HomeMy WebLinkAbout110505PREVISED: 5/3/11
NOTICE OF THE
EXECUTIVE AND REGULAR SESSIONS OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 5:30 P.M. - EXECUTIVE SESSION
(Executive Session will be held in the Fountain Conference Room - 2nd floor)
6:30 P.M. - REGULAR SESSION
WHEN: THURSDAY, MAY 5, 2011
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Councilmembers of the Town of Fountain Hills will attend either in person o r by telephone conference call; a quorum of the Town’s
various Commissions or Boards may be in attendance at the Council meeting.
“Notice is hereby given that pursuant to A.R.S. §1 -602.A.9 , subject to certain specified statutory exceptions, parents have a right to
consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Town
Council are audio and/or video recorded, and, as a result, proceedings in which children are present may be subject to suc h recording.
Parents in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take pers onal action
to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is
made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1 -602.A.9 have been waived.”
PROCEDURE FOR ADDRESSING THE COUNCIL
Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the
Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in
the Council Chamber Lobby and near the Clerk’s position on the dais.
Speakers will be called in the order in which the speaker cards were received either by the Clerk
or the Mayor. At that time, speakers should stand and approach the podium. Speakers are
asked to state their name prior to commenting and to direct their comments to the Presiding
Officer and not to individual Councilmembers. Speakers’ statements should not be
repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have
waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion
of their time for a later time or (ii) transfer any portion of their time to another speaker.
If there is a Public Hearing, please submit the speaker card to speak to that issue during
the Public Hearing.
Individual speakers will be allowed three contiguous minutes to address the Council. Time
limits may be waived by (i) discretion of the Town Manager upon request by the speaker not
less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the
Mayor either prior to or during a Meeting. Please be respectful when making your
comments. If you do not comply with these rules, you will be asked to leave.
Mayor Jay T. Schlum
Councilmember Dennis Brown Councilmember Tait D. Elkie
Vice Mayor Dennis Contino Councilmember Cassie Hansen
Councilmember Ginny Dickey Councilmember Henry Leger
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EXECUTIVE SESSION AGENDA
CALL TO ORDER – Mayor Jay T. Schlum
1.) ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to §38-
431.03(A)(3), discussion or consultation for legal advice with the attorney or attorneys of the
public body (specifically, relating to medical marijuana.).
2.) ADJOURNMENT.
REGULAR SESSION AGENDA
CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum
INVOCATION – Pastor Tony Pierce, First Baptist Church
ROLL CALL – Mayor Jay T. Schlum
MAYOR’S REPORT
i) PROCLAMATION read by Mayor Jay T. Schlum declaring May 12, 2011,
National Fibromyalgia Awareness Day.
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
i) PRESENTATION by Barry Broome, President and CEO, Greater Phoenix
Economic Council (GPEC).
ii) PRESENTATION by Mayor's Youth Councilmember Kayla Behnke, on her end-
of-the-year project: Top Three Risk Behaviors Threatening Teens in Fountain Hill.
CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed on the agenda. Any
such comment (i) must be within the jurisdiction of the Council and (ii) is subject to reasonable time, place, and manner
restrictions. The Council will not discuss or take legal action on matters raised during “Call to the Public” unless the
matters are properly noticed for discussion and legal action. At the conclusion of the call to the public, individual
Councilmembers may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on a
future Council agenda.
CONSENT AGENDA
1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from April
4, 12, and 21, 2011.
2. CONSIDERATION of a FINAL REPLAT for a lot line adjustment between 15848 E.
Palomino Boulevard and 15860 E. Palomino Boulevard, aka Plat 605A, Block 2, Lots 19 and
20 (APN’s 176-13-345 and 176-13-346). Case #S2011-03.
REGULAR AGENDA
3. CONSIDERATION of Resolution 2011-15, naming the Senior Services Activity Center
“The John O’Flynn Senior Activity Center in recognition for his many years of devoted and
unwavering service to the senior residents of the Town of Fountain Hills.
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4. CONSIDERATION of a CONTRACT with Energy Controls I (ECI) for the purchase and
installation of the energy management system in the amount of $84,881.91.
5. CONSIDERATION of a 2-year EXTENSION of the approved UTILITY DISTURBANCE
PERMIT for “La Bella Vita at Firerock”, formerly “The Retreat at Firerock”.
6. CONSIDERATION of a 2-year EXTENSION of time to record the FINAL PLAT for “La
Bella Vita at Firerock”, formerly “The Retreat at Firerock”.
7. COUNCIL DISCUSSION/DIRECTION to the Town Manager.
Items listed below are related only to the propriety of (i) placing such items on a future
agenda for action or (ii) directing staff to conduct further research and report back to the
Council:
A. None.
8. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Town
Manager.
9. ADJOURNMENT.
DATED this 3rd day of May 2011.
Bevelyn J. Bender, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480 -816-5100
(voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this meeting or
to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council with this agenda
are available for review in the Clerk’s office.
REVISED: 5/3/11
NOTICE OF THE
EXECUTIVE AND REGULAR SESSIONS OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 5:30 P.M. - EXECUTIVE SESSION
(Executive Session will be held in the Fountain Conference Room - 2nd floor)
6:30 P.M. - REGULAR SESSION
WHEN: THURSDAY, MAY 5, 2011
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s
various Commissions or Boards may be in attendance at the Council meeting.
“Notice is hereby given that pursuant to A.R.S. §1 -602.A.9 , subject to certain specified statutory exceptions, parents have a right to
consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Town
Council are audio and/or video recorded, and, as a result, proceedings in which children are present may be subject to such recording.
Parents in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal action
to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is
made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1-602.A.9 have been waived.”
PROCEDURE FOR ADDRESSING THE COUNCIL
Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the
Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in
the Council Chamber Lobby and near the Clerk’s position on the dais.
Speakers will be called in the order in which the speaker cards were received either by the Clerk
or the Mayor. At that time, speakers should stand and approach the podium. Speakers are
asked to state their name prior to commenting and to direct their comments to the Presiding
Officer and not to individual Councilmembers. Speakers’ statements should not be
repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have
waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion
of their time for a later time or (ii) transfer any portion of their time to another speaker.
If there is a Public Hearing, please submit the speaker card to speak to that issue during
the Public Hearing.
Individual speakers will be allowed three contiguous minutes to address the Council. Time
limits may be waived by (i) discretion of the Town Manager upon request by the speaker not
less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the
Mayor either prior to or during a Meeting. Please be respectful when making your
comments. If you do not comply with these rules, you will be asked to leave.
Mayor Jay T. Schlum
Councilmember Dennis Brown Councilmember Tait D. Elkie
Vice Mayor Dennis Contino Councilmember Cassie Hansen
Councilmember Ginny Dickey Councilmember Henry Leger
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EXECUTIVE SESSION AGENDA
CALL TO ORDER – Mayor Jay T. Schlum
1.) ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to §38-
431.03(A)(3), discussion or consultation for legal advice with the attorney or attorneys of the
public body (specifically, relating to medical marijuana.).
2.) ADJOURNMENT.
REGULAR SESSION AGENDA
CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum
INVOCATION – Pastor Tony Pierce, First Baptist Church
ROLL CALL – Mayor Jay T. Schlum
MAYOR’S REPORT
i) PROCLAMATION read by Mayor Jay T. Schlum declaring May 12, 2011,
National Fibromyalgia Awareness Day.
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
i) PRESENTATION by Barry Broome, President and CEO, Greater Phoenix
Economic Council (GPEC).
ii) PRESENTATION by Mayor's Youth Councilmember Kayla Behnke, on her end-
of-the-year project: Top Three Risk Behaviors Threatening Teens in Fountain Hill.
CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed on the agenda. Any
such comment (i) must be within the jurisdiction of the Council and (ii) is subject to reasonable time, place, and manner
restrictions. The Council will not discuss or take legal action on matters raised during “Call to the Public” unless the
matters are properly noticed for discussion and legal action. At the conclusion of the call to the public, individual
Councilmembers may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on a
future Council agenda.
CONSENT AGENDA
1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from April
4, 12, and 21, 2011.
2. CONSIDERATION of a FINAL REPLAT for a lot line adjustment between 15848 E.
Palomino Boulevard and 15860 E. Palomino Boulevard, aka Plat 605A, Block 2, Lots 19 and
20 (APN’s 176-13-345 and 176-13-346). Case #S2011-03.
REGULAR AGENDA
3. CONSIDERATION of Resolution 2011-15, naming the Senior Services Activity Center
“The John O’Flynn Senior Activity Center in recognition for his many years of devoted and
unwavering service to the senior residents of the Town of Fountain Hills.
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4. CONSIDERATION of a CONTRACT with Energy Controls I (ECI) for the purchase and
installation of the energy management system in the amount of $84,881.91.
5. CONSIDERATION of a 2-year EXTENSION of the approved UTILITY DISTURBANCE
PERMIT for “La Bella Vita at Firerock”, formerly “The Retreat at Firerock”.
6. CONSIDERATION of a 2-year EXTENSION of time to record the FINAL PLAT for “La
Bella Vita at Firerock”, formerly “The Retreat at Firerock”.
7. COUNCIL DISCUSSION/DIRECTION to the Town Manager.
Items listed below are related only to the propriety of (i) placing such items on a future
agenda for action or (ii) directing staff to conduct further research and report back to the
Council:
A. None.
8. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Town
Manager.
9. ADJOURNMENT.
DATED this 3rd day of May 2011.
Bevelyn J. Bender, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5100
(voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this meeting or
to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council with this agenda
are available for review in the Clerk’s office.
PRESENTED BY
Barry Broome
GPEC President and CEO
ADVANCING OPPORTUNITIES IN GREATER PHOENIX
PRESENTED TO
Town of Fountain Hills Council Meeting
May 5, 2011
•A true regional model where public and private members collaborate to
promote Greater Phoenix as a great place to grow business
•Supported by Maricopa County, 20 cities and towns, and more than 145
private-sector businesses
•The catalyst that strengthens the region’s economic base, ensuring it is both
diversified and competitive
GREATER PHOENIX ECONOMIC COUNCIL
The Region’s Economic Development Authority
GPEC PROSPECT ACTIVITY
Five-Year Analysis of Prospect Sources
2011*2010 2009 2008 2007
Total % of Total Total % of Total Total % of Total Total % of Total Total % of Total
ACA 24 16%32 15%43 22%42 25%49 29%
EDDT 9 6%8 4%4 2%7 4%8 5%
GPEC 100 21 14%25 12%31 16%30 18%34 20%
GPEC-direct 48 32%87 42%64 32%36 22%34 20%
GPEC investor 13 9%11 5%3 2%4 2%5 3%
Local broker 30 20%35 17%10 5%18 11%24 14%
Out-of-state
broker 5 3%10 5%11 6%19 11%12 7%
Unknown/
Other 2 1%1 0%32 16%11 7%2 1%
TOTAL 151 209 198 167 168
*Through Apr 20, 2011
•International prospects currently comprise 20% of GPEC’s pipeline
•Throughout FY11, international activity has been comparable to if not exceeding CA
prospects
GPEC PROSPECT ACTIVITY
Emphasis on Foreign Direct Investment Proving Effective
2011*2010 2009
International Prospects 28 34 31
% of total 20%17%16%
*Through Mar 31, 2011
•Of existing international prospects, nine are from Asia, eight from Canada, five
from Europe, two from South America and one from Australia
2011*2010 2009 2008 2007
Total % of Total Total % of Total Total % of Total Total % of Total Total % of Total
Advanced
Business
Services
21 13.8%34 16.3%42 21.2%48 28.7%46 27.4%
Aerospace 4 2.6%6 2.9%6 3%8 4.8%7 4.2%
Bioscience /
Healthcare 10 6.6%12 5.7%11 5.6%11 6.6%13 7.7%
High-tech 16 10.5%16 7.9%8 4%8 4.8%10 6%
Renewables 29 18.4%51 24.4%47 23.7%13 7.8%1 0.6%
TOTAL 79 52.0%119 56.9%114 57.6%88 52.7%77 45.8%
GPEC PROSPECT ACTIVITY
By High-wage Industry
*Through Apr 21, 2011
GPEC SCORECARD
Progress Toward Goals (Through Mar 31, 2011)
* Through Mar 31, 2011
Bolster International and Go Forth in China
•International will assume a more dominant role in business attraction efforts
•China will remain at the top of opportunity-rich markets
Broaden Site-Selector Approach
•10.5% increase in prospect activity from national site selectors
•GPEC will continue to build a strong program to engage the top 100 site selectors
Expand ExecuTour Model
•Continue to target national site-selection consultants while also including international
delegations, investment organizations and chief-level executives of prospective locates
Leverage Opportunity in California
•As a natural partner to the Golden State, GPEC will continue to build the case for California
businesses to expand or relocate to the region
APPLYING OUR SELLING APPROACH
Activities Planned for FY2011-12
Launch Pilot Retention and Expansion Model
•Create a retention and expansion mechanism based on the strengths of its research and
call campaign structure; organize intelligence to support public -sector partners in identifying
companies that are primed to expand or contract
Work with Communities to Develop Competitiveness Programs
•Partner with municipalities to design economic development programs at the local level
Continue Monitoring Competitiveness
•Assess the competitive landscape of state and local incentives that target the reduction of
capital and operation costs among the Mountain West region
Pursue Emerging Innovation
•Monitor innovative technology trends and develop a viable, return-driven venture capital
strategy to pursue opportunities that will lead to a cluster of new competencies in the region
INCREASING COMPETITIVENESS
Activities Planned for FY2011-12
Differentiate the Region’s Brand
•Launch a six-month pilot campaign targeted at select California markets prior to a FY13 roll -
out in other key domestic markets
Boost Digital Marketing Efforts
•Rebuild its primary website to better brand the region in a digital medium, increase efforts to
drive target audiences to the digital portal by way of e-mail marketing, social media, and
search engine marketing and optimization
Broaden Broker Engagement
•Improve mutually beneficial outcomes by developing routine e-marketing mailings, providing
on-site presentations and convening quarterly roundtable events
National Media Tour and International Media
•Conduct outbound media tours in New York city, San Francisco, LA and other major
markets; drive planning process for future international media ExecuTours in foreign markets
Media Engagement
•Promote economic development objectives through panel discussions, frequent podcasts,
video statements, and original content and briefings
NEW WAYS TO MARKET AND COMMUNICATE
Activities Planned for FY2011-12
602.256.7700
www.gpec.org
QUESTIONS?
Thank You for Your Time
@GPEC
Greater Phoenix Economic Council (Groups)
/gpecgreaterphoenix
Youth and Risky Behavior in
Fountain Hills
By Kalyn Behnke and Gary Krainz
Constituents of Risky Behavior
•Numerous Students were
interviewed at FHHS for
their opinions
•A majority of students
were willing to informally
give information for the
study
•Their were multiple types
of risky behavior in
addition to reasons for
why peers indulged in it
Types of Risky Behavior
•Out of the students willing to
comment, there were three
forms of risky behavior that
was most common in their
responses
•Illegal alcohol consumption
•Illegal drug use (mostly
medication or marijuana)
•Breaking curfew (for parties
and other teen gatherings)
–Curfew is covered more extensively
later in the presentation
Alcohol
•Most alcohol was obtained by the student
through a close friend of age or family
member purchasing it for them
•Alcohol is normally consumed at a house or an
area of relative secrecy
•Most youth recognize that they will be caught
if in “public” with alcohol, and therefore
usually follow strict guidelines where they can
be seen
Drug Use
•The two substances that were
mentioned the most with
interviewed students was
prescription, over-the-counter
medication, and marijuana
•The medication was normally
prescribed for a friend with a
sports injury or illness, or
purchased by the friend
•Not enough information was
received as to how the
marijuana was obtained,
because few have admitted to
themselves actually smoking
the substance
Why indulge?
•The major reasons include:
•A belief in a lack of parental and town
surveillance on their activities
•Extreme confidence in that their behavior
will not have deep repercussions
•That there is not enough activities to do in
Fountain Hills to occupy their time
Lack of Parent/Town Surveillance
•When asked, a majority of the students
answered the affirmative to the following:
–It is easy to host or attend parties in Fountain Hills
that contain illegal substances
–It is easy to cover to parents about attending said
parties
–However, it was found that the current laws for
curfew are effective. Most students stated that it
is nearly impossible to stay past curfew without
being caught.
Confidence Factor
•Most students do not understand the
repercussions of their actions
•Their have been several visits of police and
lawyers to the high school to state
punishments
–Most students appreciated this, because they
found out what they could do not to be legally
caught
–The message for not actually doing “risky
behavior” was not effectively conveyed
Lack of Activities
•Currently, there are programs available to
teens through the Boys and Girls Club, the
high school, and the Maricopa County Library
•Boys and Girls Club
–Favored by those without transportation
–Mostly benefits elementary and middle school
kids
–Not interesting nor practical for FHHS students
Lack of Activities Cont.
•High School Clubs
–Occur after school for one to two
hours
–Favored by all four years of
students
•But, are attended inconsistently
and sporadically
•Inconvenient for those who have
alternate or shortened schedules
•Limited in time frame and span of
available programs
Lack of Activities Cont.
•Maricopa County Library Teen
Activities
–Provide productive, enjoyable
programs for teens
–Vary in times, so practically
anyone could at least attend one
activity every couple weeks
–Does NOT effectively
communicate with students
•Children’s library programs have an
attendance that is twice the ones
for teenagers
•Forms of media, although used, do
not advertise to bring interest to
the activities
Suggestions For Improvement
•Establish a stronger connection between authority
figures (especially police) and students
•Take more opportunities for communication of the
punishments of indulging in risky behavior
•Emphasize that although students live a sheltered life
in Fountain Hills, they are not immune to
consequences
•Add more activities at various times for teenagers to
participate in
•Use forms of media (school announcements, mass
amounts of flyers) to advertise events that are a
healthy output for students
End of Presentation
•Questions and Comments
Encouraged
Redacted
Redacted
Page 1 of 2
TOWN OF FOUNTAIN HILLS
TOWN COUNCIL
AGENDA ACTION FORM
Meeting Date: 5/5/2011
Meeting Type: Regular Session
Agenda Type: Regular
Submitting Department: Community Services
Staff Contact Information: Kelley Fonville
Strategic Values: Civic Responsibility
Council Goal:
Promote Civility, Neighborliness Cooperation
REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of Resolution 2011-15, naming the Senior Services
Activity Center "The John O’Flynn Senior Activity Center" in recognition for his many years of devoted and unwavering
service to the senior residents of the Town of Fountain Hills.
Applicant: Kelley Fonville
Applicant Contact Information: Phone - 480-816-5186 and email - kfonville@fh.az.gov
Property Location: Senior Services - Activity Center office located inside the Community Center
Related Ordinance, Policy or Guiding Principle: Resolution No 2006-12 "Evelyn and Ken Breting Reception
Center".
Staff Summary (background): John O'Flynn was a resident of the Town of Fountain Hills from 1984 to 2008,
throughout that period; he worked toward establishing programs that would benefit the community's senior
citizens. John O'Flynn was personally involved and supported the development of the Home Delivered Meals
program. When the Town of Fountain Hills acquired Senior Services programs as a new division, John
O'Flynn was appointed Chair of the Senior Services Advisory Commission and for several years continued to
provide vision and guidance to the senior programs until his passing in 2008. In recognition of the exceptional
community service that John O'Flynn provided to the Town and its residents it is appropriate and consistent
with the Town's Naming Policy to rename the Senior Services Activity Center as "The John O'Flynn Senior
Activity Center".
This item is being brought forward as funds to purchase the plaque are in the current budget year and the
necessary two year waiting time period since John O'Flynn's passing under the existing Naming Policy has
been met.
Risk Analysis (options or alternatives with implications):
Fiscal Impact (initial and ongoing costs; budget status): R
Budget Reference (page number): 231
Funding Source: General Fund
If Multiple Funds utilized, list here:
Budgeted; if No, attach Budget Adjustment Form: NA
1490459.2
RESOLUTION NO. 2011-15
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN
HILLS, ARIZONA, NAMING THE SENIOR SERVICES ACTIVITY CENTER “THE
JOHN O’FLYNN SENIOR ACTIVITY CENTER” IN RECOGNITION FOR HIS
MANY YEARS OF DEVOTED AND UNWAVERING SERVICE TO THE SENIOR
RESIDENTS OF THE TOWN OF FOUNTAIN HILLS.
WHEREAS, John O’Flynn was a resident of the Town of Fountain Hills from 1984 to
2008, and worked throughout that period toward establishing programs that would benefit the
community’s senior citizens; and
WHEREAS, John was personally, spiritually and physically involved with and supported
the development of the Home Delivered Meals program; and
WHEREAS, John served as the embodiment of the spirit of Senior Services, Inc. and
wished one day to have a stand-alone senior center for all to enjoy; and
WHEREAS, when the Town of Fountain Hills acquired Senior Services programs as a
new division, John O’Flynn was appointed Chair of the Senior Services Advisory Commission
and for several years provided vision and guidance to the senior programs; and
WHEREAS, the Mayor and Council for the Town of Fountain Hills (the “Town
Council”) have determined that in recognition of the exceptional community service that John
O’Flynn provided to the Town and its residents, it is appropriate and consistent with the Town’s
Policy and Procedures for Civic Naming of Streets, Buildings, Structures and Recreational
Facilities that the Senior Services Activity Center be named and known as “The John O’Flynn
Senior Activity Center.”
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows:
SECTION 1. The recitals above are hereby incorporated as if fully set forth herein.
SECTION 2. Pursuant to the Town of Fountain Hills Policy and Procedures for Civic
Naming of Streets, Buildings, Structures and Recreational Facilities, the Senior Services Activity
Center shall hereafter be named and known as “The John O’Flynn Senior Activity Center.”
SECTION 3. The Town Manger is herby authorized to take any necessary action in
furtherance of this Resolution to place an appropriate plaque or sign at the entrance to the Senior
Services Activity Center indicating that such area is named and know as “The John O’Flynn
Senior Activity Center.”
[SIGNATURES ON FOLLOWING PAGE]
1490459.2 2
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, May 5, 2011.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney
1424919.2
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ECI CONTROL SYSTEMS ARIZONA, INC.
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made as of
May 5, 2011, between the Town of Fountain Hills, an Arizona municipal corporation (the
“Town”) and ECI Control Systems Arizona, Inc., an Arizona corporation (the “Consultant”).
RECITALS
A. Pursuant to Section 3-3-9 of the Town Code, the Town has determined that the
professional and technical services related to replacing certain control systems for HVAC
systems in the various buildings in the Town’s Civic Center can only be performed by
Consultant.
B. The Consultant possesses the unique proprietary information, specific skill and
experience required to replace the supervisory control system for HVAC systems at the Town
Hall, Community Center and Library/Museum (the “Services”).
C. The Town desires to enter into this Agreement with the Consultant to perform the
Services as set forth herein.
D. The Services procured pursuant to this Agreement are purchased with Energy
Efficiency and Conservation Block Grant (“EECBG”) Program funds under the American
Recovery and Reinvestment Act of 2009 from the United States Government (Pub.L. 111-5).
All applicable federal rules and regulations are incorporated by reference herein notwithstanding
the fact that they may not be specifically referenced in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, the following mutual covenants and conditions, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and the
Consultant hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set
forth above and shall remain in full force and effect until November 1, 2011, unless terminated
earlier as otherwise provided herein.
2. Scope of Work. Consultant shall provide the Services as set forth in the Scope of
Work, attached hereto as Exhibit A and incorporated herein by reference.
3. Compensation. The Town shall pay Consultant an amount not to exceed
$84,881.91 for the Services as set forth in the Fee Proposal, attached hereto as portion of
Exhibit A.
1424919.2
2
4. Assurances. To the extent applicable, Consultant and its subcontractors warrant
compliance with the flow down requirements for subrecipients specified in the “Special
Provisions Relating to Work Funded under American Recovery and Reinvestment Act of 2009”,
which apply to all EECBG awards. Additionally, as required by 10 CFR 600.2(b), 10 CFR
600.236, and 10 CFR 600.237, Consultant shall comply with any applicable federal statute,
federal rule, Office of Management and Budget (OMB) Circular and Government-wide guidance
in effect as of the date of such award. Consultant shall execute and submit certification of its
compliance in the form set forth on Exhibit B, Assurances - Construction Programs, attached
hereto and incorporated herein by reference. Consultant’s or its subcontractor’s failure to
comply with such warranty shall be deemed a material breach of the Agreement and may result
in the termination of the Agreement by the Town.
5. EECBG Requirements. The Consultant agrees to comply with all applicable
federal rules and regulations which apply to projects funded with EECBG funds, including
specifically the flow down requirements for subrecipients specified in the EECBG Special Terms
and Conditions attached hereto as Exhibit C and incorporated herein by reference. For greater
clarity, to the extent that there exists any inconsistency, conflict or ambiguity among the EECBG
Special Terms and Conditions attached hereto as Exhibit C, and the terms of this Agreement, the
documents shall govern in the order listed herein.
6. Prevailing Wages. The Consultant acknowledges that the Services shall be
provided at the prevailing wages determined for Maricopa County, Arizona for all jobs required
to perform the Services, as set forth in Wage Determination General Decision No. AZ100001,
dated February 4, 2011 attached hereto as Exhibit D and incorporated herein by reference. If the
Services require a particular job or specialty for which no wage has been determined and set
forth in the Wage Determination, attached hereto as Exhibit D, then the Town or the Consultant,
as determined by the Town in its sole discretion, shall contact the Arizona Department of
Commerce, EECBG Grant Administration Office to request that a specific wage be determined.
7. Buy America. The Consultant agrees to comply with Section 1605 of American
Recovery and Reinvestment Act of 2009 which provides that federal funds may not be obligated
unless steel, iron, and manufactured products used in federally-funded projects are produced in
the United States, unless a waiver has been granted by DOE or the product is subject to a general
waiver. The Consultant must submit to the Town the Buy America Certification attached hereto
as Exhibit E and incorporated herein by reference.
8. Payments. The Town shall pay the Consultant monthly, based upon work
performed and completed to date, and upon submission and approval of invoices. All invoices
shall document and itemize all work completed to date. The invoice statement shall include a
record of time expended and work performed in sufficient detail to justify payment.
9. Ownership of Documents. All documents prepared and submitted to the Town by
the Consultant pursuant to this Agreement shall be the property of the Town.
10. Inspection; Acceptance. All work shall be subject to inspection and acceptance
by the Town at reasonable times during Consultant’s performance. The Consultant shall provide
and maintain a self-inspection system that is acceptable to the Town.
1424919.2
3
11. Licenses; Materials. Consultant shall maintain in current status all federal, state
and local licenses and permits required for the operation of the business conducted by the
Consultant. The Town has no obligation to provide Consultant, its employees or subcontractors
any business registrations or licenses required to perform the specific services set forth in this
Agreement. The Town has no obligation to provide tools, equipment or material to Consultant.
12. Performance Warranty. Consultant warrants that the Services rendered will
conform to the requirements of this Agreement and to the highest professional standards in the
field.
13. Indemnification. To the fullest extent permitted by law, the Consultant shall
indemnify, defend and hold harmless the Town and each council member, officer, employee or
agent thereof (the Town and any such person being herein called an “Indemnified Party”), for,
from and against any and all losses, claims, damages, liabilities, costs and expenses (including,
but not limited to, reasonable attorneys’ fees, court costs and the costs of appellate proceedings)
to which any such Indemnified Party may become subject, under any theory of liability
whatsoever (“Claims”), insofar as such Claims (or actions in respect thereof) relate to, arise out
of, or are caused by or based upon the negligent acts, intentional misconduct, errors, mistakes or
omissions, in connection with the work or services of the Consultant, its officers, employees,
agents, or any tier of subcontractor in the performance of this Agreement. The amount and type
of insurance coverage requirements set forth below will in no way be construed as limiting the
scope of the indemnity in this Section.
14. Insurance.
14.1 General.
A. Insurer Qualifications. Without limiting any obligations or
liabilities of Consultant, Consultant shall purchase and maintain, at its own expense, hereinafter
stipulated minimum insurance with insurance companies authorized to do business in the State of
Arizona pursuant to ARIZ. REV. STAT. § 20-206, as amended, with an AM Best, Inc. rating of A-
or above with policies and forms satisfactory to the Town. Failure to maintain insurance as
specified herein may result in termination of this Agreement at the Town’s option.
B. No Representation of Coverage Adequacy. By requiring insurance
herein, the Town does not represent that coverage and limits will be adequate to protect
Consultant. The Town reserves the right to review any and all of the insurance policies and/or
endorsements cited in this Agreement but has no obligation to do so. Failure to demand such
evidence of full compliance with the insurance requirements set forth in this Agreement or
failure to identify any insurance deficiency shall not relieve Consultant from, nor be construed or
deemed a waiver of, its obligation to maintain the required insurance at all times during the
performance of this Agreement.
C. Additional Insured. All insurance coverage and self-insured
retention or deductible portions, except Workers’ Compensation insurance and Professional
Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims
arising out of the performance of this Agreement, the Town, its agents, representatives, officers,
1424919.2
4
directors, officials and employees as Additional Insured as specified under the respective
coverage sections of this Agreement.
D. Coverage Term. All insurance required herein shall be maintained
in full force and effect until all work or services required to be performed under the terms of this
Agreement are satisfactorily performed, completed and formally accepted by the Town, unless
specified otherwise in this Agreement.
E. Primary Insurance. Consultant’s insurance shall be primary
insurance with respect to performance of this Agreement and in the protection of the Town as an
Additional Insured.
F. Waiver. All policies, except for Professional Liability, including
Workers’ Compensation insurance, shall contain a waiver of rights of recovery (subrogation)
against the Town, its agents, representatives, officials, officers and employees for any claims
arising out of the work or services of Consultant. Consultant shall arrange to have such
subrogation waivers incorporated into each policy via formal written endorsement thereto.
G. Policy Deductibles and/or Self-Insured Retentions. The policies
set forth in these requirements may provide coverage that contains deductibles or self-insured
retention amounts. Such deductibles or self-insured retention shall not be applicable with respect
to the policy limits provided to the Town. Consultant shall be solely responsible for any such
deductible or self-insured retention amount.
H. Use of Subcontractors. If any work under this Agreement is
subcontracted in any way, Consultant shall execute written agreements with its subcontractors
containing the indemnification provisions set forth in this Section and insurance requirements set
forth herein protecting the Town and Consultant. Consultant shall be responsible for executing
any agreements with its subcontractors and obtaining certificates of insurance verifying the
insurance requirements.
I. Evidence of Insurance. Prior to commencing any work or services
under this Agreement, Consultant will provide the Town with suitable evidence of insurance in
the form of certificates of insurance and a copy of the declaration page(s) of the insurance
policies as required by this Agreement, issued by Consultant’s insurance insurer(s) as evidence
that policies are placed with acceptable insurers as specified herein and provide the required
coverages, conditions and limits of coverage specified in this Agreement and that such coverage
and provisions are in full force and effect. Confidential information such as the policy premium
may be redacted from the declaration page(s) of each insurance policy, provided that such
redactions do not alter any of the information required by this Agreement. The Town shall
reasonably rely upon the certificates of insurance and declaration page(s) of the insurance
policies as evidence of coverage but such acceptance and reliance shall not waive or alter in any
way the insurance requirements or obligations of this Agreement. In the event any insurance
policy required by this Agreement is written on a “claims made” basis, coverage shall extend for
two years past completion of the Services and the Town’s acceptance of the Consultant’s work
or services and as evidenced by annual certificates of insurance. If any of the policies required
by this Agreement expire during the life of this Agreement, it shall be Consultant’s responsibility
to forward renewal certificates and declaration page(s) to the Town 30 days prior to the
1424919.2
5
expiration date. All certificates of insurance and declarations required by this Agreement shall
be identified by referencing this Agreement. A $25.00 administrative fee shall be assessed for
all certificates or declarations received without the appropriate reference to this Agreement, as
applicable. Additionally, certificates of insurance and declaration page(s) of the insurance
policies submitted without referencing this Agreement, as applicable, will be subject to rejection
and may be returned or discarded. Certificates of insurance and declaration page(s) shall
specifically include the following provisions:
(1) The Town, its agents, representatives, officers, directors,
officials and employees are Additional Insureds as follows:
(a) Commercial General Liability – Under Insurance
Services Office, Inc., (“ISO”) Form CG 20 10 03 97 or equivalent.
(b) Auto Liability – Under ISO Form CA 20 48 or
equivalent.
(c) Excess Liability – Follow Form to underlying
insurance.
(2) Consultant’s insurance shall be primary insurance as
respects performance of the Agreement.
(3) All policies, except for Professional Liability, including
Workers’ Compensation, waive rights of recovery (subrogation) against Town, its agents,
representatives, officers, officials and employees for any claims arising out of work or
services performed by Consultant under this Agreement.
(4) A 30-day advance notice cancellation provision. If
ACORD certificate of insurance form is used, the phrases in the cancellation provision
“endeavor to” and “but failure to mail such notice shall impose no obligation or liability
of any kind upon the company, its agents or representatives” shall be deleted. Certificate
forms other than ACORD form shall have similar restrictive language deleted.
14.2 Required Insurance Coverage.
A. Commercial General Liability. Consultant shall maintain
“occurrence” form Commercial General Liability insurance with an unimpaired limit of not less
than $1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual
Aggregate and a $2,000,000 General Aggregate Limit. The policy shall cover liability arising
from premises, operations, independent contractors, products-completed operations, personal
injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy
form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured’s
clause. To the fullest extent allowed by law, for claims arising out of the performance of this
Agreement, the Town, its agents, representatives, officers, officials and employees shall be cited
as an Additional Insured under ISO, Commercial General Liability Additional Insured
Endorsement form CG 20 10 03 97, or equivalent, which shall read “Who is an Insured (Section
II) is amended to include as an insured the person or organization shown in the Schedule, but
1424919.2
6
only with respect to liability arising out of “your work” for that insured by or for you.” If any
Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance
shall be “follow form” equal or broader in coverage scope than underlying insurance.
B. Vehicle Liability. Consultant shall maintain Business Automobile
Liability insurance with a limit of $1,000,000 each occurrence on Consultant’s owned, hired and
non-owned vehicles assigned to or used in the performance of the Consultant’s work or services
under this Agreement. Coverage will be at least as broad as ISO coverage code “1” “any auto”
policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for
claims arising out of the performance of this Agreement, the Town, its agents, representatives,
officers, directors, officials and employees shall be cited as an Additional Insured under ISO
Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any
Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance
shall be “follow form” equal or broader in coverage scope than underlying insurance.
C. Professional Liability. If this Agreement is the subject of any
professional services or work, or if the Consultant engages in any professional services or work
adjunct or residual to performing the work under this Agreement, the Consultant shall maintain
Professional Liability insurance covering negligent errors and omissions arising out of the
Services performed by the Consultant, or anyone employed by the Consultant, or anyone for
whose negligent acts, mistakes, errors and omissions the Consultant is legally liable, with an
unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate.
In the event the Professional Liability insurance policy is written on a “claims made” basis,
coverage shall extend for two years past completion and acceptance of the Services, and the
Consultant shall be required to submit certificates of insurance and a copy of the declaration
page(s) of the insurance policies evidencing proper coverage is in effect as required above.
D. Workers’ Compensation Insurance. Consultant shall maintain
Workers’ Compensation insurance to cover obligations imposed by federal and state statutes
having jurisdiction over Consultant’s employees engaged in the performance of work or services
under this Agreement and shall also maintain Employers Liability Insurance of not less than
$500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy
limit.
14.3 Cancellation and Expiration Notice. Insurance required herein shall not
expire, be canceled, or materially change without 30 days’ prior written notice to the Town.
15. Applicable Law; Venue. This Agreement shall be governed by the laws of the
State of Arizona and suit pertaining to this Agreement may be brought only in courts in the State
of Arizona.
16. Termination; Cancellation.
16.1 For Town’s Convenience. This Agreement is for the convenience of the
Town and, as such, may be terminated without cause after receipt by Consultant of written notice
by the Town. Upon termination for convenience, Consultant shall be paid for all undisputed
services performed to the termination date.
1424919.2
7
16.2 For Cause. This Agreement may be terminated by either party upon 30
days’ written notice should the other party fail to substantially perform in accordance with this
Agreement’s terms, through no fault of the party initiating the termination. In the event of such
termination for cause, payment shall be made by the Town to the Consultant for the undisputed
portion of its fee due as of the termination date.
16.3 Due to Work Stoppage. This Agreement may be terminated by the Town
upon 30 days’ written notice to Consultant in the event that the Services are permanently
abandoned. In the event of such termination due to work stoppage, payment shall be made by
the Town to the Consultant for the undisputed portion of its fee due as of the termination date.
16.4 Conflict of Interest. This Agreement is subject to the provisions of ARIZ.
REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further
obligations by the Town or any of its departments or agencies if any person significantly
involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the
Town or any of its departments or agencies is, at any time while the Agreement or any extension
of the Agreement is in effect, an employee of any other party to the Agreement in any capacity
or a Consultant to any other party of the Agreement with respect to the subject matter of the
Agreement.
16.5 Gratuities. The Town may, by written notice to the Consultant, cancel this
Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future
employment, entertainment, gifts or otherwise, were offered or given by the Consultant or any
agent or representative of the Consultant to any officer, agent or employee of the Town for the
purpose of securing this Agreement. In the event this Agreement is cancelled by the Town
pursuant to this provision, the Town shall be entitled, in addition to any other rights and
remedies, to recover or withhold from the Consultant an amount equal to 150% of the gratuity.
16.6 Agreement Subject to Appropriation. The provisions of this Agreement
for payment of funds by the Town shall be effective when funds are appropriated for purposes of
this Agreement and are actually available for payment. The Town shall be the sole judge and
authority in determining the availability of funds under this Agreement and the Town shall keep
the Consultant fully informed as to the availability of funds for the Agreement. The obligation
of the Town to make any payment pursuant to this Agreement is a current expense of the Town,
payable exclusively from such annual appropriations, and is not a general obligation or
indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the
amounts as set forth in this Agreement during any immediately succeeding fiscal year, this
Agreement shall terminate at the end of then-current fiscal year and the Town and the Consultant
shall be relieved of any subsequent obligation under this Agreement.
17. Miscellaneous.
17.1 Independent Contractor. The Consultant acknowledges and agrees that the
Services provided under this Agreement are being provided as an independent contractor, not as
an employee or agent of the Town. Consultant, its employees and subcontractors are not entitled
to workers’ compensation benefits from the Town. The Town does not have the authority to
supervise or control the actual work of Consultant, its employees or subcontractors. The
Consultant, and not the Town, shall determine the time of its performance of the services
1424919.2
8
provided under this Agreement so long as Consultant meets the requirements of its agreed scope
of work as set forth in Section 2 above. Consultant is neither prohibited from entering into other
contracts nor prohibited from practicing its profession elsewhere. Town and Consultant do not
intend to nor will they combine business operations under this Agreement.
17.2 Laws and Regulations. The Consultant shall keep fully informed and shall
at all times during the performance of its duties under this Agreement ensure that it and any
person for whom the Consultant is responsible remains in compliance with all rules, regulations,
ordinances, statutes or laws affecting the Services, including the following: (A) existing and
future Town and County ordinances and regulations, (B) existing and future state and federal
laws and (C) existing and future Occupational Safety and Health Administration (“OSHA”)
standards.
17.3 Amendments. This Agreement may be modified only by a written
amendment signed by persons duly authorized to enter into contracts on behalf of the Town and
the Consultant.
17.4 Provisions Required by Law. Each and every provision of law and any
clause required by law to be in the Agreement will be read and enforced as though it were
included herein and, if through mistake or otherwise any such provision is not inserted, or is not
correctly inserted, then upon the application of either party, the Agreement will promptly be
physically amended to make such insertion or correction.
17.5 Severability. The provisions of this Agreement are severable to the extent
that any provision or application held to be invalid by a Court of competent jurisdiction shall not
affect any other provision or application of the Agreement which may remain in effect without
the invalid provision or application.
17.6 Relationship of the Parties. It is clearly understood that each party will act
in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of
the other. An employee or agent of one party shall not be deemed or construed to be the
employee or agent of the other for any purpose whatsoever. The Consultant is advised that taxes
or Social Security payments will not be withheld from any Town payments issued hereunder and
Consultant agrees to be fully and solely responsible for the payment of such taxes or any other
tax applicable to this Agreement.
17.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement
represents the entire agreement of the parties with respect to its subject matter, and all previous
agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and
superseded by this Agreement. No representations, warranties, inducements or oral agreements
have been made by any of the parties except as expressly set forth herein, or in any other
contemporaneous written agreement executed for the purposes of carrying out the provisions of
this Agreement. This Agreement shall be construed and interpreted according to its plain
meaning, and no presumption shall be deemed to apply in favor of, or against the party drafting
the Agreement. The parties acknowledge and agree that each has had the opportunity to seek
and utilize legal counsel in the drafting of, review of, and entry into this Agreement.
1424919.2
9
17.8 Assignment. No right or interest in this Agreement shall be assigned by
Consultant without prior, written permission of the Town signed by the Town Manager and no
delegation of any duty of Consultant shall be made without prior, written permission of the Town
signed by the Town Manager. Any attempted assignment or delegation by Consultant in
violation of this provision shall be a breach of this Agreement by Consultant.
17.9 Subcontracts. No subcontract shall be entered into by the Consultant with
any other party to furnish any of the material or services specified herein without the prior
written approval of the Town. The Consultant is responsible for performance under this
Agreement whether or not subcontractors are used.
17.10 Rights and Remedies. No provision in this Agreement shall be construed,
expressly or by implication, as waiver by the Town of any existing or future right and/or remedy
available by law in the event of any claim of default or breach of this Agreement. The failure of
the Town to insist upon the strict performance of any term or condition of this Agreement or to
exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or
the Town’s acceptance of and payment for services, shall not release the Consultant from any
responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a
waiver of any right of the Town to insist upon the strict performance of this Agreement.
17.11 Attorneys’ Fees. In the event either party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement or on account of any breach or default
hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’
fees and reasonable costs and expenses, determined by the court sitting without a jury, which
shall be deemed to have accrued on the commencement of such action and shall be enforced
whether or not such action is prosecuted through judgment.
17.12 Liens. All materials or services shall be free of all liens and, if the Town
requests, a formal release of all liens shall be delivered to the Town.
17.13 Offset.
A. Offset for Damages. In addition to all other remedies at law or
equity, the Town may offset from any money due to the Consultant any amounts Consultant
owes to the Town for damages resulting from breach or deficiencies in performance or breach of
any obligation under this Agreement.
B. Offset for Delinquent Fees or Taxes. The Town may offset from
any money due to the Consultant any amounts Consultant owes to the Town for delinquent fees,
transaction privilege taxes and property taxes, including any interest or penalties.
17.14 Notices and Requests. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and shall be deemed to have been
duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below, (C) given to
a recognized and reputable overnight delivery service, to the address set forth below or (D)
delivered by facsimile transmission to the number set forth below:
1424919.2
10
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Facsimile: (480) 837-3145
Attn: Richard L. Davis, Town Manager
With copy to: GUST ROSENFELD, P.L.C.
One East Washington Street, Suite 1600
Phoenix, Arizona 85004-2553
Facsimile: (602) 254-4878
Attn: Andrew J. McGuire, Esq.
If to Consultant: ECI Control Systems Arizona, Inc.
415 South McClintock Drive, Suite 1
Tempe, Arizona 85281
Facsimile: (480) 894-9850
Attn: Mike Carter
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the party, (B) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage, (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day, or
(D) when received by facsimile transmission during the normal business hours of the recipient.
If a copy of a notice is also given to a party’s counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
17.15 Confidentiality of Records. The Consultant shall establish and maintain
procedures and controls that are acceptable to the Town for the purpose of ensuring that
information contained in its records or obtained from the Town or from others in carrying out its
obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or
employees, except as required to perform Consultant’s duties under this Agreement. Persons
requesting such information should be referred to the Town. Consultant also agrees that any
information pertaining to individual persons shall not be divulged other than to employees or
officers of Consultant as needed for the performance of duties under this Agreement.
17.16 Records and Audit Rights. Consultant’s and its subcontractor’s books,
records, correspondence, accounting procedures and practices, and any other supporting
evidence relating to this Agreement, including the papers of any Consultant and its
subcontractors’ employees who perform any work or Services pursuant to this Agreement to
ensure that the Consultant and its subcontractors are complying with the warranty under
subsection 17.17 below (all the foregoing hereinafter referred to as “Records”), shall be open to
inspection and subject to audit and/or reproduction during normal working hours by the Town, to
the extent necessary to adequately permit (A) evaluation and verification of any invoices,
payments or claims based on Consultant’s and its subcontractors’ actual costs (including direct
1424919.2
11
and indirect costs and overhead allocations) incurred, or units expended directly in the
performance of work under this Agreement and (B) evaluation of the Consultant’s and its
subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection
17.17 below. To the extent necessary for the Town to audit Records as set forth in this
subsection, Consultant and its subcontractors hereby waive any rights to keep such Records
confidential. For the purpose of evaluating or verifying such actual or claimed costs or units
expended, the Town shall have access to said Records, even if located at its subcontractors’
facilities, from the effective date of this Agreement for the duration of the work and until three
years after the date of final payment by the Town to Consultant pursuant to this Agreement.
Consultant and its subcontractors shall provide the Town with adequate and appropriate
workspace so that the Town can conduct audits in compliance with the provisions of this
subsection. The Town shall give Consultant or its subcontractors reasonable advance notice of
intended audits. Consultant shall require its subcontractors to comply with the provisions of this
subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
17.17 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT.
§ 41-4401, the Consultant and its subcontractors warrant compliance with all federal
immigration laws and regulations that relate to their employees and compliance with the E-verify
requirements under ARIZ. REV. STAT. § 23-214(A). Consultant’s or its subcontractor’s failure to
comply with such warranty shall be deemed a material breach of this Agreement and may result
in the termination of this Agreement by the Town.
17.18 Scrutinized Business Operations. Pursuant to ARIZ. REV. STAT. §§ 35-
391.06 and 35-393.06, the Consultant certifies that it does not have a scrutinized business
operation in Sudan or Iran. For the purpose of this subsection the term “scrutinized business
operations” shall have the meanings set forth in ARIZ. REV. STAT. § 35-391 or 35-393, as
applicable. If the Town determines that the Consultant submitted a false certification, the Town
may impose remedies as provided by law including terminating this Agreement.
17.19 Conflicting Terms. In the event of any inconsistency, conflict or
ambiguity among the EECBG Special Terms and Conditions, the Agreement, the Scope of
Work, the Fee Proposal, the Assurances – Construction Programs and the Wage Determination,
the documents shall govern in the order listed herein.
17.20 Non-Exclusive Contract. This Agreement is entered into with the
understanding and agreement that it is for the sole convenience of the Town. The Town reserves
the right to obtain like goods and services from another source when necessary.
[SIGNATURES ON FOLLOWING PAGE]
1424919.2
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ECI CONTROL SYSTEMS ARIZONA, INC.
[Scope of Work and Fees]
See following page.
415 S. McClintock Dr., Suite 1 Tempe, AZ 85281 (480) 894 -9490 (480) 894-9850 Fax
ecienergycontrols.com
An Independent Provider of Building Technology
Systems and Integration Solutions
License No. 101361
QUOTATION
10-0369 Rev.4
DATE: March 23, 2011
TO: City of Fountain Hills
ATTN: Raymond Rees
PROJECT: City of Fountain Hills Energy Project
We are pleased to provide a proposal to replace the existing Johnson Controls N30
supervisory control system with a Johnson Controls Tridium supervisory control system
on the above named project. Our scope includes the following:
This proposal is based on an energy audit performed by Bruce L. Neitzke, P.E. on
September 1st 2010 for the Town of Fountain Hills.
Our scope of work includes the following:
Base Bid: Town Hall (T/H) Building-
TRIDIUM SOFT JACE SERVER to include the following:
Install Johnson Controls Tridium SOFT JACE 3.0 server software
Connect (5) IP based FX-60 JACE supervisory controllers
Schedules for AHU,VAV,FCU,DH,EF, and central plant equipment
Trends for AHU,VAV,FCU,DH,EF, and central plant equipment
Totalization for AHU,VAV,FCU,DH,EF, and central plant equipment
Alarms for AHU,VAV,FCU,DH,EF, and central plant equipment
Graphics for AHU,VAV,FCU,DH,EF, and central plant equipment
ELSTER A3 ALPHA Electric power meter monitoring to include the following:
Install FX-60 JACE controller for electrical power monitoring
Install (2) wireless pulse transceivers from the Elster power meter to the FX-60
JACE located in the Town Hall building
Program data points from Elster power meter into FX-60 JACE
(12) VAV terminal unit with electrical heat strips including the following:
(C/U-1, C/U-2, C/U-3, C/U-4, C/U-5) (TU-A, TU-B, TU-C, TU-D, TU-E, TU-F, TU-G)
Program software in (12) Kruger VAV box controllers to lower energy usage with
electric heat strips
Program separate occupancy schedules for (12) Kruger VAV box controllers to
lower energy usage when occupied space is vacant
Program software for (12) Johnson Controls wall mounted temperature sensors
so that the set point adjustment is +/- 1 degree to lower energy usage
Page 2 of 5
(2) Rooftop Air Handlers: (AHU-1, AHU-2)
Program economizer software for (2) McQuay roof top air handling units so that
each unit can provide outdoor air cooling when the temperature outside is below
55 degrees to lower energy usage
Program discharge air reset software for (2) McQuay roof top air handling units
so that each unit raises the discharge air temperature during cooler outside air
conditions to lower energy usage
Program separate occupancy schedules for (2) McQuay roof top air handling
units to lower energy usage when occupied space is vacant
Base Bid: Community Center (CC) Building-
ELSTER A3 ALPHA Electric power meter monitoring to include the following:
Install FX-60 JACE controller for electrical power monitoring
Install (2) wireless pulse transceivers from the Elster power meter to the FX-60
JACE located in the Community Center building
Program data points from Elster power meter into FX-60 JACE
FX-60 JACE to include the following:
Install FX-60 JACE controller for HVAC system
Connect existing N2 communication backbone to FX-60 JACE
Program (8) air handling units into FX-60 JACE
Program (12) fan coil units into FX-60 JACE
Program (12) electric duct heaters into FX-60 JACE
(8) Rooftop Air Handlers: (AH-1, AH-2, AH-3, AH-4, AH-5, AH-6, AH-7, AH-8)
Program economizer software for (8) Trane roof top air handling units so that
each unit can provide outdoor air cooling when the temperature outside is below
55 degrees to lower energy usage
Program discharge air reset software for (8) Trane roof top air handling units so
that each unit raises the discharge air temperature during cooler outside air
conditions to lower energy usage
Program separate occupancy schedules for (8) Trane roof top air handling units
to lower energy usage when occupied space is vacant
(12) Fan Coil Units:
(FC-1, FC-2, FC-3, FC-4, FC-5, FC-6, FC-7, FC-8, FC-9, FC-10, FC-11, FC-12 )
Program discharge air reset software for (12) Trane fan coil units so that each
unit raises the discharge air temperature during cooler outside air conditions to
lower energy usage
Program separate occupancy schedules for (12) Trane fan coil units to lower
energy usage when occupied space is vacant
(12) Electric Duct Heaters:
(DH-1, DH-2, DH-3, DH-4, DH-5, DH-6, DH-7, DH-8, DH-9, DH-10, DH-11, DH-12 )
Program software for (12) Brash electric duct heaters so that each duct heater
shuts off after morning warm up during cold outside conditions to lower energy
usage
Page 3 of 5
Program separate occupancy schedules for (12) Brash electric duct heaters to
lower energy usage when occupied space is vacant
Base Bid: Library/Museum (LIB) Building
FX-60 JACE to include the following:
Install FX-60 JACE controller for HVAC system
Connect existing N2 communication backbone to FX-60 JACE
Program (4) air handling units into FX-60 JACE
Program (10) fan coil units into FX-60 JACE
(4) Rooftop Air Handlers: (AH-9, AH-10, AH-11, AH-12)
Program economizer software for (4) Trane roof top air handling units so that
each unit can provide outdoor air cooling when the temperature outside is below
55 degrees to lower energy usage
Program discharge air reset software for (4) Trane roof top air handling units so
that each unit raises the discharge air temperature during cooler outside air
conditions to lower energy usage
Program separate occupancy schedules for (4) Trane roof top air handling units
to lower energy usage when occupied space is vacant
(10) Fan Coil Units:
(FC-13, FC-14, FC-15, FC-16, FC-17, FC-18, FC-19, FC-20, FC-21, FC-22)
Program discharge air reset software for (10) Trane fan coil units so that each
unit raises the discharge air temperature during cooler outside air conditions to
lower energy usage
Program separate occupancy schedules for (10) Trane fan coil units to lower
energy usage when occupied space is vacant
Base Bid: Physical Plant (P/P) Building
Central Plant:
Provide a new outside air and humidity sensor on the northwest side of the
central plant building that will be used globally in all of the buildings for software
process control.
Heat Exchanger: (HX-1)
With a new outside air dry bulb and humidity sensor in place an accurate outside
air wet bulb temperature can be established to optimize the heat exchanger to
provide additional energy savings.
Typical for all Buildings:
Installation:
All necessary conduit, wiring and labor for a completely operational system
Plenum cable not in conduit will be used in concealed accessible areas such as
above lay in ceilings and in open areas above 10’
EMT Conduit will be used in mechanical rooms
EMT conduit stubs with a wall box will be provided for each wall sensor
Page 4 of 5
Engineering:
Engineered application control drawings and control equipment submittals
Point to point system start up with documentation
System programming
System graphics
Customer training
Global:
Johnson Controls Tridium server software
Clarifications:
The city of Fountain Hills IT department will provide a PC or server for the
Johnson Controls Tridium server software.
The city of Fountain Hills IT department will provide (6) new static IP address for
the Johnson Controls Tridium JACE’S.
The city of Fountain Hills will provide line voltage wiring to provide controller
power (ECI will provide a 24VAC transformer for each FX-60 JACE cabinet)
If any existing mechanical or HVAC control equipment is found inoperable ECI
will repair this equipment on a time and material basis.
Exclusions:
Line voltage wiring, motor starters and contactors
Duct smoke detectors and associated mounting, power, local a/c system fan
shutdown interlock wiring, and wiring related to remote reset and alarm indication
devices.
Fire, smoke, and combination fire/smoke damper/actuator assemblies and
associated mounting, power, actuators, smoke detectors, connection to fire
alarm, and interlock wiring for shutdown of equipment or operation of damper
assemblies.
Line voltage wiring to provide controller power
Air Balance support including hardware and software balance tools
Patching and painting of existing sensor locations
Removal and replacement of existing ceiling
Access doors
Roof penetrations
Overtime labor rates, our proposal is based on normal daytime working hours
Town Hall (T/H) Building- $23,393.00
Community Center Building, Library/Museum, Plant $56,357.00
Tax $5,131.91
Total Price: $84,881.91
Prices are firm for 60 days.
Sincerely,
Mike Carter / Ignacio Gastelum
ECI Energy Controls
An Independent Provider of Building Technology Systems and Integration Solutions
Page 5 of 5
Please Proceed with the above scope of work
Signature:
Name:
Title:
Date:
PO#
Amount:
1424919.2
EXHIBIT B
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ECI CONTROL SYSTEMS ARIZONA, INC.
[Assurances - Construction Programs]
See following page.
OMB Approval No.4040-0009
Expiration Date 07/30/2010
ASSURANCES - CONSTRUCTION PROGRAMS
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT
AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
Public reporting burden for this collection of information is estimated to average 15 minutes per response, including time for reviewing
instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of
information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for
reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0042), Washington, DC 20503.
Certain of these assurances may not be applicable to your project or program. If you have questions, please contact the
Awarding Agency. Further, certain Federal assistance awarding agencies may require applicants to certify to additional
assurances. If such is the case, you will be notified.
As the duly authorized representative of the applicant:, I certify that the applicant:
NOTE:
1.Has the legal authority to apply for Federal assistance,
and the institutional, managerial and financial capability
(including funds sufficient to pay the non-Federal share
of project costs) to ensure proper planning,
management and completion of project described in
this application.
2.Will give the awarding agency, the Comptroller General
of the United States and, if appropriate, the State,
the right to examine all records, books, papers, or
documents related to the assistance; and will establish
a proper accounting system in accordance with
generally accepted accounting standards or agency
directives.
3.Will not dispose of, modify the use of, or change the
terms of the real property title or other interest in the
site and facilities without permission and instructions
from the awarding agency. Will record the Federal
awarding agency directives and will include a covenant
in the title of real property acquired in whole or in part
with Federal assistance funds to assure non-
discrimination during the useful life of the project.
4.Will comply with the requirements of the assistance
awarding agency with regard to the drafting, review and
approval of construction plans and specifications.
5.Will provide and maintain competent and adequate
engineering supervision at the construction site to
ensure that the complete work conforms with the
approved plans and specifications and will furnish
progressive reports and such other information as may be
required by the assistance awarding agency or State.
6.Will initiate and complete the work within the applicable
time frame after receipt of approval of the awarding agency.
7.Will establish safeguards to prohibit employees from
using their positions for a purpose that constitutes or
presents the appearance of personal or organizational
conflict of interest, or personal gain.
8.Will comply with the Intergovernmental Personnel Act
of 1970 (42 U.S.C. §§4728-4763) relating to prescribed
standards of merit systems for programs funded
under one of the 19 statutes or regulations specified in
Appendix A of OPM's Standards for a Merit System of
Personnel Administration (5 C.F.R. 900, Subpart F).
9.Will comply with the Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. §§4801 et seq.) which
prohibits the use of lead-based paint in construction or
rehabilitation of residence structures.
10.Will comply with all Federal statutes relating to non-
discrimination. These include but are not limited to: (a)
Title VI of the Civil Rights Act of 1964 (P.L. 88-352)
which prohibits discrimination on the basis of race,
color or national origin; (b) Title IX of the Education
Amendments of 1972, as amended (20 U.S.C. §§1681
1683, and 1685-1686), which prohibits discrimination
on the basis of sex; (c) Section 504 of the
Rehabilitation Act of 1973, as amended (29) U.S.C.
§794), which prohibits discrimination on the basis of
handicaps; (d) the Age Discrimination Act of 1975, as
amended (42 U.S.C. §§6101-6107), which prohibits
discrimination on the basis of age; (e) the Drug Abuse
Office and Treatment Act of 1972 (P.L. 92-255), as
amended relating to nondiscrimination on the basis of
drug abuse; (f) the Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation
Act of 1970 (P.L. 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or
alcoholism; (g) §§523 and 527 of the Public Health
Service Act of 1912 (42 U.S.C. §§290 dd-3 and 290 ee
3), as amended, relating to confidentiality of alcohol
and drug abuse patient records; (h) Title VIII of the
Civil Rights Act of 1968 (42 U.S.C. §§3601 et seq.), as
amended, relating to nondiscrimination in the sale,
rental or financing of housing; (i) any other
nondiscrimination provisions in the specific statue(s)
under which application for Federal assistance is being
made; and (j) the requirements of any other
nondiscrimination statue(s) which may apply to the
application.
Previous Edition UsableAuthorized for Local Reproduction Standard Form 424D (Rev. 7-97)
Prescribed by OMB Circular A-102
11.Will comply, or has already complied, with the
requirements of Titles II and III of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of
1970 (P.L. 91-646) which provide for fair and equitable
treatment of persons displaced or whose property is
acquired as a result of Federal and federally-assisted
programs. These requirements apply to all interests in real
property acquired for project purposes regardless of
Federal participation in purchases.
12.Will comply with the provisions of the Hatch Act (5 U.S.C.
§§1501-1508 and 7324-7328) which limit the political
activities of employees whose principal employment
activities are funded in whole or in part with Federal funds.
13.Will comply, as applicable, with the provisions of the Davis-
Bacon Act (40 U.S.C. §§276a to 276a-7), the Copeland Act
(40 U.S.C. §276c and 18 U.S.C. §874), and the Contract
Work Hours and Safety Standards Act (40 U.S.C. §§327-
333) regarding labor standards for federally-assisted
construction subagreements.
14.Will comply with flood insurance purchase requirements of
Section 102(a) of the Flood Disaster Protection Act of 1973
(P.L. 93-234) which requires recipients in a special flood
hazard area to participate in the program and to purchase
flood insurance if the total cost of insurable construction
and acquisition is $10,000 or more.
15.Will comply with environmental standards which may be
prescribed pursuant to the following: (a) institution of
environmental quality control measures under the
National Environmental Policy Act of 1969 (P.L. 91-
190) and Executive Order (EO) 11514; (b) notification
of violating facilities pursuant to EO 11738; (c)
protection of wetlands pursuant to EO 11990; (d)
evaluation of flood hazards in floodplains in accordance
with EO 11988; (e) assurance of project consistency
with the approved State management program
developed under the Coastal Zone Management Act of
1972 (16 U.S.C. §§1451 et seq.); (f) conformity of
Federal actions to State (Clean Air) implementation
Plans under Section 176(c) of the Clean Air Act of
1955, as amended (42 U.S.C. §§7401 et seq.); (g)
protection of underground sources of drinking water
under the Safe Drinking Water Act of 1974, as
amended (P.L. 93-523); and, (h) protection of
endangered species under the Endangered Species
Act of 1973, as amended (P.L. 93-205).
16.Will comply with the Wild and Scenic Rivers Act of
1968 (16 U.S.C. §§1271 et seq.) related to protecting
components or potential components of the national
wild and scenic rivers system.
17.Will assist the awarding agency in assuring compliance
with Section 106 of the National Historic Preservation
Act of 1966, as amended (16 U.S.C. §470), EO 11593
(identification and protection of historic properties), and
the Archaeological and Historic Preservation Act of
1974 (16 U.S.C. §§469a-1 et seq).
18.Will cause to be performed the required financial and
compliance audits in accordance with the Single Audit
Act Amendments of 1996 and OMB Circular No. A-133,
"Audits of States, Local Governments, and Non-Profit
Organizations."
19.Will comply with all applicable requirements of all other
Federal laws, executive orders, regulations, and policies
governing this program.
* SIGNATURE OF AUTHORIZED CERTIFYING OFFICIAL * TITLE
SF-424D (Rev. 7-97) Back
* APPLICANT ORGANIZATION * DATE SUBMITTED
Completed on submission to Grants.gov
1424919.2
EXHIBIT C
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ECI CONTROL SYSTEMS ARIZONA, INC.
[EECBG Special Terms and Conditions]
See following page.
1
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION
BLOCK GRANT PROGRAM (EECBG) – FORMULA GRANTS
DOE grantees must consider both (1) procurement requirements and (2) flow down requirements set out in
the DOE Financial Assistance Regulations when using subcontractors/subrecipients to support the DOE grant
activity.
(1) Financial Assistance Requirements for Procurements used by EECBG Grantees
The requirements for procurements used by grantees are laid out in the Department of Energy financial assistance
regulations found at 10 CFR Part 600. The regulations are organized into subparts by category of recipient. For
nonprofits, the procurement standards are at 600.140-149; for State and local governments, including federally
recognized Indian tribes, the procurement standards are at 600.236; for for-profits, the procurement standards are at
600.330-331. These regulations require DOE grantees to consider the following in development of solicitations for
obtaining products or services in support of the DOE grant activity. See 10 CFR Part 600 for more details.
• Procurement standards
o Follow DOE requirements in addition to grantee, local and State requirements
o Maintain written standards of conduct, avoiding conflicts of interest
o Maintain documentation related to procurement actions
o Ensure awards are made to responsible contractors
o Type of contract to be used
• Use of competition
• Methods of procurement
• Consideration of small and minority firms
• Contract cost and price analyses
• Awarding agency (DOE) review
• Bonding requirements
• Contract provisions to include remedy and termination language, mandatory Federal regulations and
executive orders, and the other flow down requirements below.
(2) Flow down Requirements for Subrecipients
DOE grantees are responsible for ensuring that the subrecipients follow all flow down requirements.
When subcontracting is used, certain requirements must flow down to the subcontractor level.
The Department of Energy regulations are codified at 10 CFR Part 600. In addition, since the Energy Efficiency and
Conservation Block Grants are funded by the American Recovery and Reinvestment Act (Recovery Act), there are
additional Recovery Act requirements and restrictions which must be followed.
The following pages set forth flow down provisions for use in issuing subcontracts. The requirements are mandatory
as written unless noted that the provision should be tailored to the specific situation.
2
Energy Efficiency and Conservation Block Grant
Subcontract Flow down Requirements
Table of Contents
1. RESOLUTION OF CONFLICTING CONDITIONS.....................................................................................4
2. AWARD AGREEMENT TERMS AND CONDITIONS...............................................................................4
3. REBUDGETING AND RECOVERY OF INDIRECT COSTS.....................................................................4
4. CEILING ON ADMINISTRATIVE COSTS..................................................................................................5
5. LIMITATIONS ON USE OF FUNDS............................................................................................................5
6. USE OF PROGRAM INCOME - ADDITION...............................................................................................5
7. STATEMENT OF FEDERAL STEWARDSHIP...........................................................................................5
8. SITE VISITS...................................................................................................................................................6
9. REPORTING REQUIREMENTS...................................................................................................................6
10. PUBLICATIONS............................................................................................................................................6
11. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS.......................................................................6
12. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION...................................6
13. LOBBYING RESTRICTIONS.......................................................................................................................7
14. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS --
SENSE OF CONGRESS................................................................................................................................6
15. INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP ..............................................................................6
16. WASTE STREAM ........................................................................................................................................7
17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS...........................................7
18. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS.................................................8
19. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAY 2009)............................................................................................8
20. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERY ACT (MAY 2009)..................................................................................................................12
21......REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -- SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009)...........12
22. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED
UNDER INTERNATIONAL AGREEMENTS)--SECTION 1605 OF THE AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009 (MAY 2009) ..............................................................................14
23. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY 2009)..17
24. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL
AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS
(MAY 2009) ...............................................................................................................................................18
25. DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (NOV
2009) ............................................................................................................................................................18
26. HISTORIC PRESERVATION.....................................................................................................................25
27. ADVANCED UNDERSTANDING CONCERNING PUBLICLY FINANCED ENERGY
IMPROVEMENT PROGRAM ...................................................................................................................25
3
4
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND
CONSERVATION BLOCK GRANT PROGRAM – FORMULA GRANTS
1. RESOLUTION OF CONFLICTING CONDITIONS
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the prime grantee administrator for guidance.
2. AWARD AGREEMENT TERMS AND CONDITIONS
This award/agreement consists of the requirements incorporated by reference below:
a. Applicable program regulations: Title V, Subtitle E of the Energy Independence Security Act
(EISA) of 2007, Public Law 110-140.
b. DOE Assistance Regulations, 10 CFR Part 600 located at http://ecfr.gpoaccess.gov/
c. Application/proposal as approved by the grantee.
d. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at
http://management.energy.gov/business_doe/1374.htm
e. Applicable audit and cost principles found in 2 CFR 215OMB Circulars A-102, A-21, A-87, A-
122, A-133, and/or 48 CFR Part 31.
3. REBUDGETING AND RECOVERY OF INDIRECT COSTS (AS APPLICABLE)
THE APPLICABLE TERM IS MARKED BELOW.
[ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS - REIMBURSABLE INDIRECT
COSTS AND FRINGE BENEFITS
a. If actual allowable indirect costs and fringe benefits are less than those budgeted and
funded under 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, indirect, fringe benefits), is less than the total costs reimbursed,
you must refund the difference.
b. Recipients are expected to manage their indirect costs and fringe benefits. DOE will not
amend an award solely to provide additional funds for changes in indirect costs and fringe
benefits. DOE recognizes that the inability to obtain full reimbursement for indirect costs
and fringe benefits means the recipient must absorb the underrecovery. Such
underrecovery may be allocated as part of the organization's required cost sharing.
[ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS – REIMBURSABLE INDIRECT
COSTS
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
5
the underrecovery. Such underrecovery may be allocated as part of the organization’s
required cost sharing.
c. The budget for this award includes indirect costs, but does not include fringe benefits.
Therefore, fringe benefit costs shall not be charged to nor shall reimbursement be requested
for this project nor shall the fringe benefit costs for this project be allocated to any other
federally sponsored project. In addition, fringe benefit costs shall not be counted as cost
share unless approved by the Contracting Officer.
[ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS - INDIRECT COSTS AND
FRINGE BENEFITS ARE NOT REIMBURSABLE
The budget for this award does not include indirect costs or fringe benefits. Therefore, these
expenses shall not be charged to nor reimbursement requested for this project nor shall the
fringe and indirect costs from this project be allocated to any other federally sponsored project.
In addition, indirect costs or fringe benefits shall not be counted as cost share unless approved
by the Contracting Officer.
4. CEILING ON ADMINISTRATIVE COSTS
a. Recipients may not use more than 10 percent of amounts provided under this program, or $75,000,
whichever is greater (EISA Sec 545(b)(3)(A)), for administrative expenses, excluding the costs of
meeting the reporting requirements under Title V, Subtitle E of EISA. These costs should be
captured and summarized for each activating under the Projected Costs Within Budget:
Administration.
b. Recipients are expected to manage their administrative costs. DOE will not amend an award
solely to provide additional funds for changes in administrative costs. The Recipient shall not be
reimbursed on this project for any final administrative costs that are in excess of the designated 10
percent administrative cost ceiling. In addition, the Recipient shall neither count costs in excess of
the administrative cost ceiling as cost share, nor allocate such costs to other federally sponsored
projects, unless approved by the Contracting Officer.
5. LIMITATIONS ON USE OF FUNDS
a. Recipients may not use more than 20 percent or $250,000, whichever is greater (EISA Sec.
545(b)(3)(B)), for the establishment of revolving loan funds.
b. Recipients may not use more than 20 percent or $250,000, whichever is greater (EISA Sec.
545(b)(3)(C)), for subgrants to nongovernmental organizations for the purpose of assisting in the
implementation of the energy efficiency and conservation strategy of the eligible unit of local
government.
6. 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.
7. STATEMENT OF FEDERAL STEWARDSHIP
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.
6
8. SITE VISITS
DOE's authorized representatives have the right to make site visits at reasonable times to review project
accomplishments and management control systems and to provide technical assistance, if required. You
must provide, and must require your subawardees to provide, reasonable access to facilities, office space,
resources, and assistance for the safety and convenience of the government representatives in the
performance of their duties. All site visits and evaluations must be performed in a manner that does not
unduly interfere with or delay the work.
9. REPORTING REQUIREMENTS
a. Requirements. The reporting requirements for this award are identified on the Federal Assistance
Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these
reporting requirements is considered a material noncompliance with the terms of the award.
Noncompliance may result in withholding of future payments, suspension, or termination of the
current award, and withholding of future awards. A willful failure to comply; a history of failure
to comply; may also result in a debarment action to preclude future awards by Federal agencies.
b. Additional Recovery Act requirements listed elsewhere in this document.
10. PUBLICATIONS
a. You are encouraged to publish or otherwise make publicly available the results of the work
conducted under the award.
b. An acknowledgment of 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 [Enter the award number]."
Disclaimer: "This report was prepared as an account of work sponsored by an agency of the
United States Government. Neither the United States Government nor any agency thereof, nor
any of their employees, makes any warranty, express or implied, or assumes any legal liability or
responsibility for the accuracy, completeness, or usefulness of any information, apparatus,
product, or process disclosed, or represents that its use would not infringe privately owned rights.
Reference herein to any specific commercial product, process, or service by trade name,
trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement,
recommendation, or favoring by the United States Government or any agency thereof. The views
and opinions of authors expressed herein do not necessarily state or reflect those of the United
States Government or any agency thereof."
11. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS
You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes,
and regulations for work performed under this award.
12. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION
Nonprofit organizations are subject to the intellectual property requirements at 10 CFR 600.136(a), (c) and
(d). All other organizations are subject to the intellectual property requirements at 10 CFR 600.136(a) and
(c).
600.136 Intangible property.
7
(a) Recipients may copyright any work that is subject to copyright and was developed, or for which
ownership was purchased, under an award. DOE reserves a royalty-free, nonexclusive and irrevocable
right to reproduce, publish or otherwise use the work for Federal purposes, and to authorize others to
do so.
(b) DOE has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first produced under an award; and
(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal
purposes.
(c) In addition, in response to a Freedom of Information act (FOIA) request for research data relating
to published research findings produced under an award that were used by the Federal Government in
developing an agency action that has the force and effect of law, the DOE shall request, and the
recipient shall provide, within a reasonable time, the research data so that they can be made available
to the public through the procedures established under the FOIA. If the DOE obtains the research data
solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling
the full incremental cost of obtaining the research data. This fee should reflect the costs incurred by
the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency
may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
A list of all intellectual property provisions may be found at
http://www.gc.doe.gov/financial_assistance_awards.htm.
13. LOBBYING RESTRICTIONS
By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, to influence congressional action on any legislation or appropriation
matters pending before Congress, other than to communicate to Members of Congress as described in 18
U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.
14. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND
PRODUCTS -- SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased
with funds made available under this award should be American-made.
15. INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP
a. You shall immediately notify the grantee of the occurrence of any of the following events: (i) you
or your parent's filing of a voluntary case seeking liquidation or reorganization under the
Bankruptcy Act; (ii) your consent to the institution of an involuntary case under the Bankruptcy
Act against you or your parent; (iii) the filing of any similar proceeding for or against you or your
parent, or its consent to, the dissolution, winding-up or readjustment of your debts, appointment of
a receiver, conservator, trustee, or other officer with similar powers over you, under any other
applicable state or federal law; or (iv) your insolvency due to your inability to pay your debts
generally as they become due.
b. Such notification shall be in writing and shall: (i) specifically set out the details of the occurrence
of an event referenced in paragraph a; (ii) provide the facts surrounding that event; and (iii)
provide the impact such event will have on the project being funded by this award.
c. Upon the occurrence of any of the four events described in the first paragraph, the grantee reserves
8
the right to conduct a review of your award to determine your compliance with the required
elements of the award (including such items as cost share, progress towards technical project
objectives, and submission of required reports). If the grantee review determines that there are
significant deficiencies or concerns with your performance under the award, the grantee reserves
the right to impose additional requirements, as needed, including (i) change your payment method;
or (ii) institute payment controls.
d. Failure of the recipient to comply with this provision may be considered a material noncompliance
of this award.
16. WASTE STREAM
The subrecipient assures that it will create or obtain a waste management plan addressing waste generated
by a proposed project prior to the project generating waste. This waste management plan will describe the
subrecipient's plan to dispose of any sanitary or hazardous waste (e.g., construction and demolition debris,
old light bulbs, lead ballasts, piping, roofing material, discarded equipment, debris, and asbestos) generated
as a result of the proposed project. The subrecipient shall ensure that the project is in compliance with all
Federal, state and local regulations for waste disposal. The subrecipient shall make the waste management
plan and related documentation available to the recipient to the grantee/recipient or DOE upon request (for
example, during a post-award audit).
17. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
You are restricted from taking any action using Federal funds, which would have an adverse effect on the
environment or limit the choice of reasonable alternatives prior to DOE providing either a NEPA clearance
or a final NEPA decision regarding this project. Prohibited actions include: [Activities that cannot be
performed before the NEPA clearance or decision is completed]. This restriction does not preclude you
from: [activities that can be performed before the NEPA clearance or decision is completed].
If you move forward with activities that are not authorized for federal funding by the DOE Contracting
Officer in advance of the final NEPA decision, you are doing so at risk of not receiving federal funding and
such costs may not be recognized as allowable cost share.
If this award includes construction activities, you must submit an environmental evaluation
report/evaluation notification form addressing NEPA issues prior to DOE initiating the NEPA process.
18. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS
Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or
have any obligation to the recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the
recipient's facilities, or (ii) any costs which may be incurred by the recipient in connection with the D&D of
any of its facilities due to the performance of the work under this Agreement, whether said work was
performed prior to or subsequent to the effective date of this Agreement.
19. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009)
Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to
preserve and create jobs and promote economic recovery, assist those most impacted by the recession,
provide investments needed to increase economic efficiency by spurring technological advances in science
and health, invest in transportation, environmental protection, and other infrastructure that will provide
long-term economic benefits, stabilize State and local government budgets, in order to minimize and avoid
reductions in essential services and counterproductive State and local tax increases. Recipients shall use
grant funds in a manner that maximizes job creation and economic benefit.
9
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
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.
10
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.
C. 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.
D. Publication
An application may contain technical data and other data, including trade secrets and/or privileged
or confidential information, which the applicant does not want disclosed to the public or used by
the Government for any purpose other than the application. To protect such data, the applicant
should specifically identify each page including each line or paragraph thereof containing the data
to be protected and mark the cover sheet of the application with the following Notice as well as
referring to the Notice on each page to which the Notice applies:
Notice of Restriction on Disclosure and Use of Data
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.
E. 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
11
State or Federal regulatory or law enforcement agency, a person with supervisory authority over
the employee (or other person working for the employer who has the authority to investigate,
discover or terminate misconduct, a court or grant jury, the head of a Federal agency, or their
representatives information that the employee believes is evidence of:
• gross management of an agency contract or grant relating to covered funds;
• a gross waste of covered funds
• a substantial and specific danger to public health or safety related to the implementation or
use of covered funds;
• an abuse of authority related to the implementation or use of covered funds; or
• as violation of law, rule, or regulation related to an agency contract (including the competition
for or negotiation of a contract) or grant, awarded or issued relating to covered funds.
Agency Action: Not later than 30 days after receiving an inspector general report of an alleged
reprisal, the head of the agency shall determine whether there is sufficient basis to conclude that
the non-Federal employer has subjected the employee to a prohibited reprisal. The agency shall
either issue an order denying relief in whole or in part or shall take one or more of the following
actions:
• Order the employer to take affirmative action to abate the reprisal.
• Order the employer to reinstate the person to the position that the person held before the
reprisal, together with compensation including back pay, compensatory damages,
employment benefits, and other terms and conditions of employment that would apply to the
person in that position if the reprisal had not been taken.
• Order the employer to pay the employee an amount equal to the aggregate amount of all costs
and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably
incurred by the employee for or in connection with, bringing the complaint regarding the
reprisal, as determined by the head of a court of competent jurisdiction.
Nonenforceability of Certain Provisions Waiving Rights and remedies or Requiring Arbitration:
Except as provided in a collective bargaining agreement, the rights and remedies provided to
aggrieved employees by this section may not be waived by any agreement, policy, form, or
condition of employment, including any predispute arbitration agreement. No predispute
arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out
of this section.
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds
under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall post notice of
the rights and remedies as required therein. (Refer to section 1553 of the American Recovery and
Reinvestment Act of 2009, Pub. L. 111-5, www.Recovery.gov, for specific requirements of this
section and prescribed language for the notices.).
F. Request for Reimbursement (revised)
NOTE: reimbursement is to be immediately requested of the grantee by the subrecipient to ensure
prompt reimbursement and availability of funds before the grant period of performance expires.
G. 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.
H. Information in supporting of Recovery Act Reporting
Recipient may be required to submit backup documentation for expenditures of funds under the
12
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.
I. Availability of Funds (revised)
Funds appropriated under the Recovery Act and obligated to this award are available for
reimbursement of costs until September 30, 2015. NOTE: EECBG funding must be expended
during the grantee’s period of performance during 2009 to 2012 or thereabouts as specified in their
grant award.
J. Additional Funding Distribution and Assurance of Appropriate Use of Funds
Applicable if award is to a State Government or an Agency
Certification by Governor -- Not later than April 3, 2009, for funds provided to any State or
agency thereof by the American Reinvestment and Recovery Act of 2009, Pub. L. 111-5, the
Governor of the State shall certify that: 1) the state will request and use funds provided by the Act;
and 2) the funds will be used to create jobs and promote economic growth.
Acceptance by State Legislature -- If funds provided to any State in any division of the Act are not
accepted for use by the Governor, then acceptance by the State legislature, by means of the
adoption of a concurrent resolution, shall be sufficient to provide funding to such State.
Distribution – After adoption of a State legislature’s concurrent resolution, funding to the State
will be for distribution to local governments, councils of government, public entities, and public-
private entities within the State either by formula or at the State’s discretion.
K. Certifications
With respect to funds made available to State or local governments for infrastructure investments
under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, the Governor,
mayor, or other chief executive, as appropriate, certified by acceptance of this award that the
infrastructure investment has received the full review and vetting required by law and that the
chief executive accepts responsibility that the infrastructure investment is an appropriate use of
taxpayer dollars. Recipient shall provide an additional certification that includes a description of
the investment, the estimated total cost, and the amount of covered funds to be used for posting on
the Internet. A State or local agency may not receive infrastructure investment funding from funds
made available by the Act unless this certification is made and posted.
20. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERY ACT (MAY 2009)
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.
13
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.
21. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS --
SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(MAY 2009)
THIS AWARD TERM IS APPLICABLE TO ANY RECOVERY ACT 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. .THIS AWARD TERM
ALSO APPLIES TO ALL SUBGRANTS AND CONTRACTS.
a. Definitions. As used in this award term and condition--
(1) Manufactured good means a good brought to the construction site for incorporation into the
building or work that has been—
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than
the properties of the individual raw materials.
(2) Public building and public work means a public building of, and a public work of, a
governmental entity (the United States; the District of Columbia; commonwealths, territories,
and minor outlying islands of the United States; State and local governments; and multi-State,
regional, or interstate entities which have governmental functions). These buildings and works
may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways,
tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports,
terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and
canals, and the construction, alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon,
and may include other elements.
b. Domestic preference.
(1) This award term and condition implements Section 1605 of the American Recovery and
Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111--5), by requiring that all iron, steel,
and manufactured goods used in the project are produced in the United States except as
provided in paragraph (b)(3) and (b)(4) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
None
[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
14
(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 valuation of the request, including—
(A) A description of the foreign and domestic iron, steel, and/or manufactured
goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or
manufactured goods cited in accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the
market and a completed cost comparison table in the format in paragraph (d) of
this section.
(iii) The cost of iron, steel, and/or manufactured goods material shall include all
delivery costs to the construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have
been obligated for a project for construction, alteration, maintenance, or repair
shall explain why the recipient could not reasonably foresee the need for such
determination and could not have requested the determination before the funds
were 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:
15
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.
22. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS
(COVERED UNDER INTERNATIONAL AGREEMENTS)--SECTION 1605 OF THE
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009)
THIS AWARD TERM IS APPLICABLE TO ANY 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.
THIS AWARD TERM ALSO APPLIES TO ALL SUBGRANTS AND CONTRACTS.
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.
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
16
Domestic iron, steel, and/or manufactured good –
(1) Is wholly the growth, product, or manufacture of the United States; or
(2) In the case of a manufactured good that consists in whole or in part of materials from another
country, has been substantially transformed in the United States into a new and different
manufactured good distinct from the materials from which it was transformed. There is no
requirement with regard to the origin of components or subcomponents in manufactured
goods or products, as long as the manufacture of the goods occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is
not domestic or designated country iron, steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for incorporation into the
building or work that has been--
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has different properties than the
properties of the individual raw materials.
Public building and public work means a public building of, and a public work of, a
governmental entity (the United States; the District of Columbia; commonwealths, territories,
and minor outlying islands of the United States; State and local governments; and multi-State,
regional, or interstate entities which have governmental functions). These buildings and works
may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways,
tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports,
terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and
canals, and the construction, alteration, maintenance, or repair of such buildings and works.
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:
None
17
[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;
(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.
18
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
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.
23. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY
2009)
THIS AWARD TERM IS APPLICABLE TO RECOVERY ACT PROGRAMS OR ACTIVITIES THAT
MAY INVOLVE CONSTRUCTION, ALTERATION, MAINTENANCE, OR REPAIR. THIS AWARD
TERM ALSO APPLIES TO ALL SUBGRANTS AND CONTRACTS.
a. Section 1606 of the Recovery Act requires that all laborers and mechanics employed by
contractors and subcontractors on projects funded directly by or assisted in whole or in part by and
through the Federal Government pursuant to the Recovery Act shall be paid wages at rates not less
than those prevailing on projects of a character similar in the locality as determined by the
Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of
Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis-Bacon and related
Acts. Regulations in 29 CFR 5.5 instruct agencies concerning application of the standard Davis-
Bacon contract clauses set forth in that section. Federal agencies providing grants, cooperative
agreements, and loans under the Recovery Act shall ensure that the standard Davis-Bacon contract
clauses found in 29 CFR 5.5(a) are incorporated in any resultant 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.
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
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24. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF
FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING
SUBRECIPIENTS (MAY 2009)
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.
25. DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
(NOV 2009)
THIS AWARD TERM IS APPLICABLE TO ARRA AWARDS WHEN WAGE RATE
REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT TERM IS APPLICABLE.
THIS AWARD TERM IS ALSO APPLICABLE TO SUBGRANTS AND CONTRACTS.
Definitions: For purposes of this clause, Clause 30, Davis Bacon Act and Contract Work Hours and Safety
Standards Act, the following definitions are applicable:
(1) “Award” means any grant, cooperative agreement or technology investment agreement made
with Recovery Act funds by the Department of Energy (DOE) to a Recipient. Such Award must
require compliance with the labor standards clauses and wage rate requirements of the Davis-
Bacon Act (DBA) for work performed by all laborers and mechanics employed by Recipients
(other than a unit of State or local 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.”
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(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
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
21
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 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.
22
(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 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
23
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—
(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
24
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
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.
25
(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 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 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
26
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. 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.
26. HISTORIC PRESERVATION (Revised 3/17/10)
Prior to the expenditure of Project funds to alter any historic structure or site, the Recipient or subrecipient
shall ensure that it is compliant with Section 106 of the National Historic Preservation Act (NHPA),
consistent with DOE’s 2009 letter of delegation of authority regarding the NHPA. Section 106 applies to
historic properties that are listed in or eligible for listing in the National Register of Historic Places. If
applicable, the Recipient or subrecipient must contact the State Historic Preservation Officer (SHPO), and
the Tribal Historic Preservation Officer (THPO) to coordinate the Section 106 review outlined in 36 CFR
Part 800. In the event that a State, State SHPO and DOE enter into a Programmatic Agreement, the terms
of that Programmatic Agreement shall apply to all recipient and subrecipient activities within that State.
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.
The Recipient or subrecipient certifies that it will retain sufficient documentation to demonstrate that the
Recipient or subrecipient has received required approval(s) from the SHPO or THPO for the Project.
Recipients or subrecipients shall avoid taking any action that results in an adverse effect to historic
properties pending compliance with Section 106. The Recipient or subrecipient shall deem compliance
with Section 106 of the NHPA complete only after it has received this documentation. The Recipient or
sub-recipient shall upon receipt forward a digital copy of all documentation to DOE relating to NHPA
compliance. Recipient will be required to report annually on September 1 the disposition of all historic
preservation consultations by category.
27. ADVANCE UNDERSTANDING CONCERNING PUBLICLY FINANCED ENERGY
IMPROVEMENT PROGRAMS
The parties recognize that the Recipient may use funds under this award for Property-Assessed Clean
Energy (PACE) loans, Sustainable Energy Municipal Financing, Clean Energy Assessment Districts,
Energy Loan Tax Assessment Programs (ELTAPS), or any other form or derivation of Special Taxing
District whereby taxing entities collect payments through increased tax assessments for energy efficiency
and renewable energy building improvements made by their constituents. The Department of Energy
intends to publish "Best Practices" or other guidelines pertaining to the use of funds made available to the
Recipient under this award pertaining to the programs identified herein. By accepting this award, the
Recipient agrees to incorporate, to the maximum extent practicable, those Best Practices and other
guidelines into any such program(s) within a reasonable time after notification by DOE that the Best
Practices or guidelines have been made available. The Recipient also agrees, by its acceptance of this
award, to require its sub-recipients to incorporate to the maximum extent practicable the best practices and
other guideline into any such program used by the sub-recipient.
1424919.2
EXHIBIT D
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ECI CONTROL SYSTEMS ARIZONA, INC.
[Wage Determination]
See following page.
http://www.wdol.gov/wdol/scafiles/davisbacon/az1.dvb[3/24/2011 3:51:57 PM]
General Decision Number: AZ100001 02/04/2011 AZ1
Superseded General Decision Number: AZ20080001
State: Arizona
Construction Type: Building
Counties: Coconino, Maricopa, Mohave, Pima, Pinal and Yuma Counties in Arizona.
BUILDING CONSTRUCTION PROJECTS (does not include residentialconstruction consisting of single family homes and apartmentsup to and including 4 stories)
Modification Number Publication Date 0 03/12/2010 1 06/04/2010 2 07/02/2010 3 07/09/2010 4 07/23/2010 5 08/06/2010 6 08/27/2010 7 09/10/2010 8 10/15/2010 9 11/05/2010 10 11/19/2010 11 12/03/2010 12 01/21/2011 13 02/04/2011
BRAZ0003-003 11/23/2009
COCONINO, MARICOPA, MOHAVE, PINAL (Area West and North of theSan Francisco River to the Gila River), & YUMA COUNTIES
Rates Fringes
Bricklayer - Cement Block Layer............................$ 24.62 4.57----------------------------------------------------------------* BRAZ0003-008 11/23/2009
PIMA AND PINAL (Area East and South of the San Francisco Riverto the Gila River) COUNTIES
Rates Fringes
Bricklayer - Cement Block Layer............................$ 18.00 4.49---------------------------------------------------------------- CARP0408-001 07/01/2009
Rates Fringes
CARPENTER........................$ 23.00 7.24---------------------------------------------------------------- CARP1327-001 01/01/2010
Rates Fringes
DRYWALL HANGER...................$ 19.25 6.61---------------------------------------------------------------- ELEC0570-003 12/01/2010
PIMA, PINAL (Southern Part), AND YUMA COUNTIES
Rates Fringes
Electrician/Wireman..............$ 22.90 18%+4.70
Zone Definitions
(b) ZONE PAY -Workmen employed in Zones B and C shall be paid Zone Pay as follows:Zone B............an additional $ 1.25 per hour
http://www.wdol.gov/wdol/scafiles/davisbacon/az1.dvb[3/24/2011 3:51:57 PM]
Zone C............an additional $ 3.75 per hourSECTION 3.05 ZONES (a) Zones shall be created in Tucson, Arizona, the headquarters of the Union. Zones may be established in other localities by mutual consent of the parties hereto (Section 1.03). Zones and the applicable rates of pay shall be the same for all Employers coming under the terms of this Agreement. In Tucson, Zone A shall be the area within a twenty-nine (29) mile radius from a basing point at the City Hall. Zone B shall be the area from the outer limits of the twenty-nine (29) mile radius, extending out another seventeen (17) miles (a 46 mile radius total). Zone C shall be the area from the forty-six (46) mile radius, extending to the outside limits of the Local Union's jurisdiction. If any owner's contiguous property falls within more than one Zone, it shall all be considered to be within the closer Zone.---------------------------------------------------------------- ELEC0640-005 06/21/2010
COCONINO, MARICOPA, MOHAVE, and PINAL (Area North and West ofthe boundary line beginning at a point where Papago IndianReservation Road No. 15 crosses the Pima-Pinal County line,then Northeasterly on Road No. 15 to the intersection withHighway FAS-267, extending North on FAS-267 to the intersectionwith Florence Canal, North & East on Florence Canal to theintersection of the line "Second Guide Meridian East" thenNorth to the Maricopa-Pinal County Lines) COUNTIES
Rates Fringes
Electrician/Wireman..............$ 24.80 3%+7.14---------------------------------------------------------------- ENGI0428-003 06/01/2010
Rates Fringes
Power Equipment Operator (2) Crane under 15 tons.....$ 25.22 9.79 (3) Crane,15 tons to 100 tons........................$ 26.30 9.79 (4) Crane, 100 tons and over........................$ 27.33 9.79---------------------------------------------------------------- IRON0075-002 08/01/2009
Rates Fringes
IRONWORKER, STRUCTURAL Zone 1:.....................$ 26.52 17.59
Zone 1: 0 to 50 miles from City Hall in Phoenix or TucsonZone 2: 050 to 100 miles - Add $4.00Zone 3: 100 to 150 miles - Add $5.00Zone 4: 150 miles & over - Add $6.50---------------------------------------------------------------- LABO0383-005 06/01/2009
Rates Fringes
LABORER (Brick/Block Tender).....$ 16.72 4.35---------------------------------------------------------------- PAIN0086-003 04/01/2010
Rates Fringes
PAINTER..........................$ 17.85 4.70---------------------------------------------------------------- PAIN0086-005 07/01/2009
Rates Fringes
GLAZIER..........................$ 25.75 6.39---------------------------------------------------------------- PLUM0469-002 07/01/2010
ZONE A: COCONINO, MARICOPA, MOHAVE & YUMA COUNTIES
http://www.wdol.gov/wdol/scafiles/davisbacon/az1.dvb[3/24/2011 3:51:57 PM]
ZONE B: PIMA AND PINAL COUNTIES
Rates Fringes
PLUMBER/PIPEFITTER Zone A......................$ 31.65 14.90 Zone B......................$ 28.55 14.65---------------------------------------------------------------- SFAZ0669-001 04/01/2010
Rates Fringes
SPRINKLER FITTER (Fire Sprinklers)......................$ 29.85 16.85---------------------------------------------------------------- SHEE0359-002 01/01/2011
PIMA and PINAL (South of the 33rd Parallel) COUNTIES
Rates Fringes
Sheet Metal Worker (Including HVAC) Zone 1......................$ 23.75 10.05---------------------------------------------------------------- SHEE0359-003 01/01/2011
COCONINO, MARICOPA, MOHAVE, PINAL (North of the 33rd Parallel),and YUMA COUNTIES
Rates Fringes
Sheet Metal Worker (Including HVAC)............................$ 23.75 10.05---------------------------------------------------------------- SUAZ2004-001 01/14/2004
Rates Fringes
Cement Mason/Finisher............$ 15.25 5.01 Laborers Concrete Worker.............$ 8.88 0.00 Form Setter.................$ 9.63 0.00 General/Cleanup.............$ 11.37 2.91 Waterproofing...............$ 12.59 0.00 PLASTERER........................$ 15.00 0.00 Power Equipment Operator Backhoe.....................$ 14.78 0.00 TILE FINISHER....................$ 11.00 0.00 TILE SETTER......................$ 14.98 0.00----------------------------------------------------------------
WELDERS - Receive rate prescribed for craft performingoperation to which welding is incidental.================================================================
Unlisted classifications needed for work not included withinthe scope of the classifications listed may be added afteraward only as provided in the labor standards contract clauses(29CFR 5.5 (a) (1) (ii)).
----------------------------------------------------------------
In the listing above, the "SU" designation means that rateslisted under the identifier do not reflect collectivelybargained wage and fringe benefit rates. Other designationsindicate unions whose rates have been determined to beprevailing.
----------------------------------------------------------------
WAGE DETERMINATION APPEALS PROCESS
1.) Has there been an initial decision in the matter? This can
http://www.wdol.gov/wdol/scafiles/davisbacon/az1.dvb[3/24/2011 3:51:57 PM]
be:
* an existing published wage determination* a survey underlying a wage determination* a Wage and Hour Division letter setting forth a position on a wage determination matter* a conformance (additional classification and rate) ruling
On survey related matters, initial contact, including requestsfor summaries of surveys, should be with the Wage and HourRegional Office for the area in which the survey was conductedbecause those Regional Offices have responsibility for theDavis-Bacon survey program. If the response from this initialcontact is not satisfactory, then the process described in 2.)and 3.) should be followed.
With regard to any other matter not yet ripe for the formalprocess described here, initial contact should be with theBranch of Construction Wage Determinations. Write to:
Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210
2.) If the answer to the question in 1.) is yes, then aninterested party (those affected by the action) can requestreview and reconsideration from the Wage and Hour Administrator(See 29 CFR Part 1.8 and 29 CFR Part 7). Write to:
Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210
The request should be accompanied by a full statement of theinterested party's position and by any information (wagepayment data, project description, area practice material,etc.) that the requestor considers relevant to the issue.
3.) If the decision of the Administrator is not favorable, aninterested party may appeal directly to the AdministrativeReview Board (formerly the Wage Appeals Board). Write to:
Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210
4.) All decisions by the Administrative Review Board are final.
================================================================
END OF GENERAL DECISION
1424919.2
EXHIBIT E
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ECI CONTROL SYSTEMS ARIZONA, INC.
[Buy America Certification]
See following page.