IGA; Boulder County; Funding for energy efficiency programs; Exp 3/13/2013
Intergovernmental Agreement
Between Boulder County and City of Boulder
Concerning the Funding of Energy Efficiency Programs
This Intergovernmental Agreement (this "Agreement") is entered into by the County of
Boulder, a body corporate and politic of the State of Colorado (`Boulder County" or "County"),
and the City of Boulder, a Colorado home-rule municipality (the "City"). The County and the
City may hereinafter be referred to individually as a "Party" or collectively as the "Parties."
RECITALS
A. The Colorado Constitution Article XIV, Section 18(2)(a), provides that political
subdivisions of the State may contract with one another to provide any function, service, or
facility lawfully authorized to each of the cooperating units.
B. Boulder County (working with the City and the City of Longmont), the City and
County of Denver, the Denver Regional Council of Governments, the Governor's Energy Office
("GEO"), and Garfield County developed the Colorado Retrofit Ramp-up Project (the "Project")
and applied for a $75 million grant from the U.S. Department of Energy (the "DOE") under the
competitive round of its Energy Efficiency Conservation Block Grant (EECBG) program.
C. In June 2010, the DOE awarded a $25 million competitive grant, Award No. DE-
EE0003554 (the "Competitive Grant Funds"), to Boulder County, which will act as the fiscal
agent to the DOE for expenditures related to the Competitive Grant. Of the $25 million awarded,
$12 million is earmarked to be spent in communities within Boulder County. The tasks included
in the grant application approved by DOE, for which these funds are available, include
EnergySmart services such as Energy Advisor services and contractor certification, social
mobilization, job creation, whole neighborhood retrofits, the creation of a debt service reserve
fund, microloans, and rebates.
D. The County will use the monies awarded to it in the Competitive Grant for the
purposes outlined in the Competitive Grant to benefit all residents of Boulder County on a first-
come, first-served basis.
E. The City has also received federal EECBG monies. In December 2009, the City
was awarded an Allocated EECBG from DOE in the amount of $1,017,800 (the "City Allocated
Grant Funds"). Of this amount, $133,020 was designated for residential sector energy efficiency
retrofits and $198,000 was specified for commercial sector energy efficiency retrofits.
F. The City has additional funding sources for energy efficiency programs, including
a Climate Action Plan Excise Tax that generates a total of approximately $1,600,000 in annual
revenues (the "CAP Tax Funds"). Also, in 2009, GEO awarded $72,600 to the City for
commercial lighting and other energy efficiency rebates for businesses within the City during
2009-2011 (the "GEO Funds"). The CAP Tax Funds, GEO Funds and Allocated Granted Funds
may hereinafter be referred to collectively as "City Funds." Collectively, the County's
Competitive Grant Funds and the City Funds may hereinafter be referred to as the "Program
Funds."
G. The City and the County recognize the benefits of partnering to create a single
point of contact for residents and businesses interested in applying to participate in energy
efficiency programs. The City and the County further recognize that this partnership also
permits the Parties to manage the delivery of these services county-wide and increases
economies of scale as well as the Parties' ability to locally leverage federal funds.
H. The purpose of this Agreement is to provide a framework for the City/County
partnership; describe which programs will be administered through the partnership; and
determine the rights and responsibilities of each Party.
AGREEMENT
In consideration of the covenants set forth herein and the mutual benefits to be derived by
the Parties hereto, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties do hereby agree as follows:
1. Subaward of GEO Award and City Allocated Grant to County.
A. The City hereby assigns $72,600 of its 2011 GEO Funds to the County for
EnergySmart Commercial Rebates for the exclusive benefit of City Applicants
pursuant to the terms and conditions of this Agreement. Such funds shall be
distributed to the County directly from the Colorado Governor's Energy Office
and shall not pass through the City.
B. The City intends to subaward the City's remaining City Allocated Grant Funds,
$331,020, to the County for use in the Programs as provided in this Agreement.
The City will subaward a portion of the Allocated Grant Funds to the County as
the City pays for work invoiced pursuant to Section 4.E., below.
C. The City reserves to right to continue to direct the use of the GEO Funds and the
City Allocated Grant Funds pursuant to the terms of this Agreement.
D. Except as otherwise provided in this Agreement, for each year this Agreement is
in effect, Program Funds allocated for a specific program in a specific year shall
be expended until exhausted in the following order: GEO Funds, Competitive
Grant Funds, City Allocated Grant Funds, CAP Tax Funds. The City may, in its
sole discretion, but with written notice to the County, direct that the Allocated
Grant Funds, GEO Funds and CAP Tax Funds currently designated for a
particular year may be used in any other year during the time this Agreement is in
effect.
2. Programs Subiect to this Agreement. This Agreement concerns the following energy
efficiency programs (the "Programs"):
A. The Residential "EnergySmart" program (the "Residential Program"), which
includes:
1. Energy advisor services ("Energy Advisor Services");
2. Quick installations of energy efficiency measures ("Quick Install Measures");
3. Completion of an EnergySmart audit with an accompanying EnergySmart
Recommendations Report;
4. Contractor pre-certification, technical assistance, contractor advice, and
information about the relative cost-effectiveness of energy efficiency
measures included in the EnergySmart Recommendations Report; and
5. Assistance with rebate and loan applications.
B. The Commercial "EnergySmart" program (the "Commercial Program"), which
includes:
1. Energy Sweeps: walk-through energy assessments and Quick Install Measures
(the "Energy Sweeps");
2. Referral to contractors to complete refrigeration, air compressor, and whole-
building tune-up services; and
3. Technical implementation and assistance for equipment change-out
("Commercial Technical Assistance").
C. Residential rebates, including:
1. EnergySmart program rebates that provide for up to $1000 rebate per home
for energy efficiency measures listed in the EnergySmart Recommendations
Report, paid for with Boulder County Competitive Grant Funds
("EnergySmart Residential Rebates");
2. EnergySmart Pilot Affordable Housing Subsidy that provide for up to $150
rebate toward the cost of receiving an energy audit, paid for with City Funds
for Boulder affordable housing properties, ("Affordable Housing Subsidy";
and
3. SmartRegs rebates ("SmartRegs Rebates") that provide for a rebate of:
a. Up to $200 for single family rental properties for implementing energy
efficiency measures (paid for with City Funds); or
b. Up to $100 rebate for each multi-family unit for implementing energy
efficiency measures included in the EnergySmart Recommendations
Report (paid for with City Funds).
D. EnergySmart Commercial rebates (the "EnergySmart Commercial Rebates"),
including:
1. Round 1: Up to $5,000 for energy efficiency lighting rebate (from 11/1/2010
through the earlier of 3/31/2011 or the depletion of funds for this program);
amount of the rebate is based on deemed energy savings.
2. Round 2: Energy efficiency lighting and other energy efficiency appliances
(from 3/1/2011 until the earlier of the end of the Competitive Grant or the
depletion of funds for this program); amount of the rebate is based on deemed
energy savings.
3. County Administration of Programs. The County shall administer the Project in
compliance with the terms and conditions of the Competitive Grant and shall administer the
Programs pursuant to this Agreement. Additionally, the County shall:
A. Advise City residents and businesses who contact the County regarding programs
available under the Competitive Grant or any other Program ("City Applicants") that they are
eligible to participate in the Programs;
B. Provide administrative and coordination support for the Programs in which City
Applicants desire to participate;
C. Assign an Energy Advisor to each residential City Applicant;
D. Develop residential and commercial electronic customer management systems
that can interface with each other and produce reports on agreed-upon metrics for gauging
success ("Customer Management Systems");
E. Develop a sustainability information management system (SIMS) that will take
information on deemed and actual savings from Customer Management Systems and will be able
to report out to the community on energy, cost, and greenhouse gas savings for peer comparisons
and program success reporting.
4. Program Funding.
A. Through the Programs, Competitive Grant Fund monies will be expended directly
to or for the benefit of residents and businesses located in Boulder County on a first come, first-
served basis. No Competitive Grant Fund monies will be awarded directly to the City. City
Applicants will have access to the Programs, rebates, and loans being funded by the Competitive
Grant, whether or not separate City funding may be available to provide additional services,
rebates, or loans to residents and businesses within the City. This will be the case even if the
City has requirements that encourage participation in the Programs that go beyond any County
requirements. The City has elected to contribute some portion of its CAP Tax Funds to the
Programs. Such contributions shall be subject to the annual appropriate by the Boulder City
Council.
B. The Program Funds shall be allocated to the Programs as follows:
1. Affordable Housing Quick Install Measures: In 2011, the City shall
contribute $5,000 of CAP Tax Funds to the Residential Program for Quick Install
Measures in Boulder Housing Partners' properties.
2. The Affordable Housing Subsidy: In 2011, the City agrees to contribute
$10,000 of City Allocated Grant Funds to the Residential Program for affordable housing
subsidies for multi-family rental property participation in the EnergySmart pilot program
pursuant to City-approved guidelines.
3. Social Mobilization Strategy Design: In 2011, the City agrees to
contribute $40,000 of CAP Tax Funds to the Residential Program for EnergySmart
marketing and social mobilization design aimed at increasing City rental property owner
participation in the Programs.
4. The Residential Program:
a. In 2011, the City agrees to contribute $60,000 of CAP Tax Funds
to the Residential Program for Energy Advisor Services and Quick Install
Measures for the purpose assisting compliance with the City's SmartRegs rental
property regulations by the owners of rental property in the City, exclusively for
the benefit of City Applicants; provided, however, that this 2011 contribution
shall only be available if the County has first expended $1,215,254.76 of the
Competitive Grant Funds on the Residential Program in 2012, whether expended
on City Applicants or otherwise.
b. In 2012, the City agrees to contribute $60,000 of CAP Tax Funds
to the Residential Program for Energy Advisor Services and Quick Install
Measures for the purpose assisting compliance with the City's SmartRegs rental
property regulations by the owners of rental property in the City, exclusively for
the benefit of City Applicants ; provided, however, that this 2012 contribution
shall only be available if the County has first expended $1,215,254.76 of the
Competitive Grant on the Residential Program in 2012 whether expended on City
Applicants or otherwise.
C. In 2013, the City agrees to contribute $30,000 of CAP Tax Funds
to the Residential Program for Energy Advisor Services and Quick Install
Measures for the purpose assisting compliance with the City's SmartRegs rental
property regulations by the owners of rental property in the City, exclusively for
the benefit of City Applicants; provided, however, that this 2013 contribution
shall only be available if the county has first expended $437,753.06 of the
Competitive Grant on the Residential Program in 2013 whether expended on City
Applicants or otherwise.
5. Residential Rebates
a. The SmartRegs Rebates.
I, The County may deduct from the City Allocated Grant
Funds an administrative fee of $6 per SmartReg Rebate issued to a City
Applicant pursuant to this Agreement.
2. In 2011, the County may use $38,020 of the City Allocated
Grant Funds and the City agrees to contribute $60,000 of CAP Tax Funds
to the Residential Program for SmartRegs Rebates for the purpose
assisting compliance with the City's SmartRegs rental property regulations
by the owners of rental property in the City, exclusively for the benefit of
City Applicants.
3. In 2012, the City agrees to contribute $60,000 of CAP Tax
Funds to the Residential Program for SmartRegs Rebates f for the purpose
assisting compliance with the City's SmartRegs rental property regulations
by the owners of rental property in the City, exclusively for the benefit of
City Applicants.
4 In 2013, the City agrees to contribute $30,000 of CAP Tax
Funds to the Residential Program for SmartRegs Rebates for the purpose
assisting compliance with the City's SmartRegs rental property regulations
by the owners of rental property in the City, exclusively for the benefit of
City Applicants,
b. EnergySmart Residential Rebates. In 2011, the County may use $85,000
of the City Allocated Grant Funds for EnergySmart Residential Rebates
for the exclusive benefit of City Applicants. These funds shall be
expended in 2011 regardless of whether the Competitive Grant Funds
identified for the EnergySmart Residential Rebates for 2011 have been
expended.
6. The EnergySmart Commercial Rebates.
a. In 2011, the County may use $72,600 of the GEO Funds and
$120,000 of the City Allocated Grant Funds for EnergySmart Commercial
Rebates for the exclusive benefit of City Applicants; provided, however, that
these 2011 funds shall only be available if $350,000 of the Competitive Grant has
first been expended on the EnergySmart Commercial Rebates in 2011, whether
expended on City Applicants or otherwise.
b. Any City Allocated Grant Funds identified for EnergySmart
Commercial Rebates in 2011 that are not used in that year shall be used by the
County in 2012 regardless of whether the Competitive Grant funds identified for
the EnergySmart Commercial Rebates have been completely used first.
7. The Commercial Program.
a. In 2011, the County may use $33,500_of City Allocated Grant
Funds for Energy Sweeps for City Applicants through the Commercial Program
and $19,500 of City Allocated Grant Funds for Commercial Technical Assistance
through the Commercial Program.
b. In 2012, the County may use $25,000 of the City Allocated Grant
Funds for measurement and verification of the installation of energy efficiency
improvements by City Applicants.
C. The City Funds shall be used only for the benefit of City Applicants that are over
and above the benefits funded by the Competitive Grant ("Additional Benefits"). These
Additional Benefits are only available to City Applicants and shall not exceed the amounts set
forth in this Agreement, as amended from time to time, and shall be administered pursuant to
City-approved guidelines.
D. Consistent with the Competitive Grant, and subject to available funding, the
County will use Competitive Grant monies for the following:
1. All personnel and administrative costs for the Programs;
2. The cost of assigning an energy advisor to each City Applicant;
3. The cost of developing residential and commercial Management Systems;
4. The cost associated with developing the SIMS.
E. Each month, the County will submit invoices to the City for the Additional
Benefits it has provided to City Applicants. The invoices shall be accompanied by a detailed
reporting of funds expended in order to receive payment from the City. (See subsection 5.A.1.,
Reporting and Data Requirements, below, for details regarding the required monthly report.)
The amount available to supplement the Programs each year this Agreement is in effect is
reflected in this Agreement. Payment shall generally be due within 30 days of receipt of the
invoice.
F. If the Competitive Grant monies available in a particular year have been expended
prior to the end of that year, then pursuant to subsection 4.A.1 of this Agreement, the City and
County staff will work cooperatively to form County staff's recommendations to the Board of
County Commissioners regarding any re-appropriation of Competitive Grant monies. The
County may also request that the City identify any additional City monies that may be available
to offer additional services to City Applicants in accordance with this Section. As a last resort,
the City and County staff may make a recommendation to cease offering certain Programs or
loans to Program applicants, including City Applicants.
G. The Programs will be funded by the City as provided in this Section, provided the
following criteria are met:
1. The City and the County have identified and agreed upon specific deliverables
attributable to that contribution that provide benefits to City residents and
businesses;
2. To the maximum extent possible without diluting messages, each event, print
material, or item associated with these deliverables will credit the City with its
contribution; and
3. To the maximum extent possible, without diluting messages, the overall joint
project bears the City name or source of funding when used within the City
limits. The City shall identify certain of the City's proprietary trademarks
that the County may use for this purpose.
G. The allocation of City Funds described in this Section may be amended from time
to time, at the City's sole discretion, provided, however, that the City must provide the County
with adequate notice to allow the County to reasonably avoid expenditure of any City Funds on
the Programs in reliance on this Agreement, before such funds are eliminated by the City's
unilateral amendment pursuant to this subsection. The availability of the City Funds described
in this Section is subject to the annual appropriation by the Boulder City Council.
5. City Personnel Suyoort.
A. To support the Project, City staff will work cooperatively with County staff to:
1. Make recommendations to the Board of County Commissioners regarding the
proper expenditure of the Competitive Grant funds;
2. Draft necessary requests for proposals, review proposals, and recommend
contractors for selection;
3. Recommend how Competitive Grant funds will be distributed among the
programs included in the Project;
4. Provide oversight of Project contractors;
5. Make recommendations to the Board of County Commissioners regarding
contractors' design and/or implementation of the Programs;
6. Develop a comprehensive communications plan for the Programs.
B. City staff will participate in meetings to coordinate and collaborate with Boulder
County Public Health, the City of Longmont, and Boulder County staff to guide and direct the
activities and service described in subsection A, above.
C. City staff will endeavor to support and advise County staff in other mutually
agreed upon areas that are necessary to support the implementation of the Programs.
6. Reporting and Data Requirements.
A. The County will provide the City with monthly reports, including:
1. A detailed reporting of funds expended on the Programs for City
Applicants and County applicants; and
2. Program accomplishments, challenges, and budgets.
B. The County shall comply with the flow down requirements set out in the DOE
Financial Assistance Regulations (Appendix A to this Agreement) to ensure proper invoice and
reporting procedures for the City Allocated Grant funds.
C. City staff will have access to both the commercial and residential Customer
Management Systems to run reports on program metrics, including but not limited to:
1. EnergySmart program participation in the City and County-wide;
2. Energy efficiency measures implemented in the City and County-wide;
and
3. Greenhouse gas emission reductions and deemed energy savings in the
City and County-wide.
D. The County shall provide the City with customized reports to capture the Program
metrics identified in subsection 6.C., above.
7. Outreach and Marketing.
A. County staff will be present at social and business network meetings, events, and
other outreach opportunities to educate and market the commercial and residential programs to
the community.
B. The County will coordinate with the City for outreach and marketing within
Boulder city limits.
C. City staff may be present at social and business network meetings, events, and
other outreach opportunities when they are held within city limits of Boulder to educate and
market the commercial and residential programs to the Boulder community. Nothing herein
shall prevent the City from also providing its staff or contractors to market the Project or the City
Programs to additional social and business networks within the City limits.
D. The County and the City will both be credited for their partnership in any and all
public communications regarding the success and effectiveness of the residential and commercial
programming and the Competitive Grant.
S. Grant Compliance.
A. The County shall be responsible for complying with all requirements of the
Competitive Grant and the City shall be responsible for complying with all requirements of the
City Allocated Grant. The Parties will cooperate with each other to ensure compliance with the
requirements of each grant, including, but not limited to, compliance with the terms and
conditions in the American Recovery and Reinvestment Act of 2009, all reporting requirements,
and Davis-Bacon Act requirements.
B. The City further acknowledges that the County, as the fiscal agent of the
Competitive Grant, has certain reporting and compliance obligations. Accordingly, the City
pledges its full cooperation with the County in connection with the distribution, disbursement,
and accounting for the Competitive Grant Funds. The City shall provide Boulder County with
whatever information or reports the City has in its possession that the County deems necessary to
meet its obligations under the Competitive Grant.
C. The County further acknowledges that the City, as the grantee of the Allocated
Grant Fund, has certain reporting and compliance obligations. As the subawardee of the
Allocated Grant Fund, the County pledges its full cooperation with the City in connection with
the distribution, disbursement, and accounting for the Allocated Grant Funds. The County shall
provide the City with whatever information the County has in its possession that the City deems
necessary to meet its obligations under the Allocated Grant.
9. Not A ent or Representative. Neither Party is an agent or representative of the other
Party and shall have no authority under this Agreement or otherwise to make representations or
commitments, verbal or written, on behalf of the other Party without that Party's express prior
consent.
10. Modification. This Agreement may be altered, amended, or repealed only on the mutual
agreement of the County and the City by a duly executed written instrument. The City Manager
for the City is authorized to execute agreements modifying this Agreement on behalf of the City.
The financial obligations contained in this Agreement may be adjusted from time to time, subject
to annual appropriations of the governing Party.
11. Assignment. This Agreement shall not be assigned or subcontracted by either Party
without the express prior written consent of the other Party.
12. Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of the Parties.
13. Choice of Laws. The laws of the State of Colorado shall govern the interpretation and
enforcement of this Agreement. Any litigation that may arise between the Parties involving the
interpretation or enforcement of the terms of this Agreement shall be initiated and pursued by the
Parties in the Boulder Courts of the 201" Judicial District of the State of Colorado and the
applicable Colorado Appellate Courts.
14. Waiver of Breach. Any waiver of a breach of this Agreement shall not be held to be a
waiver of any other or subsequent breach of this Agreement. All remedies afforded in this
Agreement shall be taken and construed as cumulative, that is, in addition to every other remedy
provided herein or by law.
15. Integration. This Agreement cancels and terminates, as of its effective date, all prior
agreements between the Parties relating to the services covered by this Agreement, whether
written, oral, or partly written and partly oral.
16. Indemnification. Neither Party indemnifies the other Party. The County and the City
each assume responsibility for the actions and omissions of its own agents and employees in the
performance or failure to perform work under this Agreement. It is agreed that such liability for
actions or omissions of their own agents and employees is not intended to increase the amounts
set forth in the Colorado Governmental Immunity Act, now existing, or as the same may be later
amended. By agreeing to this provision, the Parties do not waive nor intend to waive the
limitations on liability which are provided to the Parties under the Colorado Governmental
Immunity Act § 24-10- 101 et seq., C.R.S., as amended.
17. Severability. If any provision of this Agreement is found to be invalid, illegal, or
unenforceable, the validity and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
18. No Third Party Beneficiaries. The enforcement of the terms and conditions of this
Agreement and all rights of action relating to such enforcement shall be strictly reserved to the
County and the City, and nothing contained in this Agreement shall give or allow any claim or
right of action whatsoever by any other or third person. It is the express intent of the Parties to
this Agreement that any person receiving services or benefits under this Agreement shall be
deemed an incidental beneficiary only.
19. Effective Date, Duration, and Withdrawal. This Agreement shall automatically renew
on January l each year until May 10, 2013. This Agreement may be extended for future years
provided the Parties appropriate estimated costs for the future years. Either party may withdraw
from all or part of this Agreement, which withdrawal shall be effective ten {10} days after the
Party mails by certified mail, return receipt requested, a written notice to the other Party of its
intent to withdraw. The withdrawing Party will then be released from its obligations hereunder.
No additional subawards of City Allocated Grant Funds shall be made by the City to the County
if this Agreement is terminated by either Party.
20. No Multi le-Fiscal Year Obligation. Nothing herein shall constitute a multiple fiscal
year obligation pursuant to Colorado Constitution Article X, Section 20. Notwithstanding any
other provision of this Agreement, the obligation of each Party under this Agreement is subject
to annual appropriation by the governing body of such Party.
21. Counterparts. This Agreement may be executed by facsimile and in any number of
counterparts, each of which shall be deemed an original instrument, but all of which together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have set their hands and seals this
day of tk nl , 2011.
- BOULDER COUNTY
-AL
Nj~- r lr'
'Ben Pearlman, Chair
to a v E
ti v~~jtp} j' Board of Boulder County Commissioners
1u
Attest.
Clerk to the Bog d
G 3 a~ L
Date
CITY OF BOULDER
r l C~~-
J~-►
City Manager
ATTEST:
City Clerk on behalf of the
Director of Finance and Record/
APPROVED AS TO FORM:
cl~ e`,
City Attorney's Office
Date: / ff
APPENDIX A
031510
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION
BLOCK GRANT PROGRAM - FORMULA GRANTS
Table of Contents
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANT
PROGRAM - FORMULA GRANTS 2
1. RESOLUTION OF CONFLICTING CONDITIONS 2
2. AWARD AGREEMENT TERMS AND CONDITIONS_ 2
3. AWARD PROJECT PERIOD AND BUDGET PERIODS 2
4. STAGED DISBURSEMENT OF FUNDS 2
5. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR
PAYMENTS (ASAP) SYSTEM 3
6. INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET PERIOD AND
PROJECT PERIOD 3
7. COST SHARING FFRDC'S NOT INVOLVED 3
8. REBUDGETTNG AND RECOVERY OF INDIRECT COSTS 4
9. CEILING ON ADMINISTRATIVE COSTS 4
10. LIMITATIONS ON USE OF FUNDS 5
11. PRE-AWARD COSTS 5
12. USE OF PROGRAM INCOME - ADDITION 5
13. STATEMENT OF FEDERAL STEWARDSHIP 5
14. SITE VISITS 5
15. REPORTING REQUIREMENTS 5
16. PUBLICATIONS 6
17. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS 6
18. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION 6
19. LOBBYING RESTRICTIONS 6
20. NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS SENSE
OF CONGRESS 6
21. INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP 6
22. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS 7
23. DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS 7
24. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAY 2009) 7
25. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT
(MAY 2009) 10
26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS SECTION 1605 OF THE
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) 11
27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER
INTERNATIONAL AGREEMENTS)--SECTION 1605 OF THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAY 2009) 12
28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY 2009) 15
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS
AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPI ENTS (MAY 2009) 15
30. DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (NOV 2009)...... 16
31. HISTORIC PRESERVATION 21
ATTACHMENT 1 - INTELLECTUAL PROPERTY PROVISIONS 22
Not Specified/Other
031510
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANT
PROGRAM - FORMULA GRANTS
1. RESOLUTION OF CONFLICTING CONDITIONS
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions contained in this award
must be referred to the DOE Award Administrator for guidance.
2. AWARD AGREEMENT TERMS AND CONDITIONS
This award/agreement consists of the Grant and Cooperative Agreement cover page, plus the following:
a, Special terms and conditions.
b. Attachments:
Attachment No. Title
1 Intellectual Property Provisions
2 Project Activity Worksheet(s) are attached. If the Worksheet is for the Strategy, the grant
will be amended to include additional Worksheets as activities are approved.
3 Federal Assistance Reporting Checklist
4 Budget Pages are attached. For Strategy, the SF-424A is attached, if it was included in the
application. The grant will be amended to include additional Budget Pages as activities
are approved.
5 Davis-Bacon Act Wage Determination(s), if applicable. For Strategy awards, the Wage
Determination will be included when activities are approved.
6 Special Requirements, if applicable
7 SHPO Letter, if applicable
c. Applicable program regulations: Title V, Subtitle E of the Energy Independence Security Act (EISA) of 2007, Public
Law 110-140.
d. DOE Assistance Regulations, 10 CFR Part 600 at http://ecfr.gpoaccess.gov and if the award is for research and to a
university or non-profit, the Research Terms & Conditions and the DOE Agency Specific Requirements at
http://www.ns f. gov/b fald ias/policy/rtc/index. jsp.
e. Application/proposal as approved by DOE.
f National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at
http://management.energy.gov/business doe/1374.htm
3. AWARD PROJECT PERIOD AND BUDGET PERIODS
The Project and Budget Periods for this award are concurrent for a 36-month period as indicated in Item No. 7 of the
Assistance Agreement Face Page.
4. STAGED DISBURSEMENT OF FUNDS
I 1 IF MARKED, THIS TERM IS APPLICABLE
The total funding allocation for this award is shown in Block 13 of the Assistance Agreement Cover Page. However, funds
will be released according to a staged disbursement schedule. All funds must be expended within 36 months of the effective
date of the award.
[ j For Energy Efficiency Conservation Strategy (EECS) Only awards, funds in the amount of
$ [ ] is released to the Recipient to begin work on the EECS. The approved activities are listed in Attachment 2, Project
Activity Worksheets. The remaining funds will be released for disbursement upon DOE approval of the EECS and
amendment of the award to include the authorized Project Activity Worksheets.
Not Specified/Other
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[ ] Funds in the amount of $ [ ] is released to the Recipient to begin work on the activities listed in Attachment 2,
Project Activity Worksheets. The remaining funds will be released for disbursement upon DOE approval of additional
activities and amendment of the award to include the authorized Project Activity Worksheets.
[ ] Funds in the amount of $ [ ] is released to the Recipient to begin work on administrative duties pending resolution of
problematic issues such as eligibility, technical issues, NEPA, historic preservation, budgetary items, or similar issues. The
remaining funds will be released upon successful resolution of these issues and amendment of the award.
5. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR
PAYMENTS (ASAP) SYSTEM
[ 1 IFMARKED,THIS TERMDOESNOTAPPLY-SEEATTACHMENT 6
a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP system.
b. Requesting Advances. Requests for advances must be made through the ASAP system. You may submit requests as
frequently as required to meet your needs to disburse funds for the Federal share of project costs. If feasible, you
should time each request so that you receive payment on the same day that you disburse funds for direct project costs
and the proportionate share of any allowable indirect costs. If same-day transfers are not feasible, advance payments
must be as close as is administratively feasible to actual disbursements,
c. Adjusting payment requests for available cash. You must disburse any funds that are available from repayments to and
interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits,
discounts, and interest earned on any of those Rinds before requesting additional cash payments from DOE/NNSA.
d. Payments. All payments are made by electronic funds transfer to the bank account identified on the ASAP Bank
Information Form that you filed with the U.S. Department of Treasury.
6. INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET PERIOD AND
PROTECT PERIOD
APPLICABLE ONLY TO INCREMENTALLY FUNDED AWARDS.
This award is funded on an incremental basis. The maximum obligation of the DOE/NNSA is limited to the amount shown
on the Agreement Face Page. You are not obligated to continue performance of the project beyond the total amount
obligated and your pro rata share of the project costs, if cost sharing is required. Additional funding is contingent upon the
availability of appropriated funds and substantial progress towards meeting the objectives of the award.
7. COST SHARING FFRDC'S NOT INVOLVED
APPLICABLE ONLY IF COST SHARING IS INCLUDED IN THE AWARD.
a. Total Estimated Project Cost is the sum of the Government share and Recipient share of the estimated project costs.
The Recipient's cost share must come from non-Federal sources unless otherwise allowed by law. By accepting federal
funds under this award, you agree that you are liable for your percentage share of total allowable project costs, on a
budget period basis, even if the project is terminated early or is not funded to its completion. This cost is shared as
follows:
Budget Budget Period Government Share Recipient Share Total Estimated Cost
Period Start
No.
N/A 11/10/2009 $1,017,800.00 $225,000 $1,242,800
Total Project $1,017,800.00 5225,000 $1,242,800
b. If you discover that you may be unable to provide cost sharing of at least the amount identified in paragraph a of this
article, you should immediately provide written notification to the DOE Award Administrator indicating whether you
will continue or phase out the project. If you plan to continue the project, the notification must describe how
replacement cost sharing will be secured.
Not Specified/Other 3
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c. You must maintain records of all project costs that you claim as cost sharing, including in-kind costs, as well as records
of costs to be paid by DOE.,/NNSA. Such records are subject to audit.
d. Failure to provide the cost sharing required by this Article may result in the subsequent recovery by DOE/NNSA of
some or all the funds provided under the award.
8. REBUDGETING AND RECOVERY OF INDIRECT COSTS
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 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.
[ x ] 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.
9. 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.
Not Specified/Other 4
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10. 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.
11. PRE-AWARD COSTS
APPLICABLE ONLY IF COMPLETED BELOW.
You are entitled to reimbursement for preaward costs in the amount of N/A for the period from [MonthDayYear] to
[MonthDayYear] in accordance with your request dated [MonthDayYear] if such costs are allowable in accordance with the
applicable Federal cost principles referenced in 10 CFR Part 600.
12. 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.
13. STATEMENT OF FEDERAL STEWARDSHIP
DOE/NNSA 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.
14. SITE VISITS
DOE's authorized representatives have the right to make site visits at reasonable times to review project accomplishments
and management control systems and to provide technical assistance, if required. You 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.
15. REPORTING REQUIREMENTS
a. Requirements. The reporting requirements for this award are identified on the Federal Assistance Reporting Checklist,
DOE F 4600.2, attached to this award. Failure to comply with these reporting requirements is considered a material
noncompliance with the terms of the award. Noncompliance may result in withholding of future payments, suspension,
or termination of the current award, and withholding of future awards, A willful failure to perform, a history of failure
to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a
debarment action to preclude future awards by Federal agencies.
b. Dissemination of scientific/technical reports, Scientific/technical reports submitted under this award will be
disseminated on the Internet via the DOE Information Bridge (www.osti.gov/bridge), unless the report contains
patentable material, protected data, or SBIR/STTR data. Citations for journal articles
c, produced under the award will appear on the DOE Energy Citations Database (www.osti.eov/energycitations}.
d. Restrictions. Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable
Information (P11), limited rights data (proprietary data), classified information, information subject to export control
classification, or other information not subject to release.
Not Specified/Other 5
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16. 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
DE-SC0003169."
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."
17. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS
You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes, and regulations
for work performed under this award.
18. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION
a. The intellectual property provisions applicable to this award are provided as an attachment to this award or are
referenced on the Agreement Face Page. A list of all intellectual property provisions may be found at
http://www.u.doe.v
iz /financial assistance awards.htm,
b. Questions regarding intellectual property matters should be referred to the DOE Award Administrator and the Patent
Counsel designated as the service provider for the DOE office that issued the award. The 1P Service Providers List is
found at littp:- ww~c.ge.doe.enwdurwnentt'huellectual I'rnperty(IP_Service Providers fbr
19. 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.G. 1913. This restriction is in addition to those prescribed
elsewhere in statute and regulation.
20. 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.
21. INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP
a. You shall immediately notify the DOE 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.
Not Specified/Other 6
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c. Upon the occurrence of any of the four events described in the first paragraph, DOE reserves the right to conduct a
review of your award to determine your compliance with the required elements of the award (including such items as
cost share, progress towards technical project objectives, and submission of required reports). If the DOE review
determines that there are significant deficiencies or concerns with your performance under the award, DOE 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 financial
assistance award by the Contracting Officer.
22. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
You are restricted from taking any action using Federal funds, which would have an adverse effect on the environment or
limit the choice of reasonable alternatives prior to DOE/NNSA providing either a NEPA clearance or a final NEPA decision
regarding this project. Prohibited actions include: Activities other than those described in Attachment 2. This restriction
does not preclude you from:
BRIEF DESCRIPTION: 1) Performance contracting in City Building, 2) Energy retrofits for existing buildings, 3)
Energy Retrofits for existing homes, 4) bike share program
NEPA/NHPA CONDITIONS: NONE
See Clause 31 "Historic Preservation" below and Attachment 7 "ARRA SHPO Letter"
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/NNSA initiating the NEPA process.
23. 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.
24. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAY 2009)
Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to preserve and create
jobs and promote economic recovery, assist those most impacted by the recession, provide investments needed to increase
economic efficiency by spurring technological advances in science and health, invest in transportation, environmental
protection, and other infrastructure that will provide long-term economic benefits, stabilize State and local government
budgets, in order to minimize and avoid reductions in essential services and counterproductive State and local tax increases.
Recipients shall use grant funds in a manner that maximizes job creation and economic benefit.
The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance,
accountability, transparency, data collection and resources as specified in Act itself and as discussed below.
Recipients should begin planning activities for their first tier 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
Not Specified/Other 7
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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.
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. 1 1 1-5, any representative
of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1988 (5 U.S.C.
App.) or of the Comptroller General is authorized -
(1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local
agency administering such contract that pertain to, and involve transactions 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
Not Specified/Other 8
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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 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 o£
• 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.
Nonenforceablity of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as provided in
a collective bargaining agreement, the rights and remedies provided to aggrieved employees by this section may not be
waived by any agreement, policy, form, or condition of employment, including any predispute arbitration agreement.
No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out of this
section.
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under the American
Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall post notice of the rights and remedies as required therein.
(Refer to section 1553 of the American Recovery and Reinvestment Act of 2009, Pub. L. 11 1-5, www.Recovery.gov,
for specific requirements of this section and prescribed language for the notices.).
F. Request for Reimbursement
Not Specified/Other 9
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Reserved
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 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.
1. Availability of Funds
Funds appropriated under the Recovery Act and obligated to this award are available for reimbursement of costs until
September 30, 2015.
J. Additional Fundine Distribution and Assurance of Annronriate 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.
25. 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.cer.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 (htip://www.dnb.com) is one of the requirements
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for registration in the Central Contractor Registration.
d. The recipient shall report the information described in section 1512(c) of the Recovery Act using the reporting
instructions and data elements that will be provided online at http://www.Federa]Reporting.gov and ensure that any
infonmation that is pre-filled is corrected or updated as needed.
26. 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 FUNDS FOR CONSTRUCTION. ALTERATION,
MAINTENANCE. OR REPAIR OFA PUBLIC B UILDING OR PUBLIC WORK AND THE TOTAL PROJECT
VALUE IS ESTIMATED LESS THAN 57,443.000. THIS AWARD TERMALSO 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
fimctions). 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
(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;
(S) Unit of measure;
Not Specified/Other 11
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(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
dottars *
Item I:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 2:
Foreign steel, iron , or manufactured good
Domestic steel, iron, or manufactured good
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral,
attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER
INTERNATIONAL AGREEMENTS)--SECTION 1605 OF THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAY 2009)
THIS AIVARD TERM ISAPPLICABLE TO ANY RECOVERY ACT FUNDS FOR CONSTRUCTION, ALTERATION,
Not Specified/Other 12
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MAINTENANCE. OR REPAIR OFA PUBLIC BUILDING OR PUBLIC WORK WITHA 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 SUBGRANTSAND
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.
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.
Not Specified/Other 13
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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
[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
Not Specified/Other 14
031510
the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award
amount, redistribution of budgeted funds, and/or other appropriate actions taken to cover costs associated with
acquiring or using the foreign iron, steel, and/or relevant manufactured goods_ When the basis for the exception is
the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award
amount or redistribute budgeted funds, as appropriate, by at least the differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of
foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or manufactured
goods is noncompliant with the applicable Act.
d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the applicant
shall include the following information and any applicable supporting data based on the survey of suppliers:
Foreign and Domestic Items Cost Comparison
Description Unit of Measure Quantity Cost
dollars *
Item 1:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 2:
Foreign steel, iron , or manufactured good
Domestic steel, iron, or manufactured good
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral,
attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY 2009)
THIS AWARD TERMIS APPLICABLE TO RECOVER YACT PROGRAMS OR ACTIVITIES THAT MAYINVOLVE
CONSTRUCTION. ALTERATION, MAINTENANCE. OR REPAIR. THIS AWARD TERM ALSO APPLIES TO ALL
SUBGRANTSAND 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.
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS
AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS (MAY 2009)
Not Specified/Other 15
031510
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.whitchouse.gov/omb/circulars/al02/al02.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-433. OMB Circular A--133 is available at
http://www.whitehouse.gov/omb/circulars/al33/al33.html. This shall be accomplished by identifying expenditures for
Federal awards made under the Recovery Act separately on the SEFA, and as separate rows tinder 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.
30. DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (NOV 2009)
THIS AWARD TER;V IS APPLICABLE TO ARRA AWARDS WHEN WAGE RATE REOUIRFME'NTS UNDER
SECTION 1606 OF THE RECD 1'ER Y ACT TERM IS APPLICABLE. THIS A WARD 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."
(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
Not Specified/Other 16
031510
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),
wil l 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 I (b)(2) of the
Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or
mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made
or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are deemed to be constructively made or incurred during
such weekly period. Such laborers and mechanics shall be. paid the appropriate wage rate and fringe benefits
on the wage determination for the classification of work actually performed, without regard to skill, except as
provided in §5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein, provided that
the employer's payroll records accurately set forth the time spent in each classification in which work is
performed. The wage determination (including any additional classification and wage rates conformed under
paragraph (a)(1)(ii) of this section) and the Davis-Bacon poster (W14-1321) 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
Not Specified/Other 17
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a detenmination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting
Officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs
(a)(1)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the classification under this
Contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe
benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of
the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe
benefits under a plan or program, provided that the Secretary of Labor has found, upon the written request of the
Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require
the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
(2) Withholding. The 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 I (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 I (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/esaJwhd/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
Not Spccified/Other 18
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investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime
contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its
own records, without weekly submission to the sponsoring government agency (or the Recipient or Subrecipient (as
applicable), applicant, sponsor, or owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and
shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under § 5.5
(a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i)
of Regulations, 29 CFR part 5, and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the Contract
during the payroll period has been paid the full weekly wages earned, without rebate, either directly or
indirectly, and that no deductions have been made either directly or indirectly from the full wages earned,
other than permissible deductions as set forth in Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or
cash equivalents for the classification of work performed, as specified in the applicable wage determination
incorporated into the Contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347
shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of
this section.
(D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal
prosecution under section 1001 of title 18 and section 3729 of title 31 of the United States Code.
(iii) The Contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available
for inspection, copying, or transcription by authorized representatives of the Department of Energy or the Department
of Labor, and shall permit such representatives to interview employees during working hours on the job. If the
Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may,
after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records
upon request or to make such records available may be grounds for debarment action pursuant to 29 C.FR 5.12.
(4) Apprentices and trainees-
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed
when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with
the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer
and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his
or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not
individually registered in the program but who has been certified by the Office of Apprenticeship Training, Employer
and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment
as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be
greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker
listed on a payroll
at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the
applicable wage rate on the wage determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the work actually performed. Where a Contractor
is performing construction on a project in a locality other than that in which its program is registered, the ratios and
wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's
registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered
program for the apprentice's level of progress, expressed as a percentage 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 classifi cation, fringes shall be paid in
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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 joumeyrnan
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 ail 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 Ordcr 11246, as amended and 29 CFR
part 30.
(5) Compliance with Copeland Act requirements. The Contractor shall comply with the requirements of 29 CFR part 3, which are
incorporated by reference in this Contract.
(6) Contracts and Subcontracts. The Recipient, Subrecipient, the Recipient's, and Subrecipient's contractors and subcontractor
shall insert in any Contracts the clauses contained herein in(a)(1) through (10) and such other clauses as the Department of
Energy may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any
lower tier subcontracts. The Recipient shall be responsible for the compliance by any subcontractor or lower tier subcontractor
with all of the paragraphs in this clause.
(7) Contract termination: debarment. A breach of the Contract clauses in 29 CFR 5.5 may be grounds for termination of the
Contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related
Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this Contract.
(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this Contract shall not be
subject to the general disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the
Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between
the Recipient, Subrecipient, the Contractor (or any of its subcontractors), and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.
(10) Certification of eligibility.
(i) By entering into this Contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has
an interest in the Contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of
section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Goverment contract
by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 512(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.
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(1) Overtime requirements. No Contractor or subcontractor contracting for any part of the Contract work which may require or
involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which
he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in
such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph
(b)(1) of this section, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition,
such Contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of
Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed
with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth
in paragraph (b)(1) of this section, in the sum of S 10 for each calendar day on which such individual was required or permitted to
work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth
in paragraph (b)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The Department of Energy or the Recipient or Subrecipient shall upon
its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be
withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or
any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph (b)(2) of this section.
(4)Contracts and Subcontracts. The Recipient, Subrecipient, and Recipient's and Subrecipient's contractor or subcontractor shall
insert in any Contracts, the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The Recipient shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section. 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.
31. HISTORIC PRESERVATION (Revised 3/17/10)
Prior to the expenditure of Project funds to alter any historic structure or site, the Recipient or subrecipient shall ensure
that it is compliant with Section 106 of the National Historic Preservation Act (NHPA), consistent with DOE's 2009
letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in or
eligible for listing in the National Register of Historic Places. If applicable, the Recipient or subrecipient must contact
the State Historic Preservation Officer (SHPO), and the Tribal Historic Preservation Officer (THPO) to coordinate the
Section 106 review outlined in 36 CFR Part 800. In the event that a State, State SHPO and DOE enter into a
Programmatic Agreement, the terms of that Programmatic Agreement shall apply to all recipient and subrecipient
activities within that State. SHPO contact information is available at the following link:
littp://www.ncshpo.orm/find/index,htm. THPO contact information is available at the following link:
http://www.natbpo.org/maT).htmi , 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.
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ATTACHMENT 1 - INTELLECTUAL PROPERTY PROVISIONS
Intellectual Property Provisions (NRD-1003)
Nonresearch and Development
Nonprofit organizations are subject to the intellectual property requirements at 10 CFR 600.136(x), (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,
(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.
(c) 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.
(d) 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)).
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