BUREU OF ADMINISTRATION
LOAN AGREEMENT ASSURANCES, TERMS, AND CONDITIONS
I. During the period of this Agreement, the Recipient hereby agrees to:
A. Complete all aspects of the energy conservation project as agreed to by the BOA.
B. Provide documentation regarding procurement and construction of the project to the State Energy Management Office. As well as, job creation and/or retention figures, Davis Bacon wage certifications, and verification of compliance with the Buy American requirement. This information shall be provided in Quarterly status reports that shall be due on the 10th business day following the end of the calendar quarter, until the project is completed.
C. Comply with all applicable laws, ordinances, and codes of the state and local governments and all conditions, rules and regulations of the U.S. Department of Energy which relate to the administration of grants including, but not limited to:
1. Title VI of the Civil Rights Act of 1964 (PL 88-352),
2. National Environmental Policy Act of 1969 (PL 91-190) and Executive Order 11514,
3. Copeland “Anti-Kickback” Act (18 USC 874) as supplemented by 29 CFR Part 3,
4. Contract Work Hours and Safety Standards Act (40 USC 327-330) as supplemented by 29 CFR Part 5.
D. Maintain all records and other information relevant to this Agreement for a period of three years after final payment of the Grant is made. If an audit, litigation, or other action involving the records is started prior to the end of the three year period, all records must be retained until each issue arising out of the action is resolved. All costs for which payment is claimed shall be supported by properly executed payrolls, time records, invoices or other documentation evidencing, in proper detail, the nature of the charges.
E. Comply with the following applicable federal cost and acquisition principles:
1. OMB Circular A-21, Cost Principles for Education Institutions,
2. OMB Circular A-87, Cost Principles for State, Local Governments, and Indian Tribal Governments,
3. OMB Circular A-122, Cost Principles Nonprofit Organizations,
4. OMB Circular A-133, Audits of Institutions of Higher Education and other Nonprofit Institutions,
5. 45 CFR Part 74, Uniform Administrative Requirements for Awards and Subawards to Institutions of Higher Education, Hospitals, Other Nonprofit Organizations, and Commercial Organizations,
6. 48 CFR Part 31 - Contract Cost Principles and procedures for Profit Making Concerns,
7. OMB A-102 - Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments,
8. OMB A-110 - Uniform Administrative Requirements Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations.
F. Comply with federal regulations 10 CFR part 420 - State Energy Program.
G. Comply with federal regulations 10 CFR part 600 – Financial Assistance Rules. Payment and procurement provisions are included as Appendix A.
H. Comply with and obtain any required permits with applicable federal, state, and municipal laws, codes, and regulations for work performed under this award.
I. Comply with the requirements of Section 106 of the National Historic Preservation Act prior to expenditure of Federal funds.
J. Permit the BOA, the U.S. Department of Energy, the Comptroller General of the United States, or any of their duly authorized representatives to have access to any books, documents, papers and records of the Recipient which are directly pertinent to this Agreement for the purpose of making an audit, examination, excerpts, and transcripts. The Recipient further agrees that the BOA, or it’s authorized representatives, may carry out monitoring and evaluation activities.
K. Comply with Equal Employment Opportunity as described in U.S. Executive Order 11246 as amended by U.S. Executive Order 11375, and as supplemented in U.S. Department of Labor regulations (10 CFR Part 60).
L. Cooperate fully with the BOA in an Audit of fiscal transactions related to expenditures made under the terms of this Agreement. This audit will be done in accordance with the provisions of generally accepted auditing standards, and the disposition of any problem relating to questioned costs of fiscal irregularities the part of the Recipient will be the responsibility of the Recipient.
M. Ensure that any information released to the general public concerning this Agreement or work completed under this Agreement include reference to the fact that the BOA is a grantor and the federal support came from the U.S. Department of Energy.
N. Comply with any U.S. Department of Energy regulations and requirements concerning patents, invention and copyrights.
O. Include, in any sub-agreement, authorized by this Agreement or approved under paragraph “E” above, all Agreement provisions as listed in paragraphs “A” through “L” of this section.
II. The Recipient is prohibited from assigning, transferring, conveying, subletting or otherwise disposing of this Agreement or its rights, title or interest therein or its power to execute such Agreement to any other person, company, or corporation without the prior written consent and approval of the BOA.
III. The written terms and provisions of this Agreement shall supersede all prior verbal statements of any representative of the parties to this Agreement and such statements shall not be effective or construed as entering into or forming a part of, or altering in any manner whatsoever, this Agreement to the Agreement documents.
IV. The BOA may, upon at least thirty days written notice, terminate this Agreement in whole or in part for cause, which may include:
A. Failure of the Recipient to fulfill in a timely and proper manner it’s obligations under this Agreement, including compliance with the approved program and attached conditions and such statutes and U.S. Department of Energy directives as may become generally applicable at anytime;
B. Submission by the Recipient to U.S. Department of Energy or the BOA of reports that are incorrect or incomplete in any material respect;
C. Ineffective or improper use of funds provided under this Agreement;
D. Suspension or termination by U.S. Department of Energy of the grant to the BOA under which this Agreement is made, or the portion thereof delegated by this Agreement; and
E. Failure to comply with the name recognition clause of this Agreement.
V. It is further agreed that any breach or evasion of any of the terms of this Agreement by either party will result in immediate and irreparable injury to the other party and will authorize recourse to injunction and/or specific performance as well as all other legal or equitable remedies to which such injured party may be entitled hereunder.
VI. This Agreement may be extended or amended by mutual agreement of the parties prior to its expiration. All amendments must be in writing, signed and dated by both parties and thereupon shall become part of this Agreement.
VII. The Grantee shall provide a summary of jobs created and retained for all workers as well as sub-contractors. The information shall be submitted using the form inserted below. The form can be found at http://www.state.sd.us/boa/ose/OSE_Statewide_Energy.htm Estimate the number of jobs created and jobs retained in the United States and outlying areas. At a minimum, this estimate shall include any new positions created and any existing positions that were retained to carry out the ARRA projects or activities. The number shall be expressed as “full time equivalents” (FTE), calculated cumulatively as all hours worked divided by the total number of hours in a full time schedule. Provide this information with each request for payment.
Link to American Council for an Energy Efficient Economy (ACEEE) jobs created calculator:
http://www.aceee.org/press/0907jobs.htm
VIII. The Grantee shall include a copy of the Buy American Certification with each pay request. The applicable form is included below. The Grantee shall comply with the following Buy American Provisions as stated in the American Recovery and Reinvestment Act.
A. . REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -- SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(a) Definitions. As used in this award term and condition--
(1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been--
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials.
(2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi-State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.
(b) Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111--5), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3) and (b)(4) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
None
(3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that--
(i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of the Recovery Act . (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(3) of this section shall include adequate information for Federal Government evaluation of the request, including--
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section.
(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
(dollars)*
Item 1: Description Unit of Quantity Cost
measure
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.]
IX. The Grantee shall comply with the Davis Bacon requirements as specified in the American Recovery & Reinvestment Act. The Grantee shall submit a copy of the weekly certified payroll f for each week in the period covering the request for payment.
(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