Clean Diesel Grant Contract Copyright 2014
City of Dubuque Consent Items # 21.
ITEM TITLE: Clean Diesel Grant Contract
SUMMARY: City Manager recommending approval of the United States Environmental
Protection Agency Clean Diesel Grant to install specialized muffler
systems on four of the City of Dubuque's heavy trucks.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
❑ Clean Diesel Grant Contract-MVM Memo City Manager Memo
❑ Clean Diesel Contract Memo Staff Memo
❑ Clean Diesel Contract Staff Memo
THE CITY OF Dubuque
UBE I
erica .i
Masterpiece on the Mississippi 2007-2012-2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Clean Diesel Grant Contract
DATE: December 8, 2014
Public Works Director Don Vogt recommends City Council approval of the United States
Environmental Protection Agency Clean Diesel Grant to install specialized muffler
systems on four of the City of Dubuque's heavy trucks for a not to exceed amount of
$80,000.
1 concur with the recommendation and respectfully request Mayor and City Council
approval.
Micliael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Don Vogt, Public Works Director
Dubuque
THE CITY OF
AII-America City UB &E
1
Masterpiece on the Mississippi 2007.2012.2013
TO: Michael C. Van Milligen, City Manager
FROM: Don Vogt, Public Works Director
SUBJECT: Clean Diesel Grant Contract
DATE: December 8, 2014
INTRODUCTION
The purposes of this memorandum are to provide information and recommend a course
of action concerning the attached contract and associated documents pertaining to the
United States Environmental Protection Agency (USEPA) Clean Diesel Grant awarded
to the City of Dubuque by the Iowa Department of Natural Resources (IDNR).
BACKGROUND
For the purpose of reducing harmful diesel engine emissions by older City of Dubuque
heavy trucks, the City applied for the noted grant earlier this year. While most of the
City's trucks are already equipped with "clean diesel" engine technology, four trucks
were identified as qualifying for the grant program due to their age and planned
retention. Those trucks are Water Department dump trucks #4906 and #4915 and
Public Works Department street cleaning truck#4003 and asphalt oil truck#3202.
DISCUSSION
The compensation to the City of Dubuque from the USEPA for the equipment and labor
to install four specialized muffler systems on the noted trucks is not to exceed
$80,000.00. The work is anticipated to be done by a private sector service provider
through the requisite competitive bidding process. The attached contract and
associated documents were reviewed and approved by City Attorney Barry Lindahl.
ACTION STEP
Your signature on the attached documents is requested.
Attachments
ISEP � United States
„ Environmental Protection Agency
DS-97745501-0
EPA Project Control Number
CERTIFICATION REGARDING LOBBYING
CERTIFICATION FOR CONTRACTS, GRANTS,
LOANS AND COOPERATIVE AGREEMENTS
The undersigned certifies,to the best of his or her knowledge and belief,that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative
agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
(3)The undersigned shall require that the language of this certification be included in the
award documents for all sub-awards at all tiers(including sub-contracts, sub-grants, and
contracts under grants, loans, and cooperative agreements)and that all sub-recipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making
or entering into this transaction imposed by section 1352, title 31 U.S. Code. Any person who fails
to file the required certification shall be subject to a civil penalty of not less than$10,000 and not
more than $100,000 for each such failure.
Michael C. Van Milligen, City Manager
Typed Name&Title of Authorized Representative
Signature and Date of Authorized Representative
EPA Form 6600-06(Rev.06/2005)Previous editions are obsolete.
Sub-Award Certification
Federal Funding Accountability and Transparency Act
To be completed by Department:
1. Grant Name and Number: Diesel Vehicle Emissions Reductions for Dubuque DS-97745501-0
2. Amount of proposed Sub-Award: $80.000.00
3. Name of Sub-recipient: City of Dubuque
To be completed by Sub-Recipient:
4. Data Universal Numbering System (DUNS) Number:
5. Did your organization receive 80%or more of its annual gross revenues from Federal Awards or in
Federal contracts preceding the fiscal year?
Yes No
6. If you answered yes to the previous question, did your organization receive $25,000,000 or more in
annual gross revenues from Federal Awards or in Federal contracts the preceding fiscal year?
Yes No
7. If you answered yes to questions 5 and 6, is information regarding compensation of top five
executives publicly available?
Yes No
8. Are you owned by another entity?
Yes No
9. If yes, what is the DUNS number of the parent entity?
10. Location Information:
Address of Sub-recipient:
City:
State:
Congressional District:
County:
Zip Code:
11. Primary Location of Performance Under the Award if different from Sub-recipient address:
City:
State:
Congressional District:
County:
Zip Code:
Signature of Authorized Official Date
RELEASE OF CLAIMS
In accordance with Section 7.13 of Contract #15ESDAQBCIIAMS-0001, the undersigned certifies
that: THE CITY OF DUBUQUE releases the Iowa Department of Natural Resources against all
claims arising under, or by virtue of, this Contract except claims which are specifically exempted.
Unless otherwise provided in the above referenced Contract, by state law or otherwise expressly
agreed to by the parties to the Contract, final payment under a settlement upon termination of this
Contract shall not constitute a waiver of DNR's claims against the City of Dubuque, or their
sureties under this Contract or applicable performance and payment bonds.
CITY OF DUBUQUE
By:
Printed Name:
Title:
MICHAEL C. VAN MILL GEN
Date:
CITY MANAGER
IOWA DEPARTMENT OF NATURAL RESOURCES
CONTRACT NUMBER 15ESDAQBCIIAMS-0001
Between
IOWA DEPARTMENT OF NATURAL RESOURCES
And
CITY OF DUBUQUE
This Contract was approved by the Environmental Protection Commission on November 19, 2014.
IN WITNESS THEREOF, the parties hereto have entered into this Contract on the day and year last
specified below.
DEPARTMENT OF NATURAL RESOURCES
By:
Bruce Trautman, Deputy Director
CITY OF DUBUC JE
By:
Michael C. Van Milligen, City Manager
Date:
Date:
For DNR use only:
Instructions: Retain the original contract in the project file and send a hardcopy with the first invoice.
0 This contract has been recorded in the DNR's central office database. initials
If the box above is not checked, follow the instructions below:
1. Identify the appropriate division:
0 Conservation & Recreation X. Environmental Services
0 Management Services 0 Director's Office
Immediately upon obtaining all signatures, scan, fax to 515-281-8895, or mail a signed copy of the contract
for entry into DNR's central office database. Mailing address: Wallace State Office Building, Attention:
(your respective division coordinator), 502 East 9th Street, Des Moines, Iowa 50319.
DNR Updated 6-10-11
PROFESSIONAL SERVICES
SPECIAL CONDITIONS
This Contract is entered into between the Iowa Department of Natural Resources(DNR)and the City of Dubuque(Dubuque).
The parties agree as follows:
Section 1 IDENTITY OF THE PARTIES
1.1 Parties. DNR is authorized to enter into this Contract. DNR's address is:Wallace State Office Building, 502 East 9�1
Street, Des Moines, Iowa 50319.
Dubuque,a local government is organized under the laws of the State of Iowa and is registered with the Iowa Secretary of
State. Dubuque's address is:50 West 131h Street, Dubuque, Iowa 52001.
1.2 Project Managers. Each party has designated a Project Manager, who shall be responsible for oversight and
negotiation of any contract modifications, as follows:
DNR Project Manager: Jim McGraw
AQB Supervisor, Program Development Section
Air Quality Bureau
7900 Hickman Rd, Suite 1
Windsor Heights, IA 50324
Phone: 515-725-9543
Email: iim.mcoraw(a)dnr.iowa.aov
Dubuque Project Manager: Don Vogt
Public Works Director
925 Kerper Court
Dubuque, IA 52001
Phone: 563-589-4344
Email: dvogt(a)citvofdubuaue oro
Section 2 STATEMENT OF PURPOSE
2.1 Background. The DNR was awarded a FY 2014 State Clean Diesel Grant Program from the Environmental Protection
Agency, Region VII (EPA)that provides for the opportunity to reduce diesel emissions in Dubuque, Iowa through a sub-grant
program allowing for the purchase and installation of diesel reduction strategies on municipal vehicles.
2.2 Purpose. The parties have entered into this Contract for the purpose of allowing Dubuque to voluntarily reduce
emissions through the purchase and installation of retrofit technologies, including four(4)LNF/LXF Muffler Systems.
Section 3 DURATION OF CONTRACT
3.1 Term of Contract.The term of this Contract shall be December 1,2014 through September 25,2015, unless terminated
earlier in accordance with the Termination section of this Contract. However, this Contract shall not begin until it has been
signed by both parties.
3.2 Approval of Contract. If the amount of compensation to be paid by DNR according to the terms of this Contract is equal
to or greater than$25,000.00,then performance shall not commence unless by December 1,2014 this Contract has been
approved by the Environmental Protection Commission.
Section 4 DEFINITIONS
4.1 "Deliverables"shall mean services to be provided by,or on behalf of, Dubuque pursuant to this Contract. Deliverables
shall include everything produced by Dubuque that is related to the Tasks, such as reports, meetings, documentation, designs,
copy,artwork,data, information, graphics, images, processes, techniques, materials, plans, papers,forms, studies,
modifications, content, concepts,and all other tangible and intangible works, materials and property of every kind and nature
that are related to the Deliverables.
4.2 "Milestone Date" shall mean any of the dates contained in the contract stating a deadline for accomplishing tasks
required by this Contract.
15ESDAQBCIIAM-0001;Paye 2
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Section 5 STATEMENT OF WORK
5.1 Statement of Work. Dubuque shall perform the following tasks. Dubuque shall complete its obligations under this
Contract by the Milestone Dates set out in the following table:
Obligation Milestone
Date
Task 1: Pre-testing and Preparation of Vehicles
Dubuque shall complete pre-testing to determine vehicle capabilities to handle LNF/LXF mufflers and
emissions device monitors. As necessary, Dubuque shall do maintenance preparation to get the vehicles
prepared for retrofit equipment. No later
Dubuque shall pre-test and do necessary preparation to the following four(4)fleet vehicles being than
considered for retrofit equipment.
• 2001, Freightliner FL80(VIN#1 FVHBXAK62H077019) 2/28/15
• 2001, Freightliner FL80(VIN#1 FVHBXAK1 1 DJ34973)
• 1998, International 4900(VIN#1 HTSHAARXWH561341)
• 1998, International 4700 VIN#1 HTSCAAN7WH520077
Task 2: Retrofit Purchase and Installation.
Description: Dubuque shall purchase and install four(4)LNF/LXF Muffler Systems. No later
Dubuque shall purchase four(4) LNF/LXF Muffler Systems and emissions device monitors. Dubuque than
shall ensure that the retrofit equipment is:
• a verified technology. Verify technologies at hftip:/fepa.gov/cleandiesel/verification/verif-list.htm or purchase:
htti)://www.arb.ca.gov/diesel/verdev/vUcvt.htm. 3/31/15
• procured fairly and in open competition according to City of Dubuque procurement requirements.
Dubuque shall have an outside source install four(4)_LNF/LXF mufflers and emissions device monitors on
the following vehicles:
• 2001, Freightliner FL80(VIN#1 FVHBXAK62H077019)
• 2001, Freightliner FL80 (VIN#1 FVHBXAK1 1 DJ34973) Install:
• 1998, International 4900 (VIN#1 HTSHAARXWH561341) 8/30/15
• 1998, International 4700 VIN#1 HTSCAAN7WH520077
Task 3: Progress Reporting -Quarterly
Description: Dubuque shall submit electronic pro'ect progress reports to the DNR on a quarterly basis.
Due Date Reporting Period
January 15, 2015 December 1 —December 31, 2014
April 15, 2015 Janua 1 —March 31, 2015
July 15, 2015 Aril 1 —June 30,2015
September 15, 2015 Jul 1 —September 1, 2015
Reporting requirements shall include, but are not limited to:
Project Status Summary. Project to date summary that shall include, but is not limited to: No later
Number of purchases and/or installations completed. Also include the date of the purchase than
and install (as applicable); Ongoing
Identify any milestones not met and explain 1)why they were not met and 2)how to remedy Due Dates
any constraints. Also provide a timeline of when the milestone/project will be back on track; specified in
• Identify any public relations events that took place during this reporting period. Please provide Task 4
links to websites where the program was publicized, as necessary;
• Identify what tasks/steps are anticipated for the next reporting period; and
• Summary of any additional concerns or accomplishments.
• Additional Items as Requested. Additional reporting information may be requested by the DNR
at any time during the term of this Contract to meet upcoming reporting guidance and requirements
as are established or may be established by the EPA.
Dubuque shall respond in writing to DNR requests for information within five(5)business days of
the written request.
15ESDAQBCIIAM-0001:P;ye 3
DNR Updated 6-10-11
Obligation Milestone
Date
Task 4: Invoice and Documentation
In accordance with Section 7.5, Dubuque shall submit an invoice for payment no later than September 25,
2015. The invoice shall itemize all reimbursable charges. Appropriate documentation to support the fees or
charges shall be attached and is to include, but are not limited to:
• Pre-testing and Vehicle Preparation (Task 1). Copies of the receipts/invoices for pre-testing and
preparation to get vehicles ready for retrofit equipment.
. Where/who purchased from;
. Describe the purchase;
. Date of purchase; and
. Purchase price and copy of payment
• Retrofit Purchase and Install(Task 2). Copies of the retrofit equipment purchase and installation
receipts/invoices;which should include the following information:
. Model information related to the retrofit equipment;
. Purchase Information:
• Where/who purchased from;
• Describe the purchase;
• Date of purchase; and
• Purchase price and copy of payment
• Copies of the signed acceptance of delivery, showing the date received,for items
shipped/delivered after date of purchase. No later
• Installation Information: than
• Name and professional address of person installing retrofit equipment;
• Identify installation hours; 9/25/15
• Date of installation; and
• Price and copy of payment; and
• Date vehicles with retrofit equipment put back in-service
• Vehicle Summary:
• Make, Model, and Engine Year;
• Vehicle Identification Numbers; and
. Diesel Emission Reduction project(retrofit or pre-test).
• Fair and Open Competition. Identification of how Dubuque procured fairly and in open competition
according to City of Dubuque procurement requirements the retrofit equipment and installation. Copies
of all bids received during the open/fair competition for vendor selection are appreciated.
• Final Project Status Summary. Dubuque shall provide a final electronic report to the DNR no later than
September 25, 2015 that identifies, but in not limited to:
• Summary of success and lessons learned from the project; and
• Summary of any additional concerns or accomplishments.
• Additional Items as Requested. Additional reporting information may be requested by the DNR at any
time during the term of this Contract to meet upcoming reporting guidance and requirements as are
established or may be established by the EPA.
Dubuque shall respond in writing to requests for information within 5 business days of the request.
5.2 Disclaimer. Any publications created by Dubuque pertaining to work performed under this Contract shall contain the
following statements:
"This project was funded through the support of the Iowa Department of Natural Resources and the U.S.
Environmental Protection Agency. However, any opinions, findings, conclusions, or recommendations
expressed herein are those of the author(s)and do not necessarily reflect the views of DNR or EPA."
The DNR reserves the right to publish the reports, publications, and other forms of material completed by Dubuque and
delivered to the DNR. Written and oral releases are considered to be within the context of publication rights so reserved by
the DNR.
5.3 Non-Exclusive Rights. This Contract is not exclusive. DNR reserves the right to select other contractors to provide
services similar or identical to the Statement of Work described in this Contract during the term of this Contract.
15ESDAQBCIIAM-0001: Page 4
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5.4 Industry Standards. Services rendered pursuant to this Contract shall be performed in a professional and workmanlike
manner in accordance with the terms of this Contract and the standards of performance considered generally acceptable in the
relevant industry for similar tasks and projects. In the absence of a detailed specification for the performance of any portion of
this Contract,the parties agree that the applicable specification shall be the generally accepted industry standard.
5.5 Amendments. Amendments including modifications, deletions and additions may be made only by mutual written
consent of the parties.
Section 6 MONITORING AND REVIEW
6.1 Performance. Dubuque shall complete its obligations under this Contract by the Milestone Dates set out in Section 5.1.
Failure by Dubuque to complete the above-designated portions of its obligations by the Milestone Dates set out herein shall
constitute material breach of this Contract by Dubuque and shall be grounds for DNR to immediately terminate this Contract
for cause.
6.2 Review Meetings. The DNR may request a meeting with Dubuque for the purpose of reviewing activities under the
Contract at any time. Dubuque shall attend such meeting(either in person or by telephone conference call)and address the
issues presented at the meeting to the best of their ability at that time or in the timeframe determined by both parties.
6.3 DNR right to review and observe. DNR and EPA Project Managers shall have the right to review and observe, at
any time, completed work or work in progress. Dubuque shall allow the State of Iowa, DNR, or EPA,without cost, to inspect
its facilities and books and records relating to invoicing and time records for the purpose of monitoring and evaluating
performance of this Contract.
Section 7 COMPENSATION
7.1 Source of Funding. The source of funding for this Contract is DNR-EPA Assistance Program 66.040, State Clean
Diesel Grant Program (B); DNR cost center 7260. The statutory authority for the DNR to enter into this Contract is
455B.103(5).
7.2 Not-to-exceed total amount of Contract. Payment to Dubuque according to the terms of this Contract shall not
exceed $80,000.00. Funds shall be paid out on a reimbursement basis for eligible expenses incurred and paid by Dubuque.
Payment shall be for satisfactory completion of the Statement of Work outlined in this Contract, provided that Dubuque has
complied with the terms of this Contract.
7.3 Final Notice Acceptance. If DNR concludes, in its sole discretion, that all the Tasks required by the Statement of Work
have been timely completed and all Deliverables required by this Contract have been satisfactorily completed and delivered,
and that the implementation of the Statement of Work is completed and successfully deployed, then DNR shall pay Dubuque
according to Section 7.6.
7.4 Budget.The budget for this Contract shall be as follows:
Task Amount of compensation per Task Invoice
Task 1: Pre-test&Maintenance Due
Pre-test&Preparation on four 4 vehicles $500.00/vehicle Not to exceed$2,000.00 9/25/15
Task 2: Purchase and Installation Not to exceed $78,000.00
Purchase four(4)LNF/LXF mufflers($16,633.17/vehicle) $66,532.68 9/25/15
Installation($2,866.83/vehicle) $ 11,467.32
Task 3: Progress Reporting—Quarter) * $0.00 N/A
Task 4: Invoice and Documentation* $0.00 N/A
Total Not toexceed $80,000.00
*Payment for completion of Tasks 1 &2 where specific payment is allotted shall be dependent upon the timely completion of corresponding items required by
Tasks 3&4 where no specific payment is allotted.
15ESDAQBCIIAM-0001 Pa_,�
DNR Updated 6-10-11
7.5 Submission of Invoice. Dubuque shall submit a single invoice to the DNR no later than September 25, 2015. The
invoice shall itemize the work performed pursuant to the Contract. The invoice shall comply with all applicable rules
concerning payment of such claims and shall contain appropriate documentation necessary to support the fees or charges
included in the invoice. DNR shall have the right to dispute any invoice item submitted for payment and to withhold payment
of any disputed amount if DNR reasonably believes the invoice is inaccurate or incorrect in any way. The original invoice
shall be submitted to:
Iowa Department of Natural Resources—Air Quality Bureau
Attention: Christina liams
7900 Hickman Rd, Suite 1
Windsor Heights IA 50324
7.6 Payment of Invoice. DNR shall pay the approved invoice in arrears and in conformance with Iowa Code section
8A.514. Unless otherwise agreed to in writing by the parties, Dubuque shall not be entitled to receive any other payment or
compensation from the State of Iowa for any services provided by or on behalf of Dubuque under this Contract. Payment
will be issued to:
City of Dubuque
Attention: Don Vogt, Public Works Director
925 Kerper Court
Dubuque IA 52001
7.7 No advance payment. No advance payments shall be made for any Deliverables provided by Dubuque pursuant to this
Contract.
7.8 Delay of Payment Due to Contractor's Failure. If DNR determines that Dubuque has failed to perform or deliver
any Deliverable required by this Contract, then Dubuque shall not be entitled to any compensation or any further
compensation if compensation has already occurred, under this Contract until such Deliverable is performed or delivered.
DNR shall withhold that portion of the invoice amount which represents payment for the Deliverable that was not completed,
delivered and successfully deployed.
7.9 Erroneous Payments and Credits. Dubuque shall promptly re-pay or refund to DNR the full amount of any
overpayment or erroneous payment within ten business days after either discovery by Dubuque or notification by DNR of
the overpayment or erroneous payment.
7.10 Set-off Against Sums Owed by Contractor. In the event that Dubuque owes DNR or the State any sum (including
any State taxes in arrears)under the terms of this Contract, any other contract, pursuant to a judgment, or pursuant to any law,
DNR may set off such sum against any sum invoiced to DNR by Dubuque. This may be done in DNR's sole discretion unless
otherwise required by law.
7.11 Reimbursable Expenses. There shall be no reimbursable expenses associated with this Contract separate from the
compensation referred to in this section, unless agreed to by both parties in an amendment to this Contract or in a Change
Order executed by both parties. Unless otherwise specifically provided for in this Contract, Dubuque shall be solely
responsible for all its costs and expenses, including travel, mileage, meals, lodging, equipment, supplies, personnel, training,
salaries, benefits, insurance, conferences, long distance telephone, and all other costs and expenses of Dubuque.
7.12 Stop Services. In addition to its other remedies described herein, DNR shall have the right at any time during the
Contract term to direct the services of Dubuque fully or partially suspended or stopped, if the Deliverables fail to conform to
applicable specifications and requirements under this Contract. DNR shall give Dubuque the reasons for the stop work
directive.
7.13 Final Payment. Before final payment or a termination settlement under this Contract, Dubuque shall execute and
deliver to DNR a release of all claims against DNR arising under, or by virtue of, this Contract except claims which are
specifically exempted by Dubuque. Unless otherwise provided in this Contract, by State law or otherwise expressly agreed
to by the parties to the Contract, final payment under a settlement upon termination of this Contract shall not constitute a
waiver of DNR's claims against Dubuque, or Dubuque's sureties under this Contract or applicable performance and
payment bonds.
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Section 8 FEDERAL PROGRAMMATIC CONDITIONS
8.1 This Contract is funded, in whole or in part, with federal funds. Dubuque has read and understands the provisions of
Exhibit B — Additional Requirements for Federally-funded Agreements, attached hereto and made part of this Contract by
this reference, and Dubuque agrees to conform to the requirements contained therein.
8.2 Dubuque agrees to comply with the current EPA general terms and conditions available at:
http://www.epa.gov/ogd/tc ian 2014 odf. These terms and conditions are in addition to the assurances and certifications
made as part of the award and the terms, conditions or restrictions. The EPA repository for the general terms and
conditions by year can be found at: httl?://www.epa.goviogd/tc.htm. A copy of the EPA general terms and conditions
applicable to this Contract is available from DNR. A copy of the grant award terms, conditions and restrictions applicable to
this Contract is available from DNR.
15ESDAQBCIIAM-0001 ?- ,
DNP. Updated 9-1-09
GENERAL CONDITIONS
Section 1 COMPLIANCE WITH THE LAW
The Contractor, and its employees and agents, shall comply with all applicable federal, State, and local laws, rules,
ordinances, regulations and orders when performing the services under this Contract, including without limitation, all laws
applicable to the prevention of discrimination in employment and the use of targeted small businesses as suppliers. The
Contractor, and its employees and agents shall also comply with all federal, State and local laws regarding business permits
and licenses that may be required to carry out the work performed under this Contract. Contractor represents and warrants
that it has complied with all federal, State, foreign and local laws applicable to the performance of its obligations under this
Contract.
Section 2 TERMINATION
2.1 Termination Due to Lack of Funds or Change in Law. DNR shall have the right to terminate this Contract without
penalty by giving 60 days written notice to the Contractor as a result of any of the following:
2.1.1 The legislature or governor fail in the sole opinion of DNR to appropriate funds sufficient to allow DNR to
either meet its obligations under this Contract or to operate as required and to fulfill its obligations under this
Contract; or if funds anticipated for the continued fulfillment of the Contract are, at any time, not forthcoming
or are insufficient, either through the failure of DNR to appropriate funds or funding from a federal source is
reduced or discontinued for any reason, or through discontinuance or material alteration of the program for
which funds were provided;
2.1.2 If funds are de-appropriated, reduced, not allocated, or receipt of funds is delayed, or if any funds or
revenues needed by DNR to make any payment hereunder are insufficient or unavailable for any other
reason as determined by DNR in its sole discretion;
2.1.3 If DNR's authorization to conduct its business or engage in activities or operations related to the subject
matter of this Contract is withdrawn or materially altered or modified;
2.1.4 If DNR's duties, programs or responsibilities are modified or materially altered; or
2.1.5 If there is a decision of any court, administrative law judge or an arbitration panel or any law, rule, regulation
or order is enacted, promulgated or issued that materially or adversely affects DNR's ability to fulfill any of its
obligations under this Contract.
2.2 Immediate Termination by DNR. DNR may terminate this Contract for any of the following reasons effective
immediately without advance notice and without penalty:
2.2.1 In the event the Contractor is required to be certified or licensed as a condition precedent to providing
services, the revocation or loss of such license or certification will result in immediate termination of the
Contract effective as of the date on which the license or certification is no longer in effect;
2.2.2 DNR determines that the actions, or failure to act, of the Contractor, and its agents and employees have
caused, or reasonably could cause, any person's life, health or safety to be jeopardized;
2.2.3 The Contractor fails to comply with confidentiality laws or provisions;or
2.2.4 The Contractor furnished any statement, representation or certification in connection with this Contract or the
RFP which is materially false, deceptive, incorrect or incomplete.
2.3 Termination for Cause. The occurrence of any one or more of the following events shall constitute cause for DNR to
declare the Contractor in default of its obligations under this Contract.
2.3.1 The Contractor fails to perform, to DNR's satisfaction, any material requirement of this Contract or is in
violation of a material provision of this Contract, including, but without limitation, the express warranties made
by the Contractor;
2.3.2 DNR determines that satisfactory performance of this Contract is substantially endangered or that a default is
likely to occur;
2.3.3 The Contractor fails to make substantial and timely progress toward performance of the Contract;
2.3.4 The Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or State law to
the extent allowed by applicable federal or State law including bankruptcy laws; the Contractor terminates or
suspends its business; or DNR reasonably believes that the Contractor has become insolvent or unable to
pay its obligations as they accrue consistent with applicable federal or State law;
2.3.5 The Contractor has failed to comply with applicable federal, State and local laws, rules, ordinances,
regulations and orders when performing within the scope of this Contract;
2.3.6 The Contractor has engaged in conduct that has or may expose the State or DNR to liability, as determined
in DNR's sole discretion;
2.3.7 The Contractor has infringed any patent, trademark, copyright, trade dress or any other intellectual property
right or proprietary right, or the Contractor has misappropriated a trade secret, or
2.3.8 Contractor fails to comply with any of the Task Milestone Dates contained in this Contract.
General Conditions -15ESDAQBCIIAM-0001: 8
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2.4 Notice of Default. If there is a default event caused by the Contractor, DNR shall provide written notice to the
Contractor requesting that the breach or noncompliance be remedied within the period of time specified in DNR's
written notice to the Contractor. If the breach or noncompliance is not remedied by the date of the written notice, DNR
may either:
2.4.1 Immediately terminate the Contract without additional written notice; or
2.4.2 Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.
2.5 Termination upon Notice. Following 30 days written notice, DNR may terminate this Contract in whole or in part
without the payment of any penalty or incurring any further obligation to the Contractor. Following termination upon
notice, the Contractor shall be entitled to compensation, upon submission of invoices and proper proof of claim, for
services provided under this Contract to DNR up to and including the date of termination.
2.6 Remedies of the Contractor in Event of Termination by DNR. In the event of termination of this Contract for any
reason by DNR, DNR shall pay only those amounts, if any, due and owing to the Contractor for services actually
rendered up to and including the date of termination of the Contract and for which DNR is obligated to pay pursuant to
this Contract. Payment will be made only upon submission of invoices and proper proof of the Contractor's claim.This
provision in no way limits the remedies available to DNR under this Contract in the event of termination. However,
DNR shall not be liable for any of the following costs:
2.6.1 The payment of unemployment compensation to the Contractor's employees;
2.6.2 The payment of workers' compensation claims, which occur during the Contract or extend beyond the date
on which the Contract terminates;
2.6.3 Any costs incurred by the Contractor, including, but not limited to, startup costs, overhead or other costs not
directly associated with the performance of the Contract; and
2.6.4 Any taxes that may be owed by the Contractor not directly in connection with the performance of this
Contract, including, but not limited to, sales taxes, excise taxes, use taxes, income taxes or property taxes.
2.7 The Contractor's Termination Duties. The Contractor upon receipt of notice of termination or upon request of
DNR, shall:
2.7.1 Cease work under this Contract and take all necessary or appropriate steps to limit disbursements and
minimize costs, and furnish a report within 30 days of the date of notice of termination, describing the status
of all work under the Contract, including,without limitation, results accomplished and conclusions obtained.
2.7.2 Immediately cease using and return to DNR any personal property or materials, whether tangible or
intangible, provided by DNR to the Contractor.
2.7.3 Comply with DNR's instructions for the timely transfer of any active files and work product produced by the
Contractor under this Contract.
2.7.4 Cooperate in good faith with DNR, its employees, agents and contractors during the transition period
between the notification of termination and the substitution of any replacement contractor.
2.7.5 Immediately return to DNR any payments made by DNR for services that were not rendered by the
Contractor.
2.8 Rights in incomplete products. In the event the Contract is terminated, all finished or unfinished documents, data,
reports, or other materials prepared by the Contractor under this Contract shall, at the option of DNR, become DNR's
property and the Contractor shall be entitled to receive just and equitable compensation for any satisfactory work
completed on such documents and other material.
Section 3 CONFLICT BETWEEN SPECIAL AND GENERAL CONDITIONS
If a General Condition conflicts with a Special Condition,they shall be construed, if possible, so that effect is given to both
provisions. If the conflict between the provisions is irreconcilable, then the Special Condition shall prevail as an exception to
the General Condition.
Section 4 INDEPENDENT CONTRACTOR
The status of the Contractor shall be that of an independent contractor. The Contractor, and its employees and agents
performing under this Contract are not employees or agents of the State or any agency, division or department of the State.
Neither the Contractor nor its employees shall be considered employees of DNR or the State for federal or State tax
purposes. DNR will not withhold taxes on behalf of the Contractor. Contractor shall be responsible for payment of all taxes in
connection with any income earned from performing this Contract.
Section 5 CONFLICT OF INTEREST
5.1 The Contractor covenants that the Contractor presently has no interest and shall not acquire any interest, direct and
indirect, which would conflict in any manner or degree with the performance of services required under this Contract.
The Contractor further covenants that in the performance of this Contract no person having any such interest shall be
employed.
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5.2 During the term of this Contract, Contractor shall not provide services that would create a conflict of interest with the
Contractor's duties set out in this Contract. In determining whether a particular activity creates an unacceptable
conflict of interest, situations in which an unacceptable conflict shall be deemed to exist shall include, but not to be
limited to, any of the following:
5.2.1 The activity involves the use of the State's or DNR's time, facilities, equipment, and supplies or other
evidences of employment for purposes other than the performance of Contractor's obligations under this
Contract.
5.2.2 The activity involves the receipt of, promise of, or acceptance of money or other consideration by Contractor
from anyone other than the State or DNR for the performance of any acts that Contractor is required or
expected to perform as a part of Contractor's performance under this Contract.
5.2.3 The outside employment or activity is subject to the official control, inspection, review, audit, or enforcement
authority of DNR.
5.3 If the activity creating a conflict of interest is in progress when the term of this Contract begins or is described in
paragraph 5.2.1 or 5.2.2 above, then Contractor shall immediately cease the activity. During the term of this Contract,
Contractor shall not enter into any activity described in paragraph 5.2.3 or which constitutes any other unacceptable
conflict of interest. Contractor shall immediately disclose to DNR the existence of any conflict of interest, including
conflicts of interest which are described in paragraph 5.2.3 and are in progress when the term of this Contract begins.
Section 6 AMENDMENTS
This Contract may be amended only by written mutual consent of the parties.
Section 7 CHOICE OF LAW AND FORUM
The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with this Contract without
regard to the choice of law provisions of Iowa law. In the event any proceeding of a quasi-judicial or judicial nature is
commenced in connection with this Contract, the exclusive jurisdiction for the proceeding shall be brought in Polk County
District Court for the State of Iowa, Des Moines, Iowa, or in the United States District Court for the Southern District of Iowa,
Central Division, Des Moines, Iowa wherever jurisdiction is appropriate. This provision shall not be construed as waiving any
immunity to suit or liability including without limitation sovereign immunity in State or federal court,which may be available to
DNR or the State.
Section 8 SEVERABILITY
If any provision of this Contract is determined by a court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other part or provision of this Contract.
Section 9 ENTIRE AGREEMENT
This Contract constitutes the entire agreement between DNR and the Contractor with respect to the subject matter hereof,
and the Contractor acknowledges that it is entering into the Contract solely on the basis of the terms and conditions herein
contained and not in reliance upon any representation, statement, inducement or promise, whether oral or written, not
contained herein. This Contract supersedes all prior contracts and agreements between DNR and the Contractor for the
services provided in connection with this Contract.
Section 10 ASSIGNMENT AND DELEGATION
This Contract may not be assigned, transferred or conveyed, in whole or in part, without the prior written consent of the j
other party. For the purpose of construing this provision, a transfer of a controlling interest in the Contractor shall be
considered an assignment.
Section 11 REPRESENTATIONS AND WARRANTIES
11.1 Construction of Warranties Expressed in this Contract with Warranties Implied by Law. All warranties made by
the Contractor in all provisions of this Contract and the Proposal by the Contractor, whether or not this Contract
specifically denominates the Contractor's promise as a warranty or whether the warranty is created only by the
Contractor's affirmation or promise, or is created by a description of the materials and services to be provided, or by
provision of samples to DNR, shall not be construed as limiting or negating any warranty provided by law, including
without limitation, warranties which arise through course of dealing or usage of trade. The warranties expressed in
this Contract are intended to modify the warranties implied by law only to the extent that they expand the warranties
applicable to the goods and services provided by the Contractor. The provisions of this Section apply during the term
of this Contract and any extensions or renewals thereof.
11.2 Concepts, Materials, and Works Produced. Contractor represents and warrants that all the concepts, materials
and deliverables produced, or provided to DNR pursuant to the terms of this Contract shall be wholly original with the
Contractor or that the Contractor has secured all applicable interests, rights, licenses, permits or other intellectual
property rights in such concepts, materials and work product produced under this Contract.The Contractor represents
Genesi Conditions-15ESDAQBCIIAM-0001: 10
and warrants that the concepts, materials and work product produced under this Contract, and DNR's use of same,
and the exercise by DNR of the rights granted by this Contract, shall not infringe upon any other work, other than
material provided by the Contract to the Contractor to be used as a basis for such materials, or violate the rights of
publicity or privacy of, or constitute a libel or slander against, any person, firm or corporation and that the concepts,
materials and work product produced under this Contract will not infringe upon the copyright, trademark,trade name,
literary, dramatic, statutory, common law or any other rights of any person, firm or corporation or other entity. The
Contractor represents and warrants that it is the owner of or otherwise has the right to use and distribute any
software, the materials owned by the Contractor and any other materials, work product produced under this Contract
and methodologies used in connection with providing the services contemplated by this Contract.
11.3 Professional Practices. The Contractor represents and warrants that all of the services to be performed hereunder
will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable,
trained and qualified personnel.
11.4 Conformity with Contractual Requirements. The Contractor represents and warrants that the work product
produced under this Contract will appear and operate in conformance with the terms and conditions of this Contract.
11.5 Authority to Enter into Contract. The Contractor represents and warrants that it has full authority to enter into this
Contract and that it has not granted and will not grant any right or interest to any person or entity that might derogate,
encumber or interfere with the rights granted to DNR.
11.6 Obligations Owed to Third Parties. The Contractor represents and warrants that all obligations owed to third
parties with respect to the activities contemplated to be undertaken by the Contractor pursuant to this Contract are or
will be fully satisfied by the Contractor so that DNR will not have any obligations with respect thereto.
11.7 Title to Property. The Contractor represents and warrants that title to any property assigned, conveyed or licensed
to DNR is good and that transfer of title or license to DNR is rightful and that all property shall be delivered free of any
security interest or other lien or encumbrance.
11.8 Industry Standards. The Contractor represents and expressly warrants that all aspects of the goods and services
provided or used by it shall conform to the applicable industry standards in the performance of this Contract.
11.9 Technology Updates. The Contractor represents warrants that it shall continually use and integrate the most current
and up-to-date technology commercially available.
Section 12 CONFIDENTIALITY
12.1 Access to Confidential Data. The Contractor's employees and agents may have access to confidential data
maintained by DNR to the extent necessary to carry out its responsibilities under the Contract. The Contractor shall
presume that all information received pursuant to this Contract is confidential unless otherwise designated by DNR.
The Contractor shall provide to DNR a written description of its policies and procedures, if any exist, to safeguard
confidential information. The Contractor must designate one individual who shall remain the responsible authority in
charge of all data collected, used, or disseminated by the Contractor in connection with the performance of the
Contract. The Contractor shall provide adequate supervision and training to its agents and employees to ensure
compliance with the terms of this Contract. The private or confidential data shall remain the property of DNR at all
times. Failure by the Contractor to submit its confidentiality policies or to comply in any way with the requirements of
this paragraph shall not affect Contractor's obligations to comply with other requirements herein. Nothing in this
paragraph shall be construed to in any way affect the Contractor's obligations to comply with Iowa and DNR statutes
and rules applicable to confidentiality, as well as DNR policies and procedures regarding confidentiality, including
Department of Administrative Services(DAS)and DNR IT Security policies and procedures.
12.2 No Dissemination of Confidential Data. No confidential data collected, maintained, or used in the course of
performance of the Contract shall be disseminated except as authorized by law and with the written consent of DNR,
either during the period of the Contract or thereafter. Any data supplied to or created by the Contractor shall be
considered the property of DNR. The Contractor must return any and all data collected, maintained, created or used
in the course of the performance of the Contract in whatever form it is maintained promptly at the request of DNR.
12.3 Subpoena. In the event that a subpoena or other legal process is served upon the Contractor for records containing
confidential information, the Contractor shall promptly notify DNR and cooperate with DNR in any lawful effort to
protect the confidential information.
12.4 Reporting of Unauthorized Disclosure. The Contractor shall immediately report to DNR any unauthorized
disclosure of confidential information.
12.5 Survives Termination. The Contractor's obligation under this Contract regarding confidential materials and
information shall survive termination of this Contract.
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Section 13 PROPERTY, INTELLECTUAL PROPERTY, PATENT AND COPYRIGHT
13.1 Title to Property. Title to all property furnished by DNR or the State to Contractor to facilitate the performance of this
Contract shall remain the sole property of DNR and the State. All such property shall be used by Contractor only for
purposes of fulfilling its obligations under this Contract and shall be returned to DNR upon the earliest of completion,
termination, or cancellation of this Contract or at DNR's request. Contractor acknowledges that it shall acquire no
interest or rights in and to such property. Except as expressly provided in this Contract, Contractor shall not disclose
or use such property for any purpose, including pledging or encumbering it, selling or using it for monetary gain, using
it to compile mailing lists, solicit business or pursue other business activities. Title to all property purchased by
Contractor, for which Contractor has been reimbursed or paid by DNR under this Contract, shall pass to and vest in
the State, except as otherwise provided in this Contract.
13.2 Care of Property. Contractor shall be responsible for the proper custody and care of any DNR-owned property,
including data, databases, software, interfaces, hardware, telecommunications lines and equipment, intellectual property
and DNR property furnished for Contractor's use in connection with the performance of the Contract. Contractor shall
exercise its best efforts to prevent damage to all such property and shall, at DNR's request, restore damaged property to
its condition prior to the damage at the sole expense of Contractor. Such restoration shall be complete when judged
satisfactory by DNR. In the event such property cannot be restored to DNR's satisfaction, Contractor shall reimburse
DNR for any loss or damage to such property caused by Contractor, or any agent, contractor or subcontractor
employed or utilized by Contractor. Contractor shall not take any action that would impair the value of, or goodwill
associated with, the name, property and intellectual property rights of DNR and the State. Contractor shall obtain the
prior advance written approval from DNR prior to Contractor's use of the name, marks or intellectual property rights of
DNR or the State.
13.3 Hardware and Equipment. In the event that any hardware and other equipment owned by Contractor and used in
connection with this Contract is subject to the security interest or a legal or equitable interest by a third party who is
not a party to this Contract, Contractor shall insure in any such transactions that DNR shall be notified of a default
occurring under the instrument and if Contractor does not cure the default within the time allowed, DNR may, in its
sole discretion, cure the default by Contractor and assess or set off all costs associated with affecting cure, including
the amount in default and reasonable attorneys fees against Contractor.
13.4 Ownership of Deliverables and Intellectual Property. Contractor agrees that the Deliverables and all intellectual
property rights and proprietary rights arising out of, embodied in, or related to, such Deliverables, shall become and
remain the sole and exclusive property of the DNR and the State. Contractor hereby irrevocably transfers, assigns and
conveys to the DNR and the State all right, title and interest in and to such Deliverables and intellectual property rights
and proprietary rights. Contractor shall take all actions as may be necessary or requested by the DNR to carry out and
effect such transfer, assignment and conveyance. Contractor represents and warrants that the DNR and the State shall
acquire good and clear title to such Deliverables, free from any claims, liens, security interests, encumbrances or other
rights or interests of Contractor or of any third party. The DNR and the State shall have the right to obtain and hold
copyrights, patents or such other registrations or intellectual property protections as may be desirable or appropriate to
the subject matter, and any extensions or renewals thereof. Contractor shall assist the DNR and the State to obtain and
secure copyrights, patents or other intellectual property rights, registrations or protections with respect to all such
Deliverables in the United States and any other countries. Contractor agrees to execute all papers and to give all facts
known to it necessary to secure United States or foreign country copyrights and patents, and to transfer or cause to
transfer to the DNR and the State all the right, title and interest in and to such Deliverables. Contractor also agrees to
waive and not assert any moral rights it may have with regard to such Deliverables. The Contractor shall not retain any
property interests or other rights in and to such Deliverables and shall not use such Deliverables, in whole or in part,for
any purpose, without the prior written consent of the DNR and the payment of such royalties or other compensation as
the DNR deems appropriate. As the owner of such Deliverables, the DNR and the State may, without limitation: (1)
adapt, change, modify, edit or use the Deliverables as the DNR or the State sees fit, including in combination with the
works of others, prepare derivative works based on the Deliverables, and publish, display and distribute throughout the
world any Deliverable(s)in any medium, whether now known or later devised, including, without limitation, any digital or
optical medium, and (ii)make, use, sell, license, sublicense,or lease the Deliverables and any intellectual property rights
therein or related thereto without payment of additional compensation to Contractor.
13.5 Further Assurances. At the DNR's request, Contractor shall execute and deliver such instruments and take such
other action as may be requested by the DNR to establish, perfect or protect the State's and the DNR's rights in and
to the Deliverables and to carry out the assignments, transfers and conveyances required by this Contract.
Contractor shall execute any instruments, provide all facts known to it, and do all other things requested by the DNR
(both during and after the term of this Contract) in order to vest more fully in the State and the DNR any and all
ownership rights and intellectual property rights in and to the Deliverables. In the event the DNR is unable, after
reasonable effort, to secure Contractor's signature on any letters, patent, copyright, or other analogous protection
relating to the Deliverables, for any reason whatsoever, Contractor hereby irrevocably designates and appoints the
DNR, and its duly authorized officers, employees and agents, as Contractor's agent and attorney-in-fact, to act for
General Conditions-15ESDAQBCIIAM-0001: 12
and in its behalf to execute and file any such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright registrations, and other analogous protection,
including extensions and renewals thereon,with the same legal force and effect as if executed by Contractor.
13.6 Disputes. In any dispute over ownership or licensing rights, Contractor shall have the burden of proving prior or
independently developed rights by clear and convincing proof.
Section 14 JOINT AND SEVERAL LIABILITY
If the Contractor is a joint entity, consisting of more than one individual, partnership, corporation or other business
organization, then all such entities shall be jointly and severally liable for carrying out the activities and obligations of this
Contract, and for any default activities and obligations.
Section 15 WAIVER
Except as specifically provided for in a waiver signed by duly authorized representatives of DNR and the Contractor, failure
by either party at any time to require performance by the other party or to claim a breach of any provision of the Contract
shall not be construed as affecting any subsequent right to require performance or to claim a breach.
Section 16 NOTICE
16.1 Any and all notices, designations, consents, offers, acceptances or any other communication provided for herein shall
be given in writing by registered or certified mail, return receipt requested, by receipted hand delivery, by Federal
Express, courier or other similar and reliable carrier which shall be addressed to each party as set forth as follows in
Section 1, Special Conditions, of this Contract.
16.2 Each such notice shall be deemed to have been provided:
16.2.1 At the time it is actually received;
16.2.2 Within one day in the case of overnight hand delivery, courier or services such as Federal Express with
guaranteed next day delivery;or,
16.2.3 Within five days after it is deposited in the U.S. Mail in the case of registered U.S. Mail.
16.3 From time to time, the parties may change the name and address of a party designated to receive notice. Such
change of the designated person shall be in writing to the other party and as provided herein.
Section 17 CUMULATIVE RIGHTS
The various rights, powers, options, elections and remedies of any party provided in this Contract, shall be construed as
cumulative and not one of them is exclusive of the others or exclusive of any rights, remedies or priorities allowed either
party by law, and shall in no way affect or impair the right of any party to pursue any other equitable or legal remedy to
which any party may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged.
Section 18 TIME IS OF THE ESSENCE
Time is of the essence with respect to the performance of the terms of this Contract.
Section 19 RECORD RETENTION AND ACCESS
The Contractor shall maintain books, records and documents which sufficiently and properly document and calculate all
charges billed to DNR throughout the term of this Contract for a period of at least 5 years following the date of final payment
or completion of any required audit, whichever is later. Records to be maintained include both financial records and service
records: The Contractor shall permit the Auditor of the State of Iowa or any authorized representative of the State and where
federal funds are involved, the Comptroller General of the United States or any other authorized representative of the United
States government, to access and examine, audit, excerpt and transcribe any directly pertinent books, documents, papers,
electronic or optically stored and created records or other records of the Contractor relating to orders, invoices or payments
or any other documentation or materials pertaining to this Contract, wherever such records may be located. The Contractor
shall not impose a charge for audit or examination of the Contractor's books and records.
Section 20 SOLICITATION
The Contractor warrants that no person or selling agency has been employed or retained to solicit and secure this Contract
upon an agreement or understanding for commission, percentage, brokerage or contingency excepting bona fide employees
or selling agents maintained for the purpose of securing business.
Section 21 OBLIGATIONS BEYOND CONTRACT TERM
This Contract shall remain in full force and effect to the end of the specified term or until terminated or canceled pursuant to
this Contract. All obligations of DNR and the Contractor incurred or existing under this Contract as of the date of expiration,
termination or cancellation will survive the termination, expiration or conclusion of this Contract.
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Section 22 DELAY OR IMPOSSIBILITY OF PERFORMANCE
The Contractor shall not be in default under this Contract if performance is delayed or if Contractor may not reasonably
perform the Contract due to an act of God, flood, fire or similar events. In each such case, the delay or impracticability must
be beyond the reasonable control and anticipation of the Contractor, and without the fault or negligence of the Contractor. If
delay results from a subcontractor's conduct, from the Contractor's negligence or fault, or from circumstances which by the
exercise of reasonable diligence the Contractor should have been able to anticipate or prevent, then the Contractor shall be
in default and this paragraph shall not be applicable. It shall be the responsibility of the Contractor to prove that
performance was delayed or impracticable within the meaning of this paragraph.
Section 23 SUPERCEDES FORMER CONTRACTS OR AGREEMENTS
Unless this Contract is an amendment to a contract entered into between DNR and Contractor and is designated as such,
then this Contract supersedes all prior contracts or agreements between DNR and the Contractor for the services provided
in connection with this Contract.
Section 24 USE OF THIRD PARTIES AND SUBCONTRACTORS
Contractor may not contract with third parties for the performance of any of Contractor's obligations under this Contract,
unless and then only to the extent that the Special Conditions of this Contract specify otherwise. If the Special Conditions
provide for a subcontractor or subcontractors, then the following conditions shall apply:
24.1 All subcontracts shall be subject to prior approval by the DNR. The DNR's consent shall not be deemed in any way to
provide for the incurrence of any obligation of DNR in addition to the remuneration agreed upon in this Contract. Any
subcontract to which DNR has consented shall be in writing and shall in no way alter the terms and conditions of this
Contract.
24.2 The Contractor may enter into subcontracts to complete the work required by this Contract provided that the
Contractor remains responsible for all services performed under this Contract. No subcontract or delegation of work
shall relieve or discharge the Contractor from any obligation, provision, or liability under this Contract. The Contractor
shall remain responsible for such performance and shall be fully responsible and liable for all acts or omissions of any
subcontractor.
24.3 All restrictions, obligations and responsibilities of the Contractor under this Contract also shall apply to the
subcontractors.
24.4 DNR shall have the right to request the removal of a subcontractor from the Contract for good cause. The Contractor
shall indemnify, defend and hold harmless DNR and the State from and against any and all claims, demands,
liabilities, suits, actions, damages, losses, costs and expenses of every kind and nature whatsoever arising as a result
of Contractor's breach of any subcontract in which it enters, including Contractor's failure to pay any and all amounts
due by Contractor to any subcontractor.
24.5 Each subcontract shall contain provisions for DNR access to the subcontractor's books, documents, and records and
for inspections of work, as required of Contractor herein.
24.6 Any action of a subcontractor, which, if done by Contractor, would constitute a breach of this Contract, shall be
deemed a breach by Contractor and have the same legal effect.
24.7 If delay results from a subcontractor's conduct,from the Contractor's negligence or fault, or from circumstances which
by the exercise of reasonable diligence the Contractor should have been able to anticipate or prevent, then the
Contractor shall be in default and Section 22, "Delay or Impossibility of Performance," shall not be applicable.
24.8 If the Contract is subject to the provisions of Iowa Code chapter 8F, then the Contractor shall comply with Iowa Code
chapter 8F with respect to any subcontract Contractor enters into pursuant to this Contract. Any compliance
documentation, including but not limited to certification, received from any subcontractor shall be forwarded to DNR
immediately.
Section 25 SELF-INSURANCE BY THE STATE OF IOWA
Pursuant to Iowa Code chapter 669, DNR and the State are self-insured against all risks and hazards related to this
Contract. No separate fund has been established to provide self-insurance, and the State is not obligated to establish any
such fund during the term of this Contract.
Section 26 INDEMNIFICATION
The Contractor agrees to indemnify and hold harmless the State and DNR, its officers, employees and agents appointed
and elected and volunteers from any and all costs, expenses, losses, claims, damages, liabilities, settlements and
judgments, related to or arising from: any breach of this Contract; any negligent, intentional or wrongful act or omission of
the Contractor or any agent or subcontractor utilized or employed by the Contractor; the Contractor's performance or
attempted performance of this Contract, including any agent or subcontractor utilized or employed by the Contractor; any
failure by the Contractor to comply with the Compliance with the Law provision of this Contract; any failure by the Contractor
General Conditions-15ESDAQBC11AM-0001: 14
to make all reports, payments and withholdings required by federal and State law with respect to social security, employee
income and other taxes, fees or costs required by the Contractor to conduct business in the State; any infringement of any
copyright, trademark, patent, trade dress, or other intellectual property right; or any failure by the Contractor to adhere to the
confidentiality provisions of this Contract.
Section 27 IMMUNITY FROM LIABILITY
Every person who is a party to the Contract is hereby notified and agrees that the State, DNR, and all of their employees,
agents, successors, and assigns are immune from liability and suit for Contractor's and subcontractors' activities involving
third parties arising from the Contract.
Section 28 NON-SUPPLANTING REQUIREMENT
To the extent required by federal or State law, federal and State funds made available under this Contract shall be used to
supplement and increase the level of State, local, and other non-federal funds that would in the absence of such federal and
State funds be made available for the programs and activities for which funds are provided and will in no event take the
place of State, local, and other non-federal funds.
Section 29 CERTIFICATION REGARDING SALES AND USE TAX
By executing this Contract, the Contractor certifies that it is either (a) registered with the Iowa Department of Revenue,
collects and remits sales and use taxes as required by Iowa Code chapter 423; or (b) not a "retailer' or a "retailer
maintaining a place of business in this state" as those terms are defined in Iowa Code sections 423.1(42) and (43). The
Contractor also acknowledges that the DNR may declare the Contract void if the above certification is false. The Contractor
also understands that fraudulent certification may result in the DNR filing action for damages for breach of contract.
Section 30 TAXES
The State is exempt from federal excise tax, and no payment will be made for any taxes levied on Contractor's employees'
wages. The State is exempt from State and local sales and use taxes on the Deliverables.
Section 31 EQUAL EMPLOYMENT PROVISIONS
The Contractor has read and understands the provisions in Exhibit A, Equal Employment Opportunity, attached hereto and
made part of this Contract by this reference, and the Contractor agrees to conform to the requirements contained therein.
Section 32 FEDERALLY-FUNDED AGREEMENTS
If this Contract is funded by federal monies, then the Contractor has read and understands the provisions of Exhibit B,
Additional Requirements for Federally-Funded Agreements, attached hereto as Exhibit C and made part of this Contract by
this reference, and the Contractor agrees to conform to the requirements contained therein.
Section 33 RESERVED
Section 34 INFORMATION TECHNOLOGY SECURITY
The Contractor and all Contractor personnel shall comply with Iowa information technology security statutes, rules and
policies. By signing this Contract, the Contractor acknowledges that the Contractor has read and understands the provisions
of the information technology security policies adopted by the Iowa Department of Administrative Services (DAS) and DNR
in effect on the date of signing. The Contractor further agrees to read and abide by any revised DAS and DNR policies,
posted on the respective agency websites that come into effect during the term of this Contract.
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C,! 15ESDAQBCIIAM-0001 I
EXHIBIT A
Equal Employment Opportunity
Dubuque agrees to the following:
1. Dubuque shall not discriminate against any employee or applicant for employment because of race, creed, color,
religion, sex, national origin, age, gender identity, gender orientation, pregnancy, family status, marital status or mental
or physical disability. Dubuque shall take affirmative action to ensure that applicants are employed and that employees
are treated, during employment, without regard to their race, creed, color, religion, sex, national origin, age, gender
identity, gender orientation, pregnancy, family status, marital status or mental or physical disability except where mental
or physical disability relates to a bona fide occupational qualification reasonably necessary to the normal operation of
Dubuque's business. Such action shall include but not be limited to, the following: employment, upgrading, demotion
or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation and
selection for training, including apprenticeship. Dubuque agrees to post notices, setting forth provisions of this
nondiscrimination clause, in conspicuous places available to employees and applicants for employment.
2. Dubuque shall in all solicitations or advertisements for employees, placed by or on behalf of Dubuque, state that all
qualified applicants shall receive consideration for employment without regard to race, creed, color, religion, sex,
national origin, age, gender identity, gender orientation, pregnancy, family status, marital status or mental or physical
disability except where mental or physical disability is a bona fide occupation qualification reasonably necessary to the
normal operation of Dubuque's business.
3. Dubuque shall comply with all relevant provisions of the Iowa Civil Rights Act of 1965, as amended, Iowa Executive
Order 15 of 1973, Chapter 19B, Code of Iowa, Federal Executive Order 11246 of 1965, as amended by Federal
Executive Order 11376 of 1967, and Title VI of the Civil Rights Act of 1964, as amended. Dubuque shall furnish all
information and reports requested by the State or required by,or pursuant to, the rules and regulations thereof and shall
permit access to payroll and employment records by the State for purposes of investigation to ascertain compliance with
such rules, regulations or requests, or with this nondiscrimination clause.
4. In the event of Dubuque's noncompliance with the nondiscrimination clauses of this Contract or with any of the
aforesaid rules, regulations or requests, this Contract may be canceled, terminated or suspended in whole or in part. In
addition, the State may take such further action, and such other sanctions may be imposed and remedies invoked, as
provided by the Iowa Civil Rights Act of 1965, as amended, Chapter 216, Code of Iowa, or as otherwise provided by
law.
5. Dubuque shall include the provisions of paragraphs 1 through 4 hereof in every subcontract, unless specifically
exempted by approval of the State, so that such provisions shall be binding on each subcontract. Dubuque shall take
such action with respect to any subcontract as the State may direct as a means of enforcing such provisions, including
sanctions for noncompliance; provided, however, that in the event Dubuque becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such direction by the State, Dubuque may request the State to
enter into such litigation to protect the interests of the State.
6. In accordance with the provisions of 541 Iowa Administrative Code Chapter 4:
o Dubuque or subcontractor is prohibited from engaging in discriminatory employment practices forbidden by federal
and State law, executive orders and rules of the department of management, which pertain to equal employment
opportunity and affirmative action.
o Dubuque or subcontractor may be required to have on file a copy of the affirmative action program, containing
goals and time specifications. These contractual provisions shall be fully enforced. Any breach of them shall be
regarded as a material breach of the Contract.
o Compliance with the provisions of Iowa Code section 196.7 and all applicable rules of the department of
management prior to the execution of the Contract shall be a condition of the Contract binding upon Dubuque or
service provider, its successors, and assignees.
o Failure to fulfill the nondiscrimination requirements of this Contract or any of the rules and orders may cause the
Contract to be canceled, terminated, or suspended in whole or in part, and Dubuque or service provider may be
declared ineligible for future State contracts in accordance with authorized procedure or Dubuque may be subject to
other sanctions as provided by law or rule.
o Dubuque may be required to submit to the department of management or the DNR a copy of its affirmative action
plan containing goals and time specifications.
o Dubuque shall be able to demonstrate to the satisfaction of the department of management or the DNR that its
affirmative action program is productive.
o Dubuque may be required to submit reports as requested by the department of management. The department of
management may request other relevant information from Dubuque at any time.
o The department of management may undertake a compliance review of Dubuque and the department of
management may take action, as appropriate, to seek to terminate contracts or funding found to be in violation of
the rules.
General Gordt�ons Exhibit A-15ESDAQBCIIAM-0001: 16
EXHIBIT B
Additional Requirements for Federally-funded Agreements
1. Suspension and Debarment. Entities identified on the Excluded Parties List System at htto://www.epis.gov are
ineligible to enter into contracts with DNR.
Dubuque shall fully comply with Subpart C of 2 CFR Part 180 and 2 CFR Part 1532 entitled "Responsibilities of
Participants Regarding Transactions(Doing Business with Other Persons)." Dubuque is responsible for ensuring that
any lower tier covered transaction as described in Subpart B of 2 CFR Part 180 and 2 CFR Part 1532, entitled "Covered
Transactions,"includes a term or condition requiring compliance with Subpart C. Dubuque is responsible for further
requiring the inclusion of a similar term or condition in any subsequent lower tier covered transactions. Dubuque
acknowledges that failing to disclose the information as required at 2 CFR 180.335 may result in the delay or negation
of this assistance agreement,or pursuance of legal remedies, including suspension and debarment.
Dubuque may access the Excluded Parties List System at www.eols.gov. This term and condition supersedes EPA
Form 5700-49, "Certification Regarding Debarment, Suspension, and Other Responsibility Matters."
2. Lobbying Restrictions. Dubuque shall comply with all certification and disclosure requirements prescribed by 31
U.S.C. Section 1352 and any implementing regulations and shall be responsible for ensuring that any subcontractor
fully complies with all certification and disclosure requirements.
3. Pro-Children Act of 1994. Public Law 103-227, also known as the Pro-Children Act of 1994 (Act), requires that
smoking not be permitted in any portion of any indoor facility owned or leased or contracted for by an entity and used
routinely or regularly for the provision of health, day care, early childhood development services, education or library
services to children under the age of 18, if the services are funded by federal programs either directly or through State
or local governments, by federal grant, contract, loan or loan guarantee. Federal programs include grants, cooperative
agreements, loans or loan guarantees and contracts. The law also applies to children's services that are provided in
indoor facilities that are constructed, operated or maintained with such federal funds. The law does not apply to
children's services provided in private residences; portions of facilities used for inpatient drug or alcohol treatment;
service providers whose sole source of applicable federal funds is Medicare or Medicaid; or facilities (other than clinics)
where WIC coupons are redeemed. Failure to comply with the provisions of the law may result in the imposition of a civil
monetary penalty of up to $1,000 for each violation and/or the imposition of an administrative compliance order on the
responsible party. Dubuque certifies that it will comply with the requirements of the Pro-Children Act of 1994 and will
not allow smoking within any portion of any indoor facility used for the provision of services for children as defined by
the Act.
4. Certified Audits. Local governments and non-profit sub-recipient entities that expend $500,000 or more in a year in
federal awards (from all sources) shall have a single audit conducted for that year in accordance with the provisions of
OMB Circular A-133 "Audit of States, Local Governments, and Non-Profit Organizations."A copy of the final audit report
shall be submitted to DNR if either the schedule of findings and questioned costs or the summary schedule of prior audit
findings includes any audit findings related to federal awards provided by DNR. If an audit report is not required to be
submitted per the criteria above, the sub-recipient must provide written notification to DNR that the audit was conducted
in accordance with government auditing standards and that neither the schedule of findings and questioned costs nor
the summary schedule of prior audit findings includes any audit findings related to federal awards provided by the DNR.
See A-133 Section 21 for a discussion of sub-recipient versus vendor relationships.
5. Drug Free Work Place. Dubuque shall provide a drug free workplace in accordance with the Drug Free Workplace Act
of 1988 and all applicable regulations.
General Conditions Exhibit B-15ESDAQBCIIAM-0001: 17