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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 Z:\Council Packets\2011\R5-5-11\110505A.docx Last printed 5/3/2011 11:33 AM Page 2 of 3 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. Z:\Council Packets\2011\R5-5-11\110505A.docx Last printed 5/3/2011 11:33 AM Page 3 of 3 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 Z:\Council Packets\2011\R5-5-11\110505A.docx Last printed 5/3/2011 11:33 AM Page 2 of 3 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. Z:\Council Packets\2011\R5-5-11\110505A.docx Last printed 5/3/2011 11:33 AM Page 3 of 3 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 19 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.” 20 (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.