About the Dam
Hands Mill Dam, located in and owned by the Town of Washington, impounds a segment of the Jail Branch, a tributary to the Winooski River. Constructed to impound more than 500,000 cubic feet, it is subject to regulation under 10 V.S.A. §1082 and falls under the jurisdiction of the Vermont Dam Safety Program. State ID number is 225.01. Its initial build date is unknown, but there was a mill on site as early as 1866 that may have used an early timber dam for mechanical power. Shortly after the November 1927 flood, the dam was reconstructed with concrete and the mechanical power feature was lost. Hands Mill is a classified as a Significant Hazard potential dam and recent Dam Safety reports indicate that a sudden failure could cause “probable loss of life and property damage.” This potential loss of life may trigger a reclassification to “High Hazard” under Vermont’s new Dam Safety regulations which are scheduled to launch in 2020 and 2022. Compounding the hazard classification risks is the dam’s current condition. The overall condition of the dam is poor, partially breached and continues to deteriorate and progressively breach. Winooski NRCD is working in partnership with the Town of Washington, the United States Fish and Wildlife Service, the Vermont Department of Fish and Wildlife, and the Vermont Department of Environmental Conservation to launch Phase 1 – Preliminary design (30%) to remove Hands Mill Dam and restore the upstream channel for hazard mitigation, aquatic organism passage, stream equilibrium, and water quality. The full project scope will later include 100% design for dam removal, stream bed and bank remediation, floodplain and wetland restoration, and historical documentation.
Project History
Phase 1: 30% Concept Design
Winooski NRCD initially hired Stone Environmental, Inc. to perform field assessment work and develop 30% Concept Designs for the removal of Hands Mill Dam and restoration of the Jail Branch within the vicinity of the dam. Winooski NRCD also hired UVM’s Consulting Archeology program to develop an Historical and Archeological Resources Report. This phase was supported with funding from the Vermont Department of Environmental Conservation’s Ecosystem Restoration Grant Program, the Vermont Fish and Wildlife Department’s State Wildlife Grant, and the Lake Champlain Basin Program’s Covid-19 Relief grant.
Phase 2: 100% Final Design
The Town of Washington accepted proposals from consulting engineers who are experienced in dam removal design and licensed to practice in Vermont to complete final designs for removal of Hands Mill Dam in Washington, VT. Proposals were accepted through February 28, 2021.
The Town of Washington accepted quotes from consulting archeological firms who are experienced in dam removal, Section 106 review, and licensed to practice in Vermont to provide Phase 1 Archeological Survey, and Phase 2 Archeological Evaluation services as described in the attached Request for Quotes. Quotes were accepted through March 8, 2021.
Flood Event Partially Destroys the Dam
On July 10, 2023 the dam failed as a result of a flood event. The dam had already been partially breached by this point. But the failure of the dam resulted in the need to redesign the plans for its removal. Additionally, it became clear that work needed to be completed upstream of the dam to repair the channel and floodplain.
Phase 3: Dam Removal
Redesign of Removal Plans
The plans for the removal of the dam were re-drawn and in place by June 2024. A contractor was selected to remove the dam and repair the channel and floodplain. We are hopeful that construction will begin the week of August 12, 2024.
****NOTICE: Invitation to Bid****
Winooski Natural Resources Conservation District
Project Title: Hands Mill Dam Removal, Washington, Vermont
Contact Information*: Daniel Koenemann, Winooski Natural Resources Conservation District (WNRCD), District Manager, Daniel@WinooskiNRCD.org | (802) 778-3178
*Winooski NRCD is acting as project manager on behalf of the dam owner, the Town of Washington, Vermont
Project Schedule:
July 26, 2024 RFP released
July 31, 2024 Deadline for Questions
August 2, 2024, 11:59 PM Receive proposals from Engineering Oversight Contractor
(DUE DATE)
August 5, 2024 Award Notification
August 6-9, 2024 Pre-Construction Meeting
August 12, 2020 Construction Start Date
Project Background
Hands Mill Dam, located in the Town of Washington, Orange County, Vermont, impounded a segment of the Jail Branch, a tributary to the Winooski River. Its initial build date is unknown, but there was a mill on site as early as 1866 that may have used an early timber dam for mechanical power. Shortly after the November 1927 flood, the dam was reconstructed with concrete and the mechanical power feature was lost. The drainage area for the dam is approximately 6.6 square miles, 84% forested, 8% agricultural, 4% developed, 2% shrubs and grasses, and 2% wetlands. A large volume of sediment was impounded behind the dam and the brook wound through well vegetated scrub/shrub wetland for roughly 2.2 acres upstream.
The dam resides on a 3.5-acre property owned by the Town of Washington (Town Parcel #7105.000). The property abuts five private residential properties and is bordered on the north by Woodchuck Hollow Road and on the southwest by West Corinth Road. Approximately 250 feet downstream from the dam, the river flows through an open-bottom culvert under Woodchuck Hollow Road.
Designed to impound more than 500,000 cubic feet, it is subject to regulation under 10 V.S.A. §1082 and falls under the jurisdiction of the Vermont Dam Safety Division. Hands Mill was a Class 2 “Significant Hazard” dam and a 2007 Dam Safety report indicated that a sudden failure would cause “probable loss of life and property damage.” Compounding the hazard classification risk was the dam’s condition. The dam had technically failed because it was overtopped even in average flow conditions. Since at least 1984, respective dam owners have received consistent inspection reports emphasizing that the dam is in poor condition and was continuing to deteriorate. Reports recommended that the owner retain an engineer to either reconstruct or remove the dam and restore the upstream channel.
Planning for the removal of the dam and the restoration of the upstream floodplain began in 2020. On July 10, 2023, however, the partially breached, Class 2 “significant hazard” dam experienced a full breach during a flood event. Not only did the dam fail completely, releasing all of the impounded water and most of the impounded sediments, but the flows also resulted in a displacement of the channel. Currently, the Jail Branch flows through the breached dam. Impounded sediments remain upstream of the dam. Portions of the breached dam remain on site, including a compromised section of dam, an intact section of dam, concrete sections in the river, and portions of the concrete training wall.
The plans for the removal of the partially failed dam were scrapped, further study was conducted, and new plans for the removal of the completely failed dam were drawn up. These plans were completed in June 2024. These plans (available here) include the removal of dam remnants, the removal of the remaining impounded sediments, minor adjustments to the channel location, the restoration of the upstream floodplain, and the stabilization of the newly exposed substrate adjacent to the new channel location. A construction contractor has been selected to perform this work.
Scope of Services Requested
Task 1: Pre-Construction Support & Project Management
- The engineering oversight contractor will facilitate an on-site pre-construction meeting attended by engineering oversight contractor staff and including the construction contractor, regulators, and WNRCD staff. The engineering oversight contractor will create an agenda, record meeting minutes, and share meeting minutes with attendees following the on-site meeting. This task must also include time for follow-up time coordination with regulators, the construction contractor, and WNRCD. The proposed budget should also include mileage for travel to and from the site.
- The engineering oversight contractor will review the water control plan and other submittals provided by the construction contractor.
- The engineering oversight contractor will create a permit requirements checklist to be used during the construction phase.
- The engineering oversight contractor will also be prepared for as-needed project management tasks and communications.
Task 2: Construction Oversight
- The engineering oversight contractor will provide on-site construction oversight for critical construction activities. This oversight will include at least fifteen site visits (corresponding with, at a minimum, project stakeout/stakeout confirmation, dam removal, channel restoration, rootwad installation, and tributary work), the completion of daily construction logs compiled into weekly reports for the WNRCD and regulatory agencies as needed, hours for project management and coordination (including availability for phone calls and email communication with the construction contractor, WNRCD, and regulatory agencies during construction when not on site), one on-site final project walk through with the construction contractor, WNRCD, the project engineer, and identification and documentation of punch list items.
- Construction oversight time can also be broken into shorter, more frequent, site visits depending on the project needs. As such, the proposed budget should also include mileage for travel to and from the site, with this flexibility in mind.
- The engineering oversight contractor will collect post-removal imagery for comparison to pre-removal conditions. These images will be made available to the WNRCD, the Town of Washington, and the engineering oversight contractor.
Task 3: As-Built Survey and Construction Phase Close-out
- The engineering oversight contractor will complete an as-built survey after final punch list items have been completed. The engineering oversight contractor should take into consideration the size of the site, the scope of this task when budgeting.
- The engineering oversight contractor will complete project close-out tasks, including notices from the engineering oversight contractor to regulatory agencies, such as Dam Safety, and certifying the completion of the project per design.
Schedule
The engineering oversight contractor should anticipate the the following timeline: Task 1 (Pre-Construction Support & Project Management) responsibilities are assumed immediately upon the signing of the contract and notice to proceed; Task 2 (Construction Oversight) activities will take place during August and September 2024; and Task 3 (As-Built Survey and Construction Phase Close-out) activities will be completed in October 2024.
Permits
- MOA Winooski NRCD and Vermont State Historic Preservation Office (Pending)
- Vermont DEC Authorization to Discharge under General Permit 3-9020
- Vermont DEC Approving Alteration of Dam
- Vermont DEC Stream Alteration Authorization
- Town of Washington Floodplain Development Permit (1, 2)
- U.S. Army Corps of Engineers Section 404 General Permit (Pending)
Proposal Submission Guidelines
All proposals must include:
- The name and contact information of the engineering firm who will perform the work, and their firm (if applicable). A list of staff who will be part of the project team, brief description of their qualifications, and their hourly rates. The resume of the engineering firm and others expected to work with the engineering firm.
- The fee requested by the engineering firm with a cost breakdown by task and split across labor, supplies, with specifications for project or services including quantity, design, etc., and other categories as appropriate. All costs associated with developing or submitting documents in response to this solicitation and/or in providing oral or written clarification of its content shall be borne by the bidder.
- A description of the engineering firm’s relevant experience demonstrating familiarity and experience with similar projects. Photos or diagrams of the consultant’s work may be added as a supplement to this section.
- A list of at least two references familiar with the engineering firm, including the name, email, and telephone number of each reference.
- A proposed timeline with identified milestones for completing the scope of services requested, including a final delivery or completion date. Please use the project schedule for guidance.
- A description of the approach to be taken in addressing the scope of services detailed above. Specific tasks need to be thoroughly described and any proposed additions or changes from this request clearly highlighted.
- A description of any tasks that will be subcontracted, including the names of possible subcontractors.
Please email proposal submissions in PDF or Word format to contact listed above. Paper copies will not be considered. Proposals will be accepted up until the due date as listed above. Please submit all questions to the contact listed above. Proposals should note and explain/justify all confidential or proprietary items in their responses.
Project Budget
Bids exceeding $60,000 will not be considered. All payments will be made after satisfactory completion of each deliverable as outlined in an agreement between the Winooski NRCD and the selected entity. Note that contract payments are contingent upon review, approval and acceptance of contract deliverables by Winooski NRCD staff.
Type of Contract
Winooski NRCD anticipates that, if a contract is entered into as a result of this RFP, it will be a contract of “not-to-exceed amounts” for the tasks identified in the Scope of Services.
Site Visits
Parking is available on the road. Private property should be respected.
Contractor Provisions
All contractors must comply with any and all applicable laws, statutes, ordinances, rules, regulations, and/or requirements of federal, state, and local governments and agencies thereof which relate to, or in any manner affect the performance of this agreement. Those requirements imposed upon the Winooski NRCD, as recipients of funds are thereby passed along to the contractor. All contractors must comply with all pertinent federal, state, and local laws and must carry adequate insurance coverage. Selected firm will be expected to meet state minimum standards for worker’s comp, insurance and liability coverage and to comply with all Standard State Contracting Provisions (Attachments A and B). Firms will need to provide Winooski NRCD with a Certificate of Insurance and a W-9 prior to contract execution.
Project Partners and WNRCD
Project partners include representatives from the Town of Washington Select Board, the VTDEC Dam Safety and Watershed Management Programs, VTFW, USFW, The Nature Conservancy, VNRC, and Trout Unlimited. To learn more about Winooski NRCD please visit our website (winooskinrcd.org).
Winooski NRCD is an equal opportunity employer. Review of proposals shall not discriminate on the basis of race, religion, national origin, color or sex. Thank you for your interest!
Attachments
- State Standard Provisions Attachment A
- Federal Provisions Attachment B
Attachment A. Standard Vermont State Provisions for Contracts and Grants
Revised December 7, 2023
1. Definitions: For purposes of this Attachment, “Party” shall mean the Contractor, Grantee, or Subrecipient, with whom the State of Vermont is executing this Agreement and consistent with the form of the Agreement. “Agreement” shall mean the specific contract or grant to which this form is attached.
2. Entire Agreement: This Agreement, whether in the form of a contract, State-funded grant, or Federally-funded grant, represents the entire agreement between the parties on the subject matter. All prior agreements, representations, statements, negotiations, and understandings shall have no effect. Where an authorized individual is either required to click-through or otherwise accept, or made subject to, any electronic terms and conditions to use or access any product or service provided hereunder, such terms and conditions are not binding and shall have no force or effect. Further, any terms and conditions of Party’s invoice, acknowledgment, confirmation, or similar document, shall not apply, and any such terms and conditions on any such document are objected to without need of further notice or objection.
3. Governing Law, Jurisdiction and Venue; No Waiver of Jury Trial: This Agreement will be governed by the laws of the State of Vermont without resort to conflict of laws principles. Any action or proceeding brought by either the State or the Party in connection with this Agreement shall be brought and enforced in the Superior Court of the State of Vermont, Civil Division,
Washington Unit. The Party irrevocably submits to the jurisdiction of this court for any action or proceeding regarding this Agreement. The Party agrees that it must first exhaust any applicable administrative remedies with respect to any cause of action that it may have against the State regarding its performance under this Agreement. Party agrees that the State shall not be required
to submit to binding arbitration or waive its right to a jury trial.
4. Sovereign Immunity: The State reserves all immunities, defenses, rights, or actions arising out of the State’s sovereign status or under the Eleventh Amendment to the United States Constitution. No waiver of the State’s immunities, defenses, rights, or actions shall be implied or otherwise deemed to exist by reason of the State’s entry into this Agreement.
5. No Employee Benefits For Party: The Party understands that the State will not provide any individual retirement benefits, group life insurance, group health and dental insurance, vacation or sick leave, workers compensation or other benefits or services available to State employees, nor will the State withhold any state or Federal taxes except as required under applicable tax laws, which shall be determined in advance of execution of the Agreement. The Party understands that all tax returns required by the Internal Revenue Code and the State of Vermont, including but not limited to income, withholding, sales and use, and rooms and meals, must be filed by the Party, and information as to Agreement income will be provided by the State of Vermont to the Internal Revenue Service and the Vermont Department of Taxes.
6. Independence: The Party will act in an independent capacity and not as officers or employees of the State.
7. Defense and Indemnity:
A. The Party shall defend the State and its officers and employees against all third-party claims or suits arising in whole or in part from any act or omission of the Party or of any agent of the Party in connection with the performance of this Agreement. The State shall notify the Party in the event of any such claim or suit, and the Party shall immediately retain counsel and otherwise provide a complete defense against the entire claim or suit. The State retains the right to participate at its own expense in the defense of any claim. The State shall have the right to approve all proposed settlements of such claims or suits.
B. After a final judgment or settlement, the Party may request recoupment of specific defense costs and may file suit in Washington Superior Court requesting recoupment. The Party shall be entitled to recoup costs only upon a showing that such costs were entirely unrelated to the defense of any claim arising from an act or omission of the Party in connection with the performance of this Agreement.
C. The Party shall indemnify the State and its officers and employees if the State, its officers, or employees become legally obligated to pay any damages or losses arising from any act or omission of the Party or an agent of the Party in connection with the performance of this Agreement.
D. Notwithstanding any contrary language anywhere, in no event shall the terms of this Agreement or any document furnished by the Party in connection with its performance under this Agreement obligate the State to (1) defend or indemnify the Party or any third party, or (2) otherwise be liable for the expenses or reimbursement, including attorneys’ fees, collection costs or other costs of the Party or any third party.
8. Insurance: During the term of this Agreement, Party, at its expense, shall maintain in full force and effect the insurance coverages set forth in the Vermont State Insurance Specification in effect at the time of incorporation of this Attachment C into this Agreement. The terms of the Vermont State Insurance Specification are hereby incorporated by reference into this Attachment C as if fully set forth herein. A copy of the Vermont State Insurance Specification is available at: https://aoa.vermont.gov/Risk-Claims-COI.
9. Reliance by the State on Representations: All payments by the State under this Agreement will be made in reliance upon the accuracy of all representations made by the Party in accordance with this Agreement, including but not limited to bills, invoices, progress reports, and other proofs of work.
10. False Claims Act: Any liability to the State under the Vermont False Claims Act (32 V.S.A. § 630 et seq.) shall not be limited notwithstanding any agreement of the State to otherwise limit Party’s liability.
11. Whistleblower Protections: The Party shall not discriminate or retaliate against one of its employees or agents for disclosing information concerning a violation of law, fraud, waste, abuse of authority, or acts threatening health or safety, including but not limited to allegations concerning the False Claims Act. Further, the Party shall not require such employees or agents to forego monetary awards as a result of such disclosures, nor should they be required to report misconduct to the Party or its agents prior to reporting to any governmental entity and/or the public.
12. Use and Protection of State Information:
A. As between the State and Party, “State Data” includes all data received, obtained, or generated by the Party in connection with performance under this Agreement. Party acknowledges that certain State Data to which the Party may have access may contain information that is deemed confidential by the State, or which is otherwise confidential by law, rule, or practice, or otherwise exempt from disclosure under the State of Vermont Access to Public Records Act, 1 V.S.A. § 315 et seq. (“Confidential State Data”).
B. With respect to State Data, Party shall:
i. take reasonable precautions for its protection;
ii. not rent, sell, publish, share, or otherwise appropriate it; and
iii. upon termination of this Agreement for any reason, Party shall dispose of or retain State Data if and to the extent required by this Agreement, law, or regulation, or otherwise requested in writing by the State.
C. With respect to Confidential State Data, Party shall:
i. strictly maintain its confidentiality;
ii. not collect, access, use, or disclose it except as necessary to provide services to the State under this Agreement;
iii. provide at a minimum the same care to avoid disclosure or unauthorized use as it provides to protect its own similar confidential and proprietary information;
iv. implement and maintain administrative, technical, and physical safeguards and controls to protect against any anticipated threats or hazards or unauthorized access or use;
v. promptly notify the State of any request or demand by any court, governmental agency or other person asserting a demand or request for Confidential State Data so that the State may seek an appropriate protective order; and
vi. upon termination of this Agreement for any reason, and except as necessary to comply with subsection B.iii above in this section, return or destroy all Confidential State Data remaining in its possession or control.
D. If Party is provided or accesses, creates, collects, processes, receives, stores, or transmits Confidential State Data in any electronic form or media, Party shall utilize:
i. industry-standard firewall protection;
ii. multi-factor authentication controls;
iii. encryption of electronic Confidential State Data while in transit and at rest;
iv. measures to ensure that the State Data shall not be altered without the prior written consent of the State;
v. measures to protect against destruction, loss, or damage of State Data due to potential environmental hazards, such as fire and water damage;
vi. training to implement the information security measures; and
vii. monitoring of the security of any portions of the Party’s systems that are used in the provision of the services against
intrusion.
E. No Confidential State Data received, obtained, or generated by the Party in connection with performance under this Agreement shall be processed, transmitted, stored, or transferred by any means outside the United States, except with the express written permission of the State.
F. Party shall notify the State within twenty-four hours after becoming aware of any unauthorized destruction, loss, alteration, disclosure of, or access to, any State Data.
G. State of Vermont Cybersecurity Standard Update: Party confirms that all products and services provided to or for the use of the State under this Agreement shall be in compliance with State of Vermont Cybersecurity Standard Update in effect at the time of incorporation of this Attachment C into this Agreement. The State of Vermont Cybersecurity Standard Update prohibits the use of certain branded products in State information systems or any vendor system, and a copy is available at: https://digitalservices.vermont.gov/cybersecurity/cybersecurity-standards-and-directives
H. In addition to the requirements of this Section 12, Party shall comply with any additional requirements regarding the protection of data that may be included in this Agreement or required by law or regulation.
13. Records Available for Audit: The Party shall maintain all records pertaining to performance under this Agreement. “Records” means any written or recorded information, regardless of physical form or characteristics, which is produced or acquired by the Party in the performance of this Agreement. Records produced or acquired in a machine-readable electronic format
shall be maintained in that format. The records described shall be made available at reasonable times during the period of this Agreement and for three years thereafter or for any period required by law for inspection by any authorized representatives of the State or Federal Government. If any litigation, claim, or audit is started before the expiration of the three-year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved.
14. Fair Employment Practices and Americans with Disabilities Act: Party agrees to comply with the requirement of 21 V.S.A. Chapter 5, Subchapter 6, relating to fair employment practices, to the full extent applicable, and shall include this provision in all subcontracts for work performed in Vermont. Party shall also ensure, to the full extent required by the Americans with Disabilities Act of 1990, as amended, that qualified individuals with disabilities receive equitable access to the services, programs, and activities provided by the Party under this Agreement.
15. Offset: The State may offset any sums which the Party owes the State against any sums due the Party under this Agreement; provided, however, that any offset of amounts due the State of Vermont as taxes shall be in accordance with the procedures more specifically provided in 32 V.S.A. § 3113.
16. Taxes Due to the State: Party certifies under the pains and penalties of perjury that, as of the date this Agreement is signed, the Party is in good standing with respect to, or in full compliance with, a plan to pay any and all taxes due the State of Vermont.
17. Taxation of Purchases: All State purchases must be invoiced tax free. An exemption certificate will be furnished upon request with respect to otherwise taxable items.
18. Child Support: (Only applicable if the Party is a natural person, not a corporation or partnership.) Party states that, as of the date this Agreement is signed, Party is not under an obligation to pay child support or is in good standing with respect to or in full compliance with a plan to pay any and all child support payable under a support order. Party makes this statement with regard to support owed to any and all children residing in Vermont. In addition, if the Party is a resident of Vermont, Party makes this statement with regard to support owed to any and all children residing in any other state or territory of the United States.
19. Sub-Agreements: Party shall not assign, subcontract, or subgrant the performance of this Agreement or any portion thereof to any other Party without the prior written approval of the State. Party shall be responsible and liable to the State for all acts or omissions of subcontractors and any other person performing work under this Agreement pursuant to an agreement with Party or any subcontractor. In the case this Agreement is a contract with a total cost in excess of $250,000, the Party shall provide to the State a list of all proposed subcontractors and subcontractors’ subcontractors, together with the identity of those subcontractors’ workers compensation insurance providers, and additional required or requested information, as applicable, in accordance with Section 32 of The Vermont Recovery and Reinvestment Act of 2009 (Act No. 54), as amended by Section 17 of Act No. 142 (2010) and by Section 6 of Act No. 50 (2011). Party shall include the following provisions of this Attachment C in all subcontracts for work performed solely for the State of Vermont and subcontracts for work performed in the State of Vermont: Section 10 (“False Claims Act”); Section 11 (“Whistleblower Protections”); Section 12 (“Confidentiality and Protection of State Information”); Section 14 (“Fair Employment Practices and Americans with Disabilities Act”); Section 16 (“Taxes Due the State”); Section 18 (“Child Support”); Section 20 (“No Gifts or Gratuities”); Section 22 (“Certification Regarding Debarment”); Section 30 (“State Facilities”); and Section 32.A (“Certification Regarding Use of State Funds”).
20. No Gifts or Gratuities: Party shall not give title or possession of anything of substantial value (including property, currency, travel, and/or education programs) to any officer or employee of the State during the term of this Agreement.
21. Regulation of Hydrofluorocarbons: Party confirms that all products provided to or for the use of the State under this Agreement shall not contain hydrofluorocarbons, as prohibited under 10 V.S.A. § 586.
22. Certification Regarding Debarment: Party certifies under pains and penalties of perjury that, as of the date that this Agreement is signed, neither Party nor Party’s principals (officers, directors, owners, or partners) are presently debarred, suspended, proposed for debarment, declared ineligible, or excluded from participation in Federal programs, or programs supported in whole or in part by Federal funds. Party further certifies under pains and penalties of perjury that, as of the date that this Agreement is signed, Party is not presently debarred, suspended, nor named on the State’s debarment list at: https://bgs.vermont.gov/purchasing-contracting/debarment.
23. Conflict of Interest: Party shall fully disclose, in writing, any conflicts of interest or potential conflicts of interest.
24. Vermont Public Records Act: Party acknowledges and agrees that this Agreement, any and all information obtained by the State from the Party in connection with this Agreement, and any obligations of the State to maintain the confidentiality of information are subject to the State of Vermont Access to Public Records Act, 1 V.S.A. § 315 et seq.
25. Force Majeure: Neither the State nor the Party shall be liable to the other for any failure or delay of performance of any obligations under this Agreement to the extent such failure or delay shall have been wholly or principally caused by acts or events beyond its reasonable control rendering performance illegal or impossible (excluding strikes or lockouts) (“Force Majeure”). Where Force Majeure is asserted, the nonperforming party must prove that it made all reasonable efforts to remove, eliminate or minimize such cause of delay or damages, diligently pursued performance of its obligations under this Agreement, substantially fulfilled all non-excused obligations, and timely notified the other party of the likelihood or actual occurrence of an event
described in this paragraph.
26. Marketing: Party shall not use the State’s logo or otherwise refer to the State in any publicity materials, information pamphlets, press releases, research reports, advertising, sales promotions, trade shows, or marketing materials or similar communications to third parties except with the prior written consent of the State.
27. Termination:
A. Non-Appropriation: If this Agreement extends into more than one fiscal year of the State (July 1 to June 30), and if appropriations are insufficient to support this Agreement, the State may cancel this Agreement at the end of the fiscal year, or otherwise upon the expiration of existing appropriation authority. In the case that this Agreement is funded in whole or in part by Federal funds, and in the event Federal funds become unavailable or reduced, the State may suspend or cancel this Agreement immediately, and the State shall have no obligation to pay Party from State revenues.
B. Termination for Cause: Either party may terminate this Agreement if a party materially breaches its obligations under this Agreement, and such breach is not cured within thirty (30) days after delivery of the non-breaching party’s notice or such longer time as the non-breaching party may specify in the notice.
C. Termination Assistance: Upon nearing the end of the final term or termination of this Agreement, without respect to cause, the Party shall take all reasonable and prudent measures to facilitate any transition required by the State. All State property, tangible and intangible, shall be returned to the State upon demand at no additional cost to the State in a format acceptable to the State.
28. Continuity of Performance: In the event of a dispute between the Party and the State, each party will continue to perform its obligations under this Agreement during the resolution of the dispute until this Agreement is terminated in accordance with its terms.
29. No Implied Waiver of Remedies: Either party’s delay or failure to exercise any right, power, or remedy under this Agreement shall not impair any such right, power, or remedy, or be construed as a waiver of any such right, power, or remedy. All waivers must be in writing.
30. State Facilities: If the State makes space available to the Party in any State facility during the term of this Agreement for purposes of the Party’s performance under this Agreement, the Party shall only use the space in accordance with all policies and procedures governing access to, and use of, State facilities, which shall be made available upon request. State facilities will be
made available to Party on an “AS IS, WHERE IS” basis, with no warranties whatsoever.
31. Requirements Pertaining Only to Federal Grants and Subrecipient Agreements: If this Agreement is a grant that is funded in whole or in part by Federal funds:
A. Requirement to Have a Single Audit: The Subrecipient will complete the Subrecipient Annual Report annually within 45 days after its fiscal year end, informing the State of Vermont whether or not a Single Audit is required for the prior fiscal year. If a Single Audit is required, the Subrecipient will submit a copy of the audit report to the Federal Audit Clearinghouse within nine months. If a single audit is not required, only the Subrecipient Annual Report is required. A Single Audit is required if the subrecipient expends $750,000 or more in Federal assistance during its fiscal year and must be conducted in accordance with 2 CFR Chapter I, Chapter II, Part 200, Subpart F. The Subrecipient Annual Report is required to be submitted within 45 days, whether or not a Single Audit is required.
B. Internal Controls: In accordance with 2 CFR Part II, §200.303, the Party must establish and maintain effective internal control over the Federal award to provide reasonable assurance that the Party is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the award. These internal controls should be in compliance with guidance in “Standards for InternalControl in the Federal Government” issued by the Comptroller General of the United States and the “Internal Control Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission.
C. Mandatory Disclosures: In accordance with 2 CFR Part II, §200.113, Party must disclose, in a timely manner, in writing to the State, all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. Failure to make required disclosures may result in the imposition of sanctions which may include disallowance of costs incurred, withholding of payments, termination of the Agreement, suspension/debarment, etc.
32. Requirements Pertaining Only to State-Funded Grants:
A. Certification Regarding Use of State Funds: If Party is an employer and this Agreement is a State-funded grant in excess of $1,000, Party certifies that none of these State funds will be used to interfere with or restrain the exercise of Party’s employee’s rights with respect to unionization.
B. Good Standing Certification (Act 154 of 2016): If this Agreement is a State-funded grant, Party hereby represents: (i) that it has signed and provided to the State the form prescribed by the Secretary of Administration for purposes of certifying that it is in good standing (as provided in Section 13(a)(2) of Act 154) with the Agency of Natural Resources and the Agency of Agriculture, Food and Markets, or otherwise explaining the circumstances surrounding the inability to so certify; and (ii) that it will comply with the requirements stated therein.
(End of Standard Provisions)
Attachment B. Federal Provisions
Some funding used by the CLIENT to reimburse the CONTRACTOR is derived from a Federal award. As a result, the CLIENT, all of the CLIENT’s contractors (including CONTRACTOR), and all of the contractor’s sub-contractors must abide by the following Federal provisions.
Domestic Preferences for Procurement:
Policy: 2 CFR §200.322 – Domestic preferences for procurements
(a) As appropriate and to the extent consistent with law, the non-Federal entity should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award.
(b) For purposes of this section:
(1) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) “Manufactured products” means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
Debarment and Suspension:
(Executive Orders 12549 and 12689) 2 CFR Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards
(H) A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
Termination for Cause:
(B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be affected and the basis for settlement.
Recovered materials:
(J) See § 200.323
2 CFR §200.323 Procurement of recovered materials
A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
Affirmative Action:
(a) The non-Federal entity must take all necessary affirmative steps to assure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.
(b) Affirmative steps must include:
(1) Placing qualified small and minority businesses and women’s business enterprises on solicitation lists;
(2) Assuring that small and minority businesses, and women’s business enterprises are solicited whenever they are potential sources;
(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women’s business enterprises;
(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises;
(5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (b)(1) through (5) of this section.