be grounds for debarment action pursuant to 29 CFR 5.12.
E. Withholding of Funds
(1) The DOE Contracting Officer shall,upon his or her or its own action or upon written request of an
authorized representative of the Department of Labor,withhold or cause to be withheld from the
Recipient or any other contract or Federal Award with the same Recipient,on this or any other
federally assisted Award subject to Davis-Bacon prevailing wage requirements,which is held by the
same Recipient 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 Subrecipient or
a Contractor the full amount of wages required by the Award or Subaward or a Contract. In the event
of failure to pay any laborer or mechanic,including any apprentice,trainee,or helper,employed or
working on the site of the work, all or part of the wages required by the Award or Subaward or a
Contract,the Contracting Officer may,after written notice to the Recipient take such action as may be
necessary to cause the suspension of any further payment,advance,or guarantee of funds until such
violations have ceased.
(2) The Recipient shall,upon its own action or upon written request of the DOE Contracting Officer
or an authorized representative of the Department of Labor,withhold or cause to be withheld from any
Subrecipient or 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
Subrecipient or Contractor the full amount of wages required by the Subaward or Contract. In the
event of failure to pay any laborer or mechanic,including any apprentice,trainee,or helper,employed
or working on the site of the work,all or part of the wages required by the Subaward or Contract,the
Recipient may,after written notice to the Subrecipient or Contractor,take such action as may be
necessary to cause the suspension of any further payment,advance,or guarantee of funds until such
violations have ceased or the Government may cause the suspension of any further payment under any
other contract or Federal award with the same Subrecipient or Contractor,on any other federally
assisted Award subject to Davis-Bacon prevailing wage requirements,which is held by the same
Subrecipient or Contractor.
F. Apprentices and Trainees
(1)Apprentices.
(a)An apprentice will be permitted to work at less than the predetermined rate for the work they
performed when they are employed-
(i)Pursuant to and individually registered in a bona fide apprenticeship program
registered with the U.S.Department of Labor,Employment and Training Administration,
Office of Apprenticeship and Training,Employer,and Labor Services(OATELS)or with
a State Apprenticeship Agency recognized by the OATELS; or
(ii)In the first 90 days of probationary employment as an apprentice in such an
apprenticeship program,even though not individually registered in the program,if
•
Attachment 1 —Page 26
certified by the OATELS or a State Apprenticeship Agency(where appropriate)to be
eligible for probationary employment as an apprentice.
• (b)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 Subrecipient or Contractor as to the entire work force
under the registered program.
(c)Any worker listed on a payroll at an apprentice wage rate,who is not registered or otherwise
employed as stated in paragraph F(1)of this Term, shall be paid not less than the applicable 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 for the work actually
performed.
(d)Where a Subrecipient or 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 hourly rate)specified in the Subrecipient's or Contractor'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
journeyman hourly rate specified in the applicable wage determination.
(e)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.
(f)In the event OATELS,or a State Apprenticeship Agency recognized by OATELS,withdraws
410 approval of an apprenticeship program,the Subrecipient or 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.
(2)Trainees.
(a)Except as provided in 29 CFR 5.16,trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually
registered in a program which has received prior approval,evidenced by formal certification by
(OATELS). The ratio of trainees to journeymen on the job site shall not be greater than permitted
under the plan approved by OATELS.
(b)Every trainee must be paid at not less than the rate specified in the approved program for 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 trainee program does not mention fringe benefits,
trainees shall be paid the full amount of fringe benefits listed in the wage determination unless the
Administrator of the Wage and Hour Division determines that there is an apprenticeship/training
program associated with the corresponding journeyman wage rate in 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
OATELS shall be paid not less than the applicable wage rate in the wage determination for the
classification of work actually performed In addition,any trainee 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 in the wage determination for the work actually performed.
•
Attachment 1 —Page 27
(c)In the event OATELS withdraws approval of a training program,the Subrecipient or
Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined
rate for the work performed until an acceptable program is approved.
(3)Equal employment opportunity. The utilization of apprentices,trainees,and journeymen under this
Term shall be in conformity with the equal employment opportunity requirements of Executive Order
11246,as amended,and 29 CFR Part 30.
G. Compliance with Copeland Act Requirements
The Recipient, Subrecipient or Contractor shall comply with the requirements of 29 CFR Part 3 which are
hereby incorporated by reference in the Award,Subaward or Contract.
H. Subawards and Contracts
(1)The Recipient,the Subrecipient and Contractor shall insert in the Subaward or any Contracts this
Term entitled"Davis Bacon Act Requirements"and such other terms as the Contracting Officer may
require. The Recipient shall be responsible for ensuring compliance by any Subrecipient or Contractor
with all of the requirements contained in this Term. The Subrecipient shall be responsible for the
compliance by Contractor with all of the requirements contained in this Term.
(2)Within 14 days after issuance of a Subaward,the Recipient shall deliver to the Contracting Officer a
completed Standard Form(SF) 1413, Statement and Acknowledgment,for each Subaward and Contract for
construction within the United States,including the Subrecipient's and Contractor's signed and dated
acknowledgment that this Term)has been included in the Subaward and any Contracts.The SF 1413 is
available from the Contracting Officer or at
http://contacts.gsa.gov/webforms.nsf/0/70B4872D16EE95A785256A26004F7EA8/$file/sf1413 e.pdf.
Within 14 days after issuance of a Contract or lower-tier subcontract,the Subrecipient shall deliver to the
Recipient a completed Standard Form(SF) 1413, Statement and Acknowledgment,for each Contract and
•
lower-tier subcontract for construction within the United States,including the Contractor and lower-tier
subcontractor's signed and dated acknowledgment that this Term has been included in any Contract and
lower-tier subcontracts. SF 1413 is available from the Contracting Officer or at
http://contacts.gsa.gov/webforms.nsf/0/70B4872D16EE95A785256A26004F7EA8/$file/sf1413 e.pdf. The
Recipient shall immediately provide to the DOE Contracting Officer the completed Standard Forms(SF)
1413.
I. Contract Termination Debarment
A breach of these provisions may be grounds for termination of the Award, Subaward,or Contract and for
debarment as a Contractor or subcontractor as provided in 29 CFR 5.12.
J. Compliance with Davis-Bacon and Related Act Regulations
All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1,3,and 5
are hereby incorporated by reference in the Award,Subaward or Contract.
K. Disputes Concerning Labor Standards
The United States Department of Labor has set forth in 29 CFR Parts 5,6,and 7 procedures for resolving
disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those
procedures and shall not be subject to any other dispute provision that may be contained in the Award,
Subaward,and Contract. Disputes within the meaning of this Term include disputes between the Recipient,
Subrecipient(including any Contractor)and the Department of Energy,the U.S.Department of Labor,or
•
Attachment 1 —Page 28
the employees or their representatives.
• L. Certification of Eligibility.
(1)By entering into this Award, Subaward, or Contract(as applicable),the Recipient,Subrecipient,or
Contractor,respectively certifies that neither it(nor he or she)nor any person or firm who has an interest
in the Recipient, Subrecipient,or Contractor's firm, is a person,entity,or firm ineligible to be awarded
Government contracts or Government awards by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR
5.12(a)(1).
(2)No part of this Award,Subaward or Contract shall be subcontracted to any person or firm ineligible for
award of a Government contract or Government award by virtue of section 3(a)of the Davis-Bacon Act or
29 CFR 5.12(a)(1).
(3)The penalty for making false statements is prescribed in the U.S.Criminal Code, 18 U.S.C. 1001.
M. Approval of Wage Rates
All straight time wage rates,and overtime rates based thereon,for laborers and mechanics engaged in work
under an Award, Subaward or Contract must be submitted for approval in writing by the head of the federal
contracting activity ty or a representative expressly designated for this purpose,if the straight time wages
exceed the rates for corresponding classifications contained in the applicable Davis-Bacon Act minimum
wage determination included in the Award, Subaward or Contract. Any amount paid by the Subrecipient or
Contractor to any laborer or mechanic in excess of the agency approved wage rate shall be at the expense of
the Subrecipient or Contractor and shall not be reimbursed by the Recipient or Subrecipient. If the
Government refuses to authorize the use of the overtime,the Subrecipient or Contractor is not released
from the obligation to pay employees at the required overtime rates for any overtime actually worked.
• Contract Work Hours and Safety Standards Act
This Term entitled"Contract Work Hours and Safety Standards Act(CWHSSA)"shall apply to any
Subaward or Contract in an amount in excess of$100,000. As used in this CWHSSA Term,the terms
laborers and mechanics include watchmen and guards.
A. Overtime requirements. No Subrecipient or Contractor contracting for any part of the Subaward
work which may require or involve the employment of laborers or mechanics shall require or permit any
such laborer or mechanic in 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 of pay for all hours worked in excess of forty hours in
such workweek.
B.Violation; liability for unpaid wages;liquidated damages. In the event of any violation of the term set
forth in paragraph B herein,the Subrecipient or Contractor responsible therefor shall be liable for the
unpaid wages. In addition,such Subrecipient or Contractor shall be liable to the United States(in the
case of work done under a Subaward or Contract for the District of Columbia or a territory,to such
District or to such territory),for liquidated damages. Such liquidated damages shall be computed with
respect to each individual laborer or mechanic,including watchmen and guards,employed in violation of
the provision set forth in CWSSHA paragraph A,in the sum of$10 for each calendar day on which such
individual was required or permitted to work in excess of the standard workweek of forty hours without
payment of the overtime wages required by the term set forth in paragraph(A)of this section.
C. Withholding for unpaid wages and liquidated damages.
4111
Attachment 1 —Page 29
•
(1) The DOE Contracting Officer 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 account of work performed by the Recipient on this or any other Federal
Award or Federal contract with the same Recipient on any other federally-assisted Award or
contract subject to the CWHSSA,which is held by the same Recipient such sums as may be
determined to be necessary to satisfy any liabilities of such Recipient for unpaid wages and
liquidated damages as provided in the term set forth in CWHSSA,paragraph B of this Term.
(2) The Recipient shall,upon its own action or upon written request of the DOE Contracting
Officer or an authorized representative of the Department of Labor,withhold or cause from any
moneys payable on account of work performed by the Subrecipient or Contractor on this or any
other federally assisted subaward or contract subject to the CWHSSA,which is held by the
same Subrecipient or Contractor such sums as may be determined to be necessary to satisfy any
liabilities of such Subrecipient or Contractor for unpaid wages and liquidated damages as
provided in term set forth in CWHSSA,paragraph B of this Term.
D. Subcontracts. The Subrecipient shall insert in a Contract and a Contractor shall insert in any lower
tier subcontracts,the terms set forth in these CWHSSA paragraphs(A)through(D)and also a provision
requiring the Contractors to include this CWHSSA Term in any lower tier subcontracts. The Recipient
shall be responsible for compliance by any Subrecipient or Contractor,with the CWHSSA paragraphs A
through D. The Subrecipient shall be responsible for compliance by any Contractor(including lower-
tier subcontractors).
E. The Subrecipient or Contractor shall maintain payrolls and basic payrolls in accordance with Davis-
Bacon Act Requirements term, for all laborers and mechanics,including guards and watchmen working
on the Subaward or Contracts. These records are subject to the requirements set forth in the Davis Bacon
Requirements term.
S
Prescription: Include for ARRA Awards (other than Weatherization Assistance Program
and Loan Program awards) when WAGE RATE REQUIREMENTS UNDER SECTION
1606 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT ("RECOVERY
ACT") term is required.
DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
Definitions: For purposes of this article,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 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.
•
Attachment 1 —Page 30
"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 mean a financial assistance instrument with a unit
of State or local government where construction is performed by its own employees.
(4)"Contracting Officer"means the DOE official authorized to execute an Award on behalf of
DOE and who is responsible for the business management and non-program aspects of the
financial assistance process.
(5)"Recipient"means any entity other than an individual that receives an Award of Federal
funds in the form of a grant,cooperative agreement or technology investment agreement
directly from the Federal Government and is financially accountable for the use of any DOE
funds or property,and is legally 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,made under an award by a Recipient to an eligible Subrecipient or by a Subrecipient
to a lower-tier 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"Award"above.
(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.
(a)Davis Bacon Act
(1)Minimum wages.
(i)All laborers and mechanics employed or working upon 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),will be paid unconditionally and not less
often than once a week,and without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by regulations issued by the Secretary of
Labor under the Copeland Act(29 CFR part 3)),the full amount of wages and bona fide
fringe benefits(or cash equivalents thereof)due at time of payment computed at rates not
less than those contained in the wage determination of the Secretary of Labor which is
attached hereto and made a part hereof,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 1(b)(2)of the Davis-Bacon Act on behalf of laborers or mechanics are considered
wages paid to such laborers or mechanics,subject to the provisions of paragraph
(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 classification of work
actually performed,without regard to skill,except as provided in§ 5.5(a)(4).Laborers or
411 mechanics performing work in more than one classification may be compensated at the
Attachment 1 —Page 31
rate specified for each classification for the time actually worked therein:Provided,That
the employer's payroll records accurately set forth the time spent in each classification in
which work is performed.The wage determination(including any additional
classification and wage rates conformed under paragraph(a)(1)(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.
(ii)(A)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 shall approve an additional classification and
wage rate and fringe benefits therefore only when the following criteria have been met:
(1)The work to be performed by the classification requested is not performed by
a classification in the wage determination;and
(2)The classification is utilized in the area by the construction industry;and
(3)The proposed wage rate,including any bona fide fringe benefits,bears a
reasonable relationship to the wage rates contained in the wage determination.
(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 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 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.
(C)In the event the Contractor,the laborers or mechanics to be employed in the
classification or their representatives,and the Contracting Officer do not agree on the
proposed classification and wage rate(including the amount designated for fringe
benefits,where appropriate),the Contracting Officer shall refer the questions,
including the views of all interested parties and the recommendation of the
Contracting Officer,to the Administrator for determination. The Administrator,or an
authorized representative,will issue a determination within 30 days of receipt and so
advise the Contracting Officer or will notify the Contracting Officer within the 30-
day period that additional time is necessary.
(D)The wage rate(including fringe benefits where appropriate)determined pursuant
to 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 classification.
(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
Attachment 1 —Page 32
•
the Contractor,that the applicable standards of the Davis-Bacon Act have been met. The
Secretary of Labor may require the Contractor to set aside in a separate account assets for
the meeting of obligations under the plan or program.
(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 helper,employed 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 Contractor,
sponsor,applicant,or owner,take such action as may be necessary to cause the suspension of any
further payment,advance,or guarantee of funds until such violations have ceased.
(3)Payrolls and basic records.
(i)Payrolls and basic records relating thereto shall be maintained by the Contractor
during the course of the work and preserved for a period of three years thereafter for all
laborers and mechanics working at 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). Such records shall contain the name,address,and social
security number of each such worker,his or her correct 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 1(b)(2)(B)of the
• Davis-Bacon Act),daily and weekly number of hours worked,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
1(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 communicated in writing to
the laborers or mechanics affected,and records which show the costs anticipated or the
actual cost incurred in providing such benefits.Contractors employing apprentices or
trainees under approved programs shall maintain written evidence of the registration of
apprenticeship programs and certification of trainee programs,the registration of the
apprentices and trainees,and the ratios and wage rates prescribed in the applicable
programs.
(ii)(A)The Contractor shall submit weekly for each week in which any Contract work is
performed a copy 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 included on weekly transmittals. Instead
the payrolls shall only need to include an individually identifying number for each
employee(e.g.,the last four digits of the employee's social security number).The
required 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 http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The
Attachment 1 —Page 33
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 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 (a)(3)(ii)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;
(2)That each laborer or mechanic(including each helper,apprentice,and
trainee)employed on the Contract during the payroll period has been paid the
full weekly wages earned,without rebate,either directly or indirectly,and that
no deductions have been made either directly or indirectly from the full wages
earned,other than permissible deductions as set forth in Regulations,29 CFR
part 3;
(3)That each laborer or mechanic has been paid not less than the applicable
wage rates and fringe benefits or cash equivalents for the classification of work
performed,as specified in the applicable wage determination incorporated into
the Contract.
(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 paragraph(a)(3)(ii)(B)of this section.
(D)The falsification of any of the above certifications may subject the Contractor or
subcontractor to civil or criminal prosecution under section 1001 of title 18 and
section 3729 of title 31 of the United States Code.
(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 working hours on the job.If the
Contractor or subcontractor fails to submit the required records or to make them
available,the Federal agency may,after written notice to the Contractor, sponsor,
applicant,or owner,take such action as may be necessary to cause the suspension of any
further payment,advance,or guarantee of funds. Furthermore,failure to submit the
required records upon request or to make such records available may be grounds for
debarment action pursuant to 29 CFR 5.12.
(4)Apprentices and trainees--
Attachment 1 —Page 34
(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 program registered with the U.S.Department of
Labor,Employment and Training Administration,Office 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
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 for the work actually performed.Where 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 hourly 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.
(ii)Trainees.Except as provided in 29 CFR 5.16,trainees will not be permitted to work
at less than the predetermined rate for the work performed 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 job site shall not be
greater than permitted under the plan approved by the Employment and Training
Administration.Every trainee must be paid at not less than the rate specified in the
approved program for 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
trainee program does not mention fringe benefits,trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the Administrator of the Wage
and Hour Division determines that there is an apprenticeship program associated with the
corresponding journeyman 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
rate on the wage determination for the classification of work actually performed.In
addition,any trainee 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
Attachment 1 —Page 35
Y `
wage determination for the work actually performed.In the event the Employment and
Training Administration withdraws approval of a training program,the Contractor will no
longer be permitted to utilize trainees at less than the applicable predetermined rate for
the work performed until an acceptable program is approved.
4111)
(iii)Equal employment opportunity.The utilization of apprentices,trainees and
journeymen under this part shall be in conformity with the equal employment opportunity
requirements of Executive Order 11246,as amended and 29 CFR part 30.
(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.
(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(10)and such other clauses as the Department of Energy may by appropriate instructions
require,and also a clause requiring the subcontractors 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 parts 1,3,and 5 are herein incorporated
by reference in this Contract.
(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)
nor 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).
(ii)No part of this Contract shall be subcontracted to any person or firm ineligible for
award of a Government contract by virtue of section 3(a)of the Davis-Bacon Act or 29
CFR 5.12(a)(1).
(iii)The penalty for making false statements is prescribed in the U.S. Criminal Code, 18
U.S.C. 1001.
(b)Contract Work Hours and Safety Standards Act.As used in this paragraph,the terms laborers and
mechanics include watchmen and guards.
(1)Overtime requirements.No Contractor or subcontractor contracting for any part of the Contract
work which may require or involve the employment of laborers or mechanics shall require or
permit any such laborer or mechanic in 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
Attachment 1 —Page 36
• .
V
compensation at a rate not less than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
• (2)Violation; liability for unpaid wages; liquidated damages.In the event of any violation of the
clause set forth in paragraph(b)(1)of this section the Contractor and any subcontractor
responsible therefor shall be liable for the unpaid wages.In addition,such Contractor and
subcontractor shall be liable to the United States(in the case of work done under contract for the
District of Columbia or a territory,to such District or to such territory), for liquidated damages.
Such liquidated damages shall be computed with respect to each individual laborer or mechanic,
including watchmen and guards,employed in violation of the clause set forth in paragraph(b)(1)
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 workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph(b)(1)of this section.
(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 account 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 federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same
prime contractor,such sums as may be determined to be necessary to satisfy any liabilities of such
Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph(b)(2)of this section.
(4)Contracts and Subcontracts. The Recipient, Subrecipient,and Recipient's and Subrecipient's
contractor or 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.
(5)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 and the Department of Labor,and the
Contractor or subcontractor will permit such representatives to interview employees during
working hours on the job.
From 10 CFR 600.236-Procurement
(a) States. When procuring property and services under a grant, a State will follow the
same policies and procedures it uses for procurements from its non-Federal funds. The
State will ensure that every purchase order or other contract includes any clauses required
by Federal statutes and executive orders and their implementing regulations. Other
grantees and sub-grantees will follow paragraphs (b)through (i) in this section.
Note: 600.236 (i)-Contract provisions. A grantee's and sub-grantee's contracts MUST
• contain provisions in paragraph(i)of this section(1)through(13).
Attachment 1 —Page 37
V
10 CFR 600.236 -- http://ecfr.gpoaccess.gov/cgi/t/text/text-
idx?c=ecfr&sid=1d87da29f6087f0251f78954c8888ffl&rgn=div8&view=text&node=10: •
4.0.1.3.9.3.20.23&idno=l0
From 10 CFR 600.237-Subgrants
Retention and Access Requirements for Records
http://ecfr.gpoaccess.gov/cgi/t/text/text-
idx?type=simple;c=ecfr;cc=ecfr;sid=4c22613 d54c8ee557f9dc9d601Seel c9;idno=10;regi
on=DIV 1;q1=600.242;rgn=div8;view=text;node=1 0%3A4.0.1.3.9.3.20.27
Conform any advances of grant funds to sub-grantees substantially to the same standards
of timing and amount that apply to cash advances by Federal agencies (refer state to 10
CFR 600.221(c).
10 CFR 60.221(c)Advances. Grantees and subgrantees shall be paid in advance, provided
they maintain or demonstrate the willingness and ability to maintain procedures to
minimize the time elapsing between the transfer of the funds and their disbursement by
the grantee or subgrantee.
•
Attachment 1 —Page 3 8
office of 85 7th Place East, Suite 500
St. Paul, MN 55101-2198
dia, AI P: 651.297.7047 F: 651.284.4211
www.energy.mn.gov
energy.contracts@state.mn.us
Office of Energy Security
Minnesota Department of Commerce
Fully Executed Agreement Information
June 17,2010
Enclosed is your fully executed copy of your agreement(B43935) for your records.
Grantee: State:
Eric Johnson, City Administrator Abby Finis,Energy Programs Specialist
City of Oak Park Heights Minnesota Department of Commerce
14168 Oak Park Boulevard North 85 7th Place East, Suite 500
Stillwater, MN 55082 Saint Paul, MN 55101
Phone: 651-439-4439 Phone: 651-296-6205
Your agreement(B43935)went into effect on 06/15/2010 and will end on 03/31/2011. Work may
only be completed during these dates. If you believe you will need a time extension, you must
contact Abby Finis at 651-296-6205 at least 60 days prior to the end of your agreement date.
Is Total expenses must not exceed$37,840.00. Remember eligible expenses are only those indicated in
Exhibit B of your agreement. Your invoice must clearly state your agreement number, dates of
work invoice is covering,your organization's match and categories for reimbursements(labor,
materials,printing, etc.).
Invoices and Status reports(Exhibit V of the grant agreement) should be emailed to
energy.contracts@state.mn.us AND mailed to the address listed above and are due 5 days after the
end of each reporting period, as identified in the Grantee's Duties section of your agreement.
If you have any questions regarding your agreement, invoices,payment, or amendment(s)please do
not hesitate to contact either Abby Finis or myself
Sincerely, V/�f
C�C pQ '
Kelly Cooper
Grant Specialist Intermediate
Enclosure
111
r v¢,1 -_Psa j e t
STATE OF MINNESOTA r t F
GRANT CONTRACT This grant contract is between the State of Minnesota, acting through its commissioner of Commerce("State")and City of
.yak Park Heights, , Stillwater,MN 55082("Grantee").
Recitals
1. Under Minnesota Statute§216C.02 Subdivision 1,the State is empowered to enter into this grant.
2. The State is in need of assistance in the promotion of renewable energy resources.
3. The Grantee represents that it is duly qualified and agrees to perform all services described in this grant contract to the
satisfaction of the State.
Grant Contract
1 Term of Grant Contract
1.1 Effective date: 06/07/2010, or the date the State obtains all required signatures under Minnesota Statutes Section
16C.05, subdivision 2,whichever is later.
The Grantee must not begin work under this grant contract until this contract is fully executed and the
Grantee has been notified by the State's Authorized Representative to begin the work.
1.2 Expiration date: 03/31/2011, or until all obligations have been satisfactorily fulfilled,whichever occurs first.
1.3 Survival of Terms. The following clauses survive the expiration or cancellation of this grant contract: 8.Liability;
9. State Audits; 10. Government Data Practices and Intellectual Property; 12.Publicity and Endorsement; 13.
Governing Law,Jurisdiction, and Venue; and 15.Data Disclosure; and Exhibit A, Section C.
2 Grantee's Duties
The Grantee,who is not a state employee, will execute the duties set forth in Exhibit A, incorporated herein by
reference.
Time
The Grantee must comply with all the time requirements described in this grant contract. In the performance of this
grant contract,time is of the essence.
4 Consideration and Payment
4.1. Consideration.The State will pay for all services performed by the Grantee under this grant contract as follows:
4.1.1. Compensation. The Grantee will be paid the lesser of Thirty Seven Thousand Eight Hundred Forty
dollars($37,840.00) or One Hundred percent(100%)of actual eligible costs incurred in the
performance of the Grantee's duties according to the breakdown of costs contained in the grant budget
(Exhibit B)which is attached to and incorporated into this grant contract.
4.1.2. Travel Expenses.Reimbursement for travel and subsistence expenses actually and necessarily incurred by
the Grantee as a result of this grant contract will not exceed Zero dollars($0.00);provided that the
Grantee will be reimbursed for travel and subsistence expenses in the same manner and in no greater
amount than provided in the current"Commissioner's Plan"promulgated by the commissioner of
Employee Relations. The Grantee will not be reimbursed for travel and subsistence expenses incurred
outside Minnesota unless it has received the State's prior written approval for out of state travel.
Minnesota will be considered the home state for determining whether travel is out of state.
4.2. Total Obligation.The total obligation of the State for all compensation and reimbursements to the Grantee under
this grant contract will not exceed Thirty Seven Thousand Eight Hundred Forty dollars($37,840.00)or One
Hundred percent(100%)of the total actual, eligible costs incurred in the performance of the Grantee's duties
specified in Exhibit A.
4.3. Matching Requirements. The Grantee certifies that the following matching requirement for the grant contract
will (0.00%) incurred in h
111 be met by Grantee:No less than Zero percent 0.00/o of the total actual,eligible costs incu n t e
Y p ( ) � g
performance of the Grantee's duties specified in Exhibit A.
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•
4.4. Payment
4.4.1. Invoices. The State will promptly pay the Grantee after the Grantee presents an itemized invoice for the
services actually performed and the State's Authorized Representative accepts the invoiced services.
Invoices must be submitted timely and according to the schedule as outlined in Exhibit A.
4.4.2. Federal funds.Payments under this grant contract will be made from federal funds obtained by the Stat
through Title III,part D,of the Energy Policy and Conservation Act(42 U.S.C. 6321 et seq. and
amendments thereto; CFDA No. 81.128. Payments under this grant contract also include funding from
the American Recovery and Reinvestment Act of 2009(ARRA). The Grantee is responsible for
compliance with all federal requirements imposed on these funds and accepts full financial responsibility
for any requirements imposed by the Grantee's failure to comply with federal requirements.
5 Conditions of Payment
All services provided by the Grantee under this grant contract must be performed to the State's satisfaction,as
determined at the sole discretion of the State's Authorized Representative and in accordance with all applicable federal,
state, and local laws, ordinances, rules, and regulations. The Grantee will not receive payment for work found by the
State to be unsatisfactory or performed in violation of federal, state,or local law.
6 Authorized Representative
The State's Authorized Representative is Abby Finis,Energy Programs Specialist, 651-296-6205,or her successor,
and has the responsibility to monitor the Grantee's performance and the authority to accept the services provided under
this grant contract. If the services are satisfactory,the State's Authorized Representative will certify acceptance on
each invoice submitted for payment.
The Grantee's Authorized Representative is Eric Johnson,City Administrator,651-439-4439,or his successor. If the
Grantee's Authorized Representative changes at any time during this grant contract,the Grantee must immediately
notify the State.
7 Assignment,Amendments,Waiver,and Grant contract Complete
7.1 Assignment. The Grantee may neither assign nor transfer any rights or obligations under this grant contract
without the prior consent of the State and a fully executed Assignment Agreement, executed and approved by the
same parties who executed and approved this grant contract,or their successors in office.
7.2 Amendments. Any amendment to this grant contract must be in writing and will not be effective until it has been
executed and approved by the same parties who executed and approved the original grant contract, or their
successors in office.
7.3 Waiver. If the State fails to enforce any provision of this grant contract,that failure does not waive the provision
or its right to enforce it.
7.4 Grant Contract Complete. This grant contract contains all negotiations and agreements between the State and
the Grantee. No other understanding regarding this grant contract,whether written or oral,may be used to bind
either party.
8 Liability
The Grantee must indemnify, save,and hold the State,its agents, and employees harmless from any claims or causes of
action,including attorney's fees incurred by the State,arising from the performance of this grant contract by the
Grantee or the Grantee's agents or employees. This clause will not be construed to bar any legal remedies the Grantee
may have for the State's failure to fulfill its obligations under this grant contract.
9 State Audits
Under Minn. Stat. §16C.05, subd. 5,the Grantee's books,records,documents, and accounting procedures and practices
relevant to this grant contract are subject to examination by the State and/or the State Auditor or Legislative Auditor, as
appropriate,for a minimum of six years from the end of this grant contract.
S
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' 10 Government Data Practices and Intellectual Property
10.1. Government Data Practices. The Grantee and State must comply with the Minnesota Government Data
Practices Act,Minn. Stat. Ch. 13, as it applies to all data provided by the State under this grant contract,and as it
applies to all data created, collected,received, stored,used,maintained, or disseminated by the Grantee under this
• grant contract. The civil remedies of Minn. Stat. § 13.08 apply to the release of the data referred to in this clause
by either the Grantee or the State.
If the Grantee receives a request to release the data referred to in this Clause,the Grantee must immediately
notify the State. The State will give the Grantee instructions concerning the release of the data to the requesting
party before the data is released.
10.2. Intellectual Property Rights.GRANTEE represents and warrants that materials produced or used under this
grant contract do not and will not infringe upon any intellectual property rights of another, including but not
limited to patents,copyrights,trade secrets,trade names, and service marks and names. GRANTEE shall
indemnify and defend the STATE, at GRANTEE's expense,from any action or claim brought against the
STATE to the extent that it is based on a claim that all or part of the materials infringe upon the intellectual
property rights of another. GRANTEE shall be responsible for payment of any and all such claims,demands,
obligations,liabilities, costs, and damages including,but not limited to reasonable attorneys' fees arising out of
this grant contract, amendments and supplements thereto,which are attributable to such claims or actions.
If such a claim or action arises, or in GRANTEE's or the STATE's opinion is likely to arise,GRANTEE shall, at
the STATE's discretion, either procure for the STATE the right or license to continue using the materials at
issue or replace or modify the allegedly infringing materials. This remedy shall be in addition to and shall not
be exclusive to other remedies provided by law.
11 Workers' Compensation
The Grantee certifies that it is in compliance with Minn. Stat. § 176.181, subd.2,pertaining to workers' compensation
insurance coverage. The Grantee's employees and agents will not be considered State employees. Any claims that
may arise under the Minnesota Workers' Compensation Act on behalf of these employees and any claims made by any
third party as a consequence of any act or omission on the part of these employees are in no way the State's obligation
or responsibility.
12 Publicity and Endorsement
12.1.Publicity. Any publicity regarding the subject matter of this grant contract must identify the State as the
sponsoring agency and must not be released without prior written approval from the State's Authorized
Representative. For purposes of this provision,publicity includes notices, informational pamphlets,press
releases,research,reports, signs, and similar public notices prepared by or for the Grantee individually or jointly
with others,or any subcontractors,with respect to the program,publications, or services provided resulting from
this grant contract.
12.2.Endorsement. The Grantee must not claim that the State endorses its products or services.
13 Governing Law,Jurisdiction, and Venue
Minnesota law,without regard to its choice-of-law provisions, governs this grant contract. Venue for all legal
proceedings out of this grant contract, or its breach, must be in the appropriate state or federal court with competent
jurisdiction in Ramsey County,Minnesota.
14 Termination
14.1 Termination by the STATE. The STATE may cancel this grant contract at any time,with or without cause,upon
30 days written notice to the GRANTEE. Upon termination,the GRANTEE will be entitled to payment,
determined on a pro rata basis, for services satisfactorily performed.
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14.2 Termination for Cause. The STATE may cancel this Grant Contract immediately if the STATE finds that there
has been a failure to comply with the provisions of this Grant Contract,that reasonable progress has not been
made or that the purposes for which the funds were granted have not been or will not be fulfilled.The STATE
may take action to protect the interests of the State of Minnesota,including the refusal to disburse additional fp
funds and requiring the return of all or part of the funds already disbursed.
14.3 Termination for Insufficient Funding. The State may immediately terminate this Grant Contract if: 1)funding
for Grant No.DE-EE0000757 is withdrawn by the US Department of Energy;2)it does not obtain funding from
the Minnesota Legislature, or other funding source; or 3) if funding cannot be continued at a level sufficient to
allow for the payment of the services covered here. Termination must be by written or fax notice to the Grantee.
The State is not obligated to pay for any services that are provided after notice and effective date of termination.
However,the Grantee will be entitled to payment,determined on a pro rata basis,for services satisfactorily
performed to the extent that funds are available.The State will not be assessed any penalty if the Grant Contract
is terminated because of the decision of the Minnesota Legislature, or other funding source,not to appropriate
funds.The State must provide the Grantee notice of the lack of funding within a reasonable time of the State's
receiving that notice.
15 Data Disclosure
Under Minn. Stat. § 270C.65, Subd. 3,and other applicable law,the Grantee consents to disclosure of its social
security number,federal employer tax identification number, and/or Minnesota tax identification number,already
provided to the State,to federal and state tax agencies and state personnel involved in the payment of state obligations.
These identification numbers may be used in the enforcement of federal and state tax laws which could result in action
requiring the Grantee to file state tax returns and pay delinquent state tax liabilities, if any.
16 Davis-Bacon Act(DBA)Requirements
Section 1606 of ARRA requires that all laborers and mechanics employed by contractors and subcontractors on
construction,alteration,or repair projects funded directly by or assisted in whole or in part by ARRA Funds shall be
paid wages at rates not less than those prevailing on projects of a similar character in the locality as determined by tho
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 USC 3145,the United States Department of Labor has issued
regulations 29 CFR Parts 1, 3, and 5 to implement the Davis-Bacon and related Acts. Wage determinations can be
found at: www.wdol.gov and additional information on DBA Requirements can be found at:www.dolgov/esa/whd.
This contract does not explicitly or implicitly require that a scope of work proposed to satisfy the outcomes of the
Grantee's Program must include activities of a nature and scope that require DBA compliance.However, if proposed
work includes such activities,the state will hold the Grantee responsible for all federal requirements involving DBA
wages and reporting. It is the responsibility of the Grantee to determine if DBA wages will apply to their program.
17 Waste Management Plan
The Grantee is required to comply with all Federal, state and local regulations for waste disposal for projects funded
through the Grantee's program.Loan recipients must address waste generated by the project,if applicable,and describe
the plan to dispose of any sanitary or hazardous waste(e.g., construction and demolition debris,old light bulbs, lead
paint, lead ballasts,piping,roofing material, discarded equipment, debris, and asbestos)generated as a result of the
project.
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18 ,Compliance with National Historic Preservation Act
Prior to the expenditure of federal funds, if applicable,projects must be evaluated to determine if they are subject to
review under Section 106 of the National Historic Preservation Act(NHPA)of 1966(36CFR 800). Section 106 applies
to projects that may affect properties listed in or eligible for listing in the National Register of Historic Places.
41) Properties meeting the following criteria will be subject to Section 106 review:
• Is at least 45 years old; and
• Listed in or eligible for listing in the NRHP(either individually or as part of a district);
• Any project involving ground disturbing activity(excavation,utility installation,etc.).
It is the responsibility of the Grantee to provide information needed to complete the Section 106 evaluation. Intentional
efforts to circumvent these requirements by altering or damaging a historic property that is a candidate for federal grant
funding will be construed as"anticipatory demolition"as defined in section 110k of the NHPA as follows:
Section 110[16 U.S.C. 470h-2(k)—Anticipatory demolition]; (k)Each Federal agency shall ensure that the agency
will not grant a loan, loan guarantee,permit,license,or other assistance to an applicant who,with intent to avoid the
requirements of section 106 of this Act,has intentionally significantly adversely affected a historic property to which
the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur,unless the
agency,after consultation with the [Advisory Council on Historic Preservation],determines that circumstances justify
granting such assistance despite the adverse effect created or permitted by the applicant.
Initiating a grant funded project before reviews re q uired under Section 106 of the NHPA have been completed may
cause significant delays in the release of grant funds,require negotiated mitigation, or result in an outright loss of
federal funding.
19 Disadvantaged Business Enterprises
Projects funded in whole or in part from funds received by the Grantee directly from this grant contract must,to the
• extent practicable, ensure that bidding contractors are qualified and participate in available apprentice and training
programs for all work performed. Bidding for contracts must,to the extent practicable,use the process established in
Minnesota Statutes, section 16C.16, subdivision 4,5, 6 and 7, except that subdivision 12 does not apply.
20 Buy American
The Grantee confirms that, if applicable, it is in compliance with the Buy American provision in the American
Reinvestment and Recovery Act of 2009 (ARRA) (Section 1605 of Title XI)which directs that, subject to certain
exceptions,no funds appropriated or otherwise made available for a project may be used for the construction,
alteration,maintenance,or repair of a public building or public work unless all the iron, steel, and manufactured goods
used are produced in the United States.
A Grantee requesting a determination regarding the inapplicability of the Buy American restrictions for lack of quantity
or quality,increase of cost of the project by more than 25 percent, or inconsistency with the public interest,must be
submitted to the State prior to the execution of the grant agreement.The prospective Grantee shall include the
information and applicable supporting data required by 2 CFR 176.140(c)and(d)in the request. Exceptions must be
approved by the State and the United States Department of Energy.
Additional information,including category exclusions and exceptions,on Buy American can be found at:
wwwl.eere.energy.gov/recovery/buyamerican provision.html.
G-City of Oak Park Heights-Commerce 4
Grant(Rev.11/08)
r
21 Reporting
Section 1512 of the American Recovery and Reinvestment Act of 2009(ARRA)states recipients of"Recovery Act
funds must comply with the extensive reporting requirements."The GRANTEE must submit progress reports detailing
the progress and tasks completed of the grant agreement funded in whole,or in part, with ARRA funding including 0
percent of project completion to the STATE by the 5th day of each month for the preceding month's work. If a
GRANTEE does not comply with this requirement the STATE reserves the right to withhold funding.
1. STATE ENCUMBRANCE VERIFICATION 3. MN DEPARTMENT OF COMMERCE
Individual certifies that funds have been encumbered as Individual certifies that fiends have been encumbered as
Required by Minn.Stat.§§16A.15 and 16C.05 required
11by Minn.Stat.§§16A.15 and 16C.05.
Signed: _ J' �. �, .._s:: By: GG d� �t
Da =: .?/' Title: �G .,r i.a7
CFMS: Zzf/J'S-- Date: thrf`d
2. CITY OF OAK PARK HEIGHTS
The Grantee certifies that the appropriate person(s)have executed the
grant con - t/behalf of the Grantee as required by applicable
articl- �',resolutions,or ordinances.
Distribution:
By. MN Dept.of Commerce,Accounting Dept.
Title: /G ,/�* M Grantee
17+D ikm. State's Authorized Representative(copy)
Date: 4-'7'10
•
By:
Title:
Date:
•
G-City of Oak Park Heights-Commerce 5
Grant(Rev. 11/08)
Exhibit A
GRANTEE'S DUTIES
O. GRANTEE shall do all things necessary to complete the following tasks:
TABLE.1: Approved Measures and Funding Grant Match Total , End Date
1 Oak Park Heights City Hall
1.1 Purchase Energy Star refrigerator and
07/15/2010
dishwasher. $ 3,140 $ 0 $ 3,140
2 Oak Park Heights City Park
2.1 Retrofit park shelter lighting with a solar PV and 09/30/2010
LED lighting system. $ 34,700 $ 0 $ 34,700
Total Cost $ 37,840 $ 0 $37,840
B. Eligible Costs
Eligible costs include necessary and reasonable costs incurred for subcontractors to:
1. Design, acquire, install and commission measures specified in Table 1; and
2. Remove, store,transport and dispose of waste materials generated.
Eligible costs include actual costs incurred by subcontractors. Other expenses may be eligible only if pre-approved in
writing by the State's Authorized Representative. Please note:A DUNS number is required for any subcontractor
receiving direct funding from this grant agreement totaling$25,000 or more.
C. Payments-Reports
Grantee shall submit monthly progress reports and payment requests for reimbursement of eligible costs incurred not
•
later than the 5th day of each month for the preceding month's work. Grantee shall submit progress reports and
payment requests on the form provided as Exhibit B of this grant agreement.
Grantee further agrees to maintain and provide energy consumption data for the building being improved through the
B3 public building benchmarking database by:
a)entering base line data for the year prior to the grant agreement; and
b)entering monthly data for a period of three years after the energy efficiency improvements(s)have been made.
D. Acceptance Testing Documentation(If Applicable)
Grantee shall submit to Office of Energy Security(OES)acceptance testing documentation required by Minnesota
Rules Part 1323.0672, Subpart 3, for modifications to heating,ventilating and/or air conditioning systems.Final
reimbursement for these types of modifications will not be made until the acceptance testing documentation is received
by OES.
E. Promotional Materials
All promotional and informational materials distributed by or for the Grantee shall contain the following statement:
"This project was made possible by a grant from the U.S.Department of Energy and the Minnesota Department of
Commerce through the American Recovery and Reinvestment Act of 2009(ARRA),"unless this requirement is waived
in writing by the State.
40
G-City of Oak Park Heights-Commerce 6
Grant(Rev.11/08)
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Exhibit C
Grantee's Davis-Bacon Act (DBA) Requirements
Davis-Bacon Act: 29 CFR Part 5.5
The"recipient"referred to throughout the Davis-Bacon contract conditions is the"Grantee". This language must
be included in all Davis Bacon covered contracts and any and all subcontracts.
(a)The Agency head shall cause or require the contracting officer to insert in full in any contract in excess of
$2,000 which is entered into for the actual construction, alteration and/or repair, including painting and decorating,of a
public building or public work,or building or work financed in whole or in part from Federal funds or in accordance with
guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a
loan,grant or annual contribution(except where a different meaning is expressly indicated), and which is subject to the
labor standards provisions of any of the acts listed in Sec. 5.1,the following clauses(or any modifications thereof to meet
the particular needs of the agency,Provided,That such modifications are first approved by the Department of Labor):
(1)Minimum wages. (i)All laborers and mechanics employed or working upon 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),will be
paid unconditionally and not less often than once a week,and without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act
(29.CFR part 3)),the full amount of wages and bona fide fringe benefits(or cash equivalents thereof)due at time of
payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is
attached hereto and made a part hereof,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 1(b)(2)of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of paragraph(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.
Much laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the
classification of work actually performed,without regard to skill,except as provided in Sec. 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 employer's 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)(1)(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.
(ii)(A)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 shall approve an additional classification and wage rate and fringe benefits
therefore only when the following criteria have been met:
(1)The work to be performed by the classification requested is not performed by a classification in the wage
determination;and
(2)The classification is utilized in the area by the construction industry;and
(3)The proposed wage rate, including any bona fide fringe benefits,bears a reasonable relationship to the wage rates
contained in the wage determination.
(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 rate(including the amount designated for
fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator
of the Wage and Hour Division,Employment Standards Administration,U.S.Department of Labor,Washington,DC
20210.The Administrator, or an authorized representative, will approve,modify, or disapprove every additional
classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer
//thin the 30-day period that additional time is necessary.
G-City of Oak Park Heights-Commerce 8
Grant(Rev. 11/08)
(C)In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives,'and
the contracting officer do not agree on the proposed classification and wage rate(including the amount designated for
fringe benefits,where appropriate),the contracting officer shall refer the questions,including the views of all interested
parties and the recommendation of the contracting officer,to the Administrator for determination.The Administrator,or
an authorized representative,will issue a determination within 30 days of receipt and so advise the contracting officer or•
will notify the contracting officer within the 30-day period that additional time is necessary.
(D)The wage rate(including fringe benefits where appropriate)determined pursuant to 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 classification.
(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 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(write in name of Federal Agency or the loan or grant recipient)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 helper, employed 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(Agency)may,after
written notice to the contractor, sponsor,applicant, or owner,take such action as may be necessary to cause the
suspension of any further payment,advance, or guarantee of funds until such violations have ceased. •
(3)Payrolls and basic records. (i)Payrolls and basic records relating thereto shall be maintained by the contractor
during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working
at 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). Such records shall contain the name,address, and social security number of
each such worker,his or her correct 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 1(b)(2)(B)of the
Davis-Bacon Act), daily and weekly number of hours worked, 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 1(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 communicated in
writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in
providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written
evidence of the registration of apprenticeship programs and certification of trainee programs,the registration of the
apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
(ii)(A)The contractor shall submit weekly for each week in which any contract work is performed a copy of all
payrolls to the(write in name of appropriate federal agency)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 applicant, sponsor,or owner,as the case may be, for
transmission to the(write in name of agency). 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 included on weekly transmittals. Instead the payrolls shall only need to include an individually
identifying number for each employee(e.g.,the last four digits of the employee's social security number).The required
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 http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site.
G-City of Oak Park Heights-Commerce 9
Grant(Rev.11/08)
' 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(write in name of appropriate federal agency)if the agency is a party to the contract,but
Wf the agency is not such a party,the contractor will submit them to the applicant, sponsor,or owner, as the case may be,
for transmission to the(write in name of agency),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 records, without weekly submission to the sponsoring government agency(or the 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 Sec. 5.5 (a)(3)(ii)of
Regulations,29 CFR part 5,the appropriate information is being maintained under Sec. 5.5 (a)(3)(i)of Regulations,29
CFR part 5, and that such information is correct and complete;
(2)That each laborer or mechanic(including each helper, apprentice, and trainee)employed on the contract during the
payroll period has been paid the full weekly wages earned,without rebate, either directly or indirectly, and that no
deductions have been made either directly or indirectly from the full wages earned,other than permissible deductions as
set forth in Regulations,29 CFR part 3;
(3)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into
the contract.
(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 paragraph(a)(3)(ii)(B)of this
section.
(D)The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal
Srosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(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(write the name of the agency)or the
Department of Labor,and shall permit such representatives to interview employees during working hours on the job.If
the contractor or subcontractor fails to submit the required records or to make them available,the Federal agency may,
after written notice to the contractor, sponsor, applicant, or owner,take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds.Furthermore, failure to submit the required records
upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
(4)Apprentices and trainees--(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
program registered with the U.S.Department of Labor,Employment and Training Administration, Office 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 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 for the work actually performed.Where 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
allurly rate)specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be
aid 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
G-City of Oak Park Heights-Commerce 10
Grant(Rev. 11/08)
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 lip
event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognize
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.
(ii)Trainees. Except as provided in 29 CFR 5.16,trainees will not be permitted to work at less than the predetermined
rate for the work performed 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 job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration.Every trainee must be paid at not less than the rate specified
in the approved program for 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 trainee program does not mention fringe benefits,trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that
there is an apprenticeship program associated with the corresponding journeyman 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 rate on the wage determination for the classification of work actually performed.In
addition, any trainee 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 for the work actually performed.In the event the
Employment and Training Administration withdraws approval of a training program,the contractor will no longer be
permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable
program is approved.
(iii)Equal employment opportunity. The utilization of apprentices,trainees and journeymen under this part shall be in
conformity with the equal employment opportunity requirements of Executive Order 11246,as amended,and 29 CFR lir
part 30.
(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.
(6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR
5.5(a)(1)through(10)and such other clauses as the(write in the name of the Federal agency)may by appropriate
instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts.
The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the
contract clauses in 29 CFR 5.5.
(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 parts 1, 3, and 5 are herein incorporated by reference in this contract.
(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 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)JO
any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government
G-City of Oak Park Heights-Commerce 11
Grant(Rev.11/08)
contracts by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (ii)No part of this contract shall be
subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a)of the Davis-
Bacon Act or 29 CFR 5.12(a)(1). (iii)The penalty for making false statements is prescribed in the U.S. Criminal Code, 18
U.S.C. 1001.
(b)Contract Work Hours and Safety Standards Act.The Agency Head shall cause or require the contracting
VP officer to insert the following clauses set forth in paragraphs(b)(1), (2), (3),and(4)of this section in full in any contract
in an amount in excess of$100,000 and subject to the overtime provisions of the Contract Work Hours and Safety
Standards Act. These clauses shall be inserted in addition to the clauses required by Sec. 5.5(a)or 4.6 of part 4 of this
title.As used in this paragraph,the terms laborers and mechanics include watchmen and guards.
(1)Overtime requirements.No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in 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 of pay for all hours
worked in excess of forty hours in such workweek.
(2)Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in
paragraph(b)(1)of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid
wages.In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under
contract for the District of Columbia or a territory,to such District or to such territory), for liquidated damages. Such
liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in paragraph(b)(1)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 workweek of forty
hours without payment of the overtime wages required by the clause set forth in paragraph(b)(1)of this section.
(3)Withholding for unpaid wages and liquidated damages.The(write in the name of the Federal agency or the loan or
grant recipient)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 account 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
federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same prime
Wcontractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor
or ,unpaid wages and liquidated damages as provided in the clause set forth in paragraph(b)(2)of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts 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 prime contractor 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. (c)In addition to the clauses contained in
paragraph(b),in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the
other statutes cited in Sec. 5.1,the Agency Head shall cause or require the contracting officer to insert a clause requiring
that 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.Further,the Agency Head shall cause or require the contracting officer
to insert in any such contract a clause providing that 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
(write the name of agency)and the Department of Labor, and the contractor or subcontractor will permit such
representatives to interview employees during working hours on the job.
G-City of Oak Park Heights-Commerce 12
Grant(Rev.11108)
B DI
•
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office of 85 7th Place East, Suite 500
St. Paul, MN 55101-2198
P: 651.297.7047 F: 651.284.4211
www.energy.mn.gov
energy.contracts@state.mn.us
June 3, 2010
Eric Johnson, City Administrator
City of Oak Park Heights
14168 Oak Park Boulevard North
Stillwater, MN 55082
Dear Eric Johnson:
I have enclosed two copies of your agreement with the Minnesota Department of Commerce.
Please sign and date all copies and return them to our office as soon as possible. You may mail
your signed copies to:
Kelly Cooper, Grant Specialist Intermediate
Office of Energy Security
MN Dept of Commerce
85 Seventh Place East, Suite 500
Saint Paul, MN 55101
I will mail you a fully executed copy when all signatures have been acquired.
Remember that you may not begin work under this agreement until all signatures have been
acquired.
If you have any questions, please call Abby Finis at 651-296-6205 or myself at 651-297-7047.
Sincerely, y�
CS�9C-'V',QA
Kelly Cooper
Grant Specialist Intermediate
Enclosures
as S ter `_
STATE OF MINNESOTA al
GRANT CONTRACT ritaAid
1"his grant contract is between the State of Minnesota,acting through its commissioner of mmerce("State")and City of
Park Heights, , Stillwater,MN 55082("Grantee").
ta
Reci is V ' '
1. Under Minnesota Statute §216C.02 Subdivision 1,the State is empowered to enter into this grant. ` ,
2. The State is in need of assistance in the promotion of renewable energy resources.
3. The Grantee represents that it is duly qualified and agrees to perform all services described in this grant con ract to tl e
satisfaction of the State.
Grant Contract �.
1 Term of Grant Contract
1.1 Effective date: 06/07/2010, or the date the State obtains all required signatures under Minnesota Statutes Section
16C.05, subdivision 2,whichever is later.
The Grantee must not begin work under this grant contract until this contract is fully executed and the
Grantee has been notified by the State's Authorized Representative to begin the work.
1.2 Expiration date: 03/31/2011,or until all obligations have been satisfactorily fulfilled,whichever occurs first.
1.3 Survival of Terms. The following clauses survive the expiration or cancellation of this grant contract: 8. Liability;
9. State Audits; 10. Government Data Practices and Intellectual Property; 12.Publicity and Endorsement; 13.
Governing Law,Jurisdiction,and Venue; and 15.Data Disclosure; and Exhibit A, Section C.
2 Grantee's Duties
The Grantee, who is not a state employee,will execute the duties set forth in Exhibit A, incorporated herein by
reference.
Time
The Grantee must comply with all the time requirements described in this grant contract. In the performance of this
grant contract,time is of the essence.
4 Consideration and Payment
4.1. Consideration.The State will pay for all services performed by the Grantee under this grant contract as follows:
4.1.1. Compensation. The Grantee will be paid the lesser of Thirty Seven Thousand Eight Hundred Forty
dollars($37,840.00)or One Hundred percent(100%)of actual eligible costs incurred in the
performance of the Grantee's duties according to the breakdown of costs contained in the grant budget
(Exhibit B)which is attached to and incorporated into this grant contract.
4.1.2. Travel Expenses.Reimbursement for travel and subsistence expenses actually and necessarily incurred by
the Grantee as a result of this grant contract will not exceed Zero dollars($0.00);provided that the
Grantee will be reimbursed for travel and subsistence expenses in the same manner and in no greater
amount than provided in the current"Commissioner's Plan"promulgated by the commissioner of
Employee Relations.The Grantee will not be reimbursed for travel and subsistence expenses incurred
outside Minnesota unless it has received the State's prior written approval for out of state travel.
Minnesota will be considered the home state for determining whether travel is out of state.
4.2. Total Obligation. The total obligation of the State for all compensation and reimbursements to the Grantee under
this grant contract will not exceed Thirty Seven Thousand Eight Hundred Forty dollars($37,840.00)or One
Hundred percent(100%)of the total actual, eligible costs incurred in the performance of the Grantee's duties
specified in Exhibit A.
4.3. Matching Requirements. The Grantee certifies that the following matching requirement for the grant contract
will be met by Grantee:No less than Zero percent(0.00%)of the total actual, eligible costs incurred in the
performance of the Grantee's duties specified in Exhibit A.
G-City of Oak Park Heights-Commerce 0
Grant(Rev. 11/08)