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HomeMy WebLinkAbout2009-12-08; City Council; 20062; Loan from CEC Funds to Streetlight Retrofit ProjCITY OF CARLSBAD - AGENDA BILL\i|p^ AB# 20,062 MTG. 12/8/09 DEPT. PW/GS ACCEPTING LOW INTEREST LOAN FROM THE CALIFORNIA ENERGY COMMISSION AND APPROPRIATING FUNDS TO STREETLIGHT RETROFIT PROJECT DEPT. HEAD 'g^Y'f CITY ATTY. /^^' CITY MGR. li/ RECOMMENDED ACTION: Adopt Resolution No. 2009-307 accepting loan 004-09-ECE-ARRA from the California Energy Commission (CEC), appropriating the funds from the loan to the Streetlight Retrofit and Relamping project, and authorizing the City Manager or designee to execute loan documents on behalf of the City. ITEM EXPLANATION: In an effort to reduce energy costs and greenhouse gas emissions, the City Council directed staff to replace over 7,000 street lights with high efficiency induction lights. Numerous agencies, including the California Energy Commission ("CEC"), have made funds available to assist local government in their efforts to increase energy efficiency and reduce global warming. On May 19, 2009, Council approved Resolution 2009-119 authorizing, among other items, City Staff to apply for a low interest loan from the California Energy Commission for the purpose of retrofitting street lights. On October, 30, 2009, the City was notified that its loan application has been approved. However, the City received a letter dated November 23, 2009 stating the CEC has stopped processing all one percent loan applications pending receipt of National Environmental Policy Act ("NEPA") and National Historic Preservation Act ("NHPA") documentation to verify compliance with the law. The CEC informed the City that NEPA and NHPA compliance is required because the one percent loans are funded with federal American Recovery & Reinvestment Act ("ARRA") funds. The CEC informed the City that the NEPA and NHPA documentation review process could delay the project. If their review process significantly delays the project, the Department of Energy may not "re- approve" the one percent loan. Staff has reviewed the requested NEPA and NHPA documentation and believes the paperwork is ministerial in nature and will not cause significant delays to the project. As such, staff recommends accepting the low interest loan from the CEC. ENVIRONMENTAL IMPACT: This project is a Class 1 categorical exemption (minor alteration of existing structure or facilities) and is, therefore, exempt from the environmental review process under provisions of the California Environmental Quality Act (CEQA), Section 15301(c). Staff estimates that the change in technology will reduce the City's current power consumed for street lighting from 5,118,967 kwh/year to 2,040,898 kwh/year. This is a reduction of 3,078,049 kWh annually. In terms of greenhouse gas reduction, this project will result in the reduction of 1,240 tons annually, the equivalent of taking 170 cars off the road for a year, or planting 124,000 trees. DEPARTMENT CONTACT: John McKelvey 760-434-2992 orjohn.mckelvey@carlsbadca.gov FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED tf Dnnn CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D Dn n Page 2 FISCAL IMPACT: Staff believes the NEPA and NHPA documentation requirements are ministerial in nature and will not cause significant delays to the project or the "re-approval" of the one percent loan. If the one percent loan is re-approved, the estimated loan amount will be $1,543,000. Loan repayment will be made in semi-annual payments (June and December) estimated at $160,587 per payment for an estimated annual total of $321,174. The loan repayment period will be five years. The one percent loan is a reimbursement loan; the City may draw funds down from the State as expenditures are made. The City has the right to prepay all or any part of the amount of the one percent loan at any time without penalty. Monthly progress reports are required as part of this loan. The City must retain expenditure records for three years following the last reimbursement received under the loan. To ensure the project is not significantly delayed, Staff has prepared a back-up solution should the NEPA and NHPA documentation requirements, or other processing requirements, cause significant delays to the project. Solution If receipt of the one percent loan is significantly delayed, using the General Capital Construction ("GCC") Fund to advance the $1,543,000 to the Street Light Fund would offer a solution. Advancing these funds from the GCC Fund would ensure the efficient completion of work. Funds would be repaid from the Street Light Fund with interest over a five year period in annual installments. The interest rate for the advance would be consistent with the rate earned on the Treasurer's Pool; currently 2.63%. The interest rate would fluctuate based on the average yearly yield on the Treasurer's Portfolio. At the current 2.63% interest rate, the annual payment would be approximately $329,673. Loan or advance repayment is similar regardless of which funding solution is used. The loan or advance will be repaid using savings accrued through reduced maintenance and operating costs in the Street Lighting budget. Staff estimates switching to induction street lights will reduce energy costs for Street Lighting by approximately $290,000 annually. Additionally, annual maintenance costs are projected to decrease by an additional $100,000 due to the extended life span and warranties for induction lamps. The total anticipated annual savings from this project are $390,000. The one percent CEC Loan represents a portion of the funding that will be used to complete the Street Light Retrofit Project. The funding breakdown for the estimated cost of the project is as follows: Funding Source Energy Efficiency and Conservation Block Grant CDBG Allocation SDG&E Incentives California Energy Commission Loan Amount Total Amount $ 939,000 265,000 285,000 1,543,000 $3,032,000 Staff is requesting the full amount of the anticipated loan, $1,543,000, be appropriated to this project to ensure the efficient completion of work. PageS EXHIBITS: 1. Resolution No. 2009-307 accepting California Energy Commission Loan No. 004-09- ECE-ARRA, appropriating funds from the loan to the Streetlight Retrofit and Relamping project, and authorizing the City Manager or designee to execute the loan documents. 1 RESOLUTION NO. 2009-307 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, ACCEPTING CALIFORNIA ENERGY COMMISSION LOAN 004-09-ECE-ARRA; APPROPRIATING 4 FUNDS FROM THE LOAN TO THE STREETLIGHT RELAMPING PROJECT, AND AUTHORIZING THE CITY MANAGER OR 5 DESIGNEE TO EXECUTE THE LOAN DOCUMENTS. 6 WHEREAS, the City Council authorized staff to apply for a low interest loan from the 7 California Energy Commission to assist with the cost of replacing street lights; and 8 WHEREAS, the City of Carlsbad received a loan of $1,543,000 from the California 9 Energy Commission (CEC) for the express purpose of the street light retrofit and replacement project; and WHEREAS, the CEC Loan funds are part of the total funding package for this project; 12 and WHEREAS, the CEC Loan will be repaid using savings accrued in the Street Lighting budget resulting from reduced operating costs. 15 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 17 1. That the above recitations are true and correct. 18 2. The City of Carlsbad hereby accepts the California Energy Commission Loan 19 with an interest rate of 1%. 20 3. The Finance Director is authorized to appropriate $1,543,000 to the Street Light 21 Retrofit Project. 22 4. The City Manager, or designee, is authorized to execute the loan documents for 23 the one percent loan.24 5. If the City is unable to obtain the one percent loan in a timely fashion, the Finance Director is authorized to advance $1,543,000 from the General Capital Construction Fund/o _7 ("GCC") to the Street Light Fund payable over five years bearing interest at the average annual yield on the Treasurer's Portfolio. H 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 8th day of December. 2009, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. ATTEST: \1 LORRAINE M. (SEAL) OD.^Gity tferk ENERGY CONSERVATION ASSISTANCE ACCOUNT LOAN AGREEMENT LOAN NUMBER: 004-09-ECE-ARRA PRINCIPAL AMOUNT: $1,543.000.00 PROJECT TERM: 9/9/2009 - 12/31/2010 This Loan Agreement (the "Agreement") is entered into as of the date it is executed by both parties hereto, between the California Energy Resources Conservation and Development Commission (the "Commission") and City of Carlsbad, a city (the "Borrower") located in San Diego County, California. 1. STATUTORY AUTHORITY AND LOAN A. Pursuant to the purposes authorized by section 25410, et sea., of the California Public Resources Code (the "Energy Conservation Assistance Act"), the Commission has approved the Borrower's loan application dated August 12, 2009, which is not attached but is expressly incorporated by reference herein. B. Subject to the terms, covenants, conditions, and including Special Conditions contained herein, and the Budget Detail attached as Exhibit A hereto (the "Budget Detail") to the extent it modifies the Borrower's loan application, the Commission shall make a loan to the Borrower (the "Loan") in the amount of one million, five hundred and forty three thousand dollars ($1,543,000.00), evidenced by a Promissory Note (the "Promissory Note") for loan number 004-09-ECE-ARRA attached hereto as Exhibit B. 2. PURPOSE The Borrower agrees to expend all hds Bisbursed pursuant to this Agreement only for the purposes and in the amounts set forth in the attached Budget Detail (the "Project"). Any other use of funds disbursed hereunder shall require prior written approval by the Commission. 3. LOAN DISBURSEMENT SCHEDULE A. The Commission agrees to disburse funds to the Borrower upon the Borrower's execution of the attached Promissory Note and any appropriate security instruments and required supplemental documents, including invoices as required in Section 3.B below. Loan funds shall be disbursed on a reimbursement basis based on invoices submitted by Borrower in a form approved by the Commission. Backup documentation for actual expenditures, including such items as timecards, vendor invoices, and proof of payment must be provided to substantiate the ECAA Pub Entity Loan Agreement-ARRA SEP - 1 - Rev. 10127109 request. Commission staff will approve invoices only after verifying requested amounts against backup billings and determining that expenses are appropriate and used for the authorized purposes of this Loan. For executed Agreements, invoices for expenses incurred during the Project Term are eligible for reimbursement. B. All invoices must be submitted within thirty (30) days after Project completion. C. Ten percent (10%) of the Loan amount will be withheld as retention until the final report is received from the Borrower and the Commission's Project Manager determines the Project has been satisfactorily completed. 4. LOAN REPAYMENT AND INTEREST All funds disbursed hereunder, together with all interest payable thereon, shall be repaid to the Commission in accordance with the terms of the Promissory Note. The Loan shall bear simple interest at the annual rate set forth in the attached Promissory Note on the principal balance of Loan funds disbursed to the Borrower. Payment of said interest shall be due at the time of sernia~ulual scheduled Loan repayment installments to the Commission, and interest shall accrue from the time of disbursal of funds to the Borrower until receipt of full Loan repayment to the Commission. 5. TERM A. The effective date of this Agreement shall be the date on which it has been executed by both parties hereto. B. The Borrower agees to conlpiete performance of its obligations under this Agreement within the applicable periods stated in this Agreement. 6. PREPAYMENT The Borrower shall have the right to prepay all or any part of the amount of this Loan at any time without penalty. 7. PROMISSORY NOTE In order to evidence its debt to the Commission hereunder, the Borrower agees to, contemporaneously with the execution of this Agreement, execute and deliver to the Commission the Promissory Note (attached as Exhibit B hereto). 8. ACCOUNTS, AUDITS, AND RECORDS A. The Borrower agrees to establish on its books a separate account for this Loan. This account shall be maintained as long as the Loan obligation remains unsatisfied. ECAA Pub Entity Loall .kgreement-ARRA SEP - 2 - Re\.. 1 0 '27109 ENERGY CONSERVATION ASSISTANCE ACCOUNT LOAN AGREEMENT LOAN NUMBER: 004-09-ECE-ABRA PRINCIPAL AMOUNT: $1,543,000.00 PROJECT TEBM: 9/9/2009 - 12/31/2010 This Loan Agreement (the "Agreement") is entered into as of the date it is executed by both parties hereto, between the California Energy Resources Conservation and Development Commission (the "Commission") and City of Carlsbad, a town (the "Borrower") located in San Diego County, California. 1. STATUTORY AUTIHQMTY AND LOAN A. Pursuant to the purposes authorized by section 25410, et seq., of the California Public Resources Code (the "Energy Conservation Assistance Act"), the Commission has approved the Borrower's loan application dated August 12, 2009, which is not attached but is expressly incorporated by reference herein. B. Subject to the terms, covenants, conditions, and including Special Conditions contained herein, and the Budget Detail attached as Exhbit A hereto (the "Budget Detail") to the extent it modifies the Borrower's loan application, the Commission shall make a loan to the Borrower (the "Loan") in the amount of one million, five hundred and forty three thousand dollars ($1,543,000.00), evidenced by a Promissory Note (the "Promissory Note") for loan number 004- 09-ECE-ARRA attached hereto as Exhibit B. 2. PURPOSE The Borrower agrees to expend all funds disbursed pursuant to this Agreement only for the purposes and in the amounts set forth in the attached Budget Detail (the "Project"). Any other use of funds disbursed hereunder shall require prior written approval by the Commission. 3. LOAN DISBURSEMENT SCHEDULE A. The Co~mnission agrees to disburse funds to the Borrower upon the Borrower's execution of the attached Promissory Note and any appropriate security instruments and required supplen~ental documents, including invoices as required in Section 3 .B below. B. Loan funds shall be disbursed on a reimbursement basis based on invoices submitted by Borrower in a form approved by the Conxnission. Backup documentation for actual expenditures, including such itenls as timecards, vendor invoices; and proof of payment must be provided to substantiate the ECPA Pub Entity Loan 44green~~~~t-.L\RRP SEP - 1 - Re\.. 1 0127109 request. Commission staff will approve invoices only after verifying requested amounts against backup billings and determining that expenses are appropriate and used for the authorized purposes of this Loan. For executed Agreements, invoices for expenses incurred during the Project Term are eligible for reimbursement. B. All invoices must be submitted within thirty (30) days after Project completion. C. Ten percent (10%) of the Loan amount will be withheld as retention until the final report is received from the Borrower and the Commission's Project Manager determines the Project has been satisfactorily completed. 4. LOAN =PAYMENT AND INTEREST All funds disbursed hereunder, together with all interest payable thereon, shall be repaid to the Commission in accordance with the terms of the Promissory Note. The Loan shall bear simple interest at the annual rate set forth in the attached Promissory Note on the principal balance of Loan funds disbursed to the Borrower. Payment of said interest shall be due at the time of semiannual scheduled Loan repayment installments to the Commission, and interest shall accrue from the time of disbursal of funds to the Borrower until receipt of full Loan repayment to the Commission. 5. TERM A. The effective date of this Agreement shall be the date on which it has been executed by both parties hereto. B. The Borrower agrees to complete performance of its obligations under this Agreement within the applicable periods stated in this Agreement. 6. PREPAYMENT The Borrower shall have the right to prepay all or any part of the amount of this Loan at any time without penalty. 7. PROMISSORY NOTE In order to evidence its debt to the Commission hereunder, the Borrower agrees to, contemporaneously with the execution of this Agreement, execute and deliver to the Commission the Promissory Note (attached as Exhibit B hereto). 8. ACCOUNTS, AUDITS, AND RECORDS A. The Borrower agrees to establish on its books a separate account for this Loan. This account shall be maintained as long as the Loan obligation remains unsatisfied. ECAA Pub Entity Loan Agreement-ARRA SEP - 2 - Rev. 10127109 B. The Borrower further agees to maintain records that accurately and fully show the date, amount, purpose, and payee of all expenditures drawn on said account for three (3) years after this Loan is repaid in full or three years after the federal grant term, whichever is later, unless the Commission requests a longer retention period. C. The Borrower further agrees to utilize a voucher system by which all expenditures from said account will be authorized and authenticated. The Borrower further agrees to allow the Commission or any other agency of the State of California (the "State") or the Federal Govemnent, or their designated representatives, on written request, to have reasonable access to, and the right of inspection of, all records that pertain to said account or the Project. The Borrower also agrees to submit to an independent audit, if requested by the Commission, at the expense of the Borrower. Borrower agrees to maintain all such records for a minimum of three years after this Loan is repaid in full or three years after the federal grant term, whichever is later, unless the Commission notifies the Borrower, prior to the expiration of such three-year period, that a longer period of record retention is necessary. 9, SOURCE OF REPAYMENT; OPERATION OF PROJECT A. Semiannual payments due to the Commission under this Agreement shall be made from savings in energy costs or other legally available funds as the Borrower chooses. If the Borrower is a county, city, town, township, board of education, or school district, the Borrower agrees that the amount of the semiannual Loan repayment shall not be raised by the levy of additional taxes and shall not be an obligation against tax revenues, but shall be obtained either from savings in energy costs resulting from the subject energy conservation projects or other legally available funds as the Borrower chooses. B. Energy cost savings as determined by the Commission are based on energy usage and serving utility rate schedules at the time of the issuance of this Loan, except as specified in Special Conditions, if any, as detailed in this Agreement, and the illfonnatioll and data contained in the Borrower's loan application and technical study. The following will not affect the Conmission's initial finding of energy cost savings, and are not a basis for claiming a lack of energy savings: a) changes in energy use andlor rate schedules which occur after issuance of the Loan, except as specified in Special Conditions, if any, as detailed in this Agreement, b) de~~iations in the project worlc scope fronl what was approved by the Energy Commission, c) changes in the Borrower's facility andlor equipment which occur after the issuance of the loan, including, but not limited to maintenance, operations, schedules, employees and facility alterations and expansions, d) deviations, omissions or- errors found in the loan application and technical study after the loan award. The Boll-ower is responsible for ensuring the accuracy of the information contailled in its loan ECA4 Pub Entity Loan Agreement--4RR4 SEP - 3 - Rev. 10;'27/09 application and technical study. In the event annual energy cost savings resulting from the Project, as determined by the Commission, fail to equal or exceed the amount due under this Agreement, this Agreement may be renegotiated to assure that the repayment amount does not exceed the actual energy savings or avoided costs resulting from the Project, and the Promissory Note will be revised accordingly. In no event, however, will the number of semiannual installments payable hereunder and under the Promissory Note exceed thirty. C. The Borrower shall obtain and maintain in its records any and all permits and licenses required to install or operate the Project and shall comply with all local, state, and federal laws, rules and codes concerning the Project. The Borrower shall maintain the Project in good working order for the duration of the Loan and shall insure that staff members are provided appropriate training on the operation and maintenance of the Project. The Borrower shall maintain insurance on the Project and, in the event of any casualty loss covered by such insurance policy, apply the proceeds to the repair of the Project or, with the approval of the Commission, may use the insurance proceeds to install alternate projects to generate alternative energy cost savings to repay the Loan. D. The Borrower agrees to provide the Commission with information necessary for administration of the Program for three years following completion of the Project or three years after the federal grant term, whichever is later, unless the Commission requests a longer retention period. The needed information includes the following, at a minimum, (1) the annual computation, required by Section 254 14 of the Energy Conservation Assistance Act, of energy cost savings for the most recent fiscal year, calculated in the manner and provided in the format prescribed by the Commission and (2) any information or change in assumptions or operations which might affect the Commission's initial determination of energy savings. E. The Borrower authorizes any official or agent of the Commission, the State, or the Federal Government to conduct physical inspections of the Project before the commencement; during construction, installation and implementation of the Project; and at any time prior to the complete repayment of the Loan. In each contract entered into with suppliers of goods and services to install, conduct, or operate the Project, including management semices, the Borrower shall include terms which allow any officer or agent of the Commission, the State, or the Federal Government access to the Project site and to any books, documents, or records directly relevant to the Project. F. If, prior to final repayment of the Loan, the Borrower sells the equipment or material installed with the proceeds of the Loan or sells the building, facility or system in which the Project has been implemented, then the Borrower shall apply the sale proceeds to repay any remaining balance due under this ECAA Pub Entity Loan Agreement-ARRA SEP - 4 - Rev. 1 0/27/09 Agreement in full at the time of such sale. The Borrower shall notify the Commission within five business days of the date on which the Borrower enters into an agreement to effect such transaction. The Borrower shall repay the Commission within 30 calendar days of receiving an invoice fiom the Comnission for the balance due. G. In accordance with Section 2541 5 of the Energy Conservation Assistance Act, the Borrower covenants to take such action as may be necessary to include all payments due hereunder in its annual budget and to make the necessary annual appropriations for all such payments. The obligation of the Borrower to make such payments shall be limited to the savings realized by the Borrower as a result of implementing the Project funded by the Loan. 10. DEFAULT A. The Borrower's failure to comply with any of the terms of this Agreement shall constitute a breach of this Agreement and an Event of Default. In such case, tlle Commission may declare this Agreement to have been breached and be released from any further performance hereunder. B. In the event of any default or breach of this Agreement by the Borrower, the Commission, without limiting any of its other legal rights or remedies, may to the extent permitted by law, declare the Promissory Note evidencing this Loan to be immediately due and payable. This Agreement may be terminated for any reason set forth below. A. With Cause In the event of any breach by the Borrower of the conditions set forth in this Agreement, the Energy Commission may, without prejudice to any of its legal remedies, terminate this Agreement for cause upon five (5) days written notice to the Borrower. "Cause" includes without limitation: I) Failure to perfonn or breach of any of the tenns or covenants at the time and in the manner provided in this Agreement; or 2) Significant change in Energy Conlmission or federal policy such that the work or product being funded would not be supported by the Energy Conunissioll or Federal Govenmient; or 3) Reorganizatioll to a business entity ullsatisfactory to the Energy Conunission. EC.4A Pub Entity Loan Agreeme1lt-.4f&4 SEP - 5 - B. Without Cause The Energy Commission may, at its option, terminate this Agreement without cause in whole or in part, upon giving thirty (30) days advance notice in writing to the Borrower. 12. REPORTING A. Progress reports are due until Project completion. See Exhibit D for progress report due dates and content. B. A final report is due no later than 60 days after Project completion. C. The Commission will not process an invoice unless the Borrower's report submittals are up to date. D. If requested by the Commission, Borrower shall submit, within ten (1 0) days after the Commission's written request, a status report on its activities to date, pursuant to this Agreement. E. Reports shall be in a format as determined by the Commission. F. The Borrower shall submit reports regarding energy savings as described in Section 9.D above. 13. GENERAL TERMS A. Indemnification bv the Borrower. The Borrower agrees to indemnify, defend, and save harmless the Commission, the State, the Federal Government, and their officers, agents, and employees fiom any and all claims, losses, or costs (including reasonable attorney fees) arising out of, resulting fi-om, or in any way connected with the Loan or this Agreement, or the financing or the operation of the facilities financed with the Loan. Ownership of Equipment and Material. All equipment and material acquired under this Agreement shall become the property of the Borrower at time of purchase. The Borrower shall obtain and maintain in its records a written waiver of all claims, other than those previously made in writing and still unsettled, from each contractor who supplies goods and services, including management services, in connection with the Project. All equipment purchased with Loan funds shall be subject to the equipment provisions of 10 Code of Federal Regulations (CFR) Part 600, which is incorporated by reference in Exhibit D. C. Independent Capacity. The Borrower, and the agents and employees of the Borrower, in the performance of this Agreement, shall act in an independent ECAA Pub Entity Loan Agreement-MULA SEP - 6 - Rev. 10127109 capacity and not as officers or employees or agents of the Commission, the State of California, or the Federal Govermnent. D. Assignment. Without the written consent of the Commission, this Agreement is not assignable or transferable by the Borrower either in whole or in part. The Commission may assign its rights under this Agreement for security purposes, and in such event the assignee of this Loan Agreement, including the bond trustee of any bonds which may be secured by repayment of this Loan, shall be entitled to enforce the provisions hereof and shall be a third party beneficiary of this Agreement. E. Time of the Essence. Time is of the essence in this Agreement. Borrower is required to take timely actions which, taken collectively, move to completion of the purpose for which this Loan was awarded. The Commission Project Manager will periodically evaluate the progress toward completion. If the Commission Project Manager determines that the Borrower is not progressing toward colnpletion within one (1) year after the effective date of this Agreement, the Commission Project Manager may, without penalty or prejudice to any of the Commission's other remedies, terminate this Agreement. F. Amendment. No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. G. Severabilitv. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. H. Govenlin~ Law and Venue. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. Venue shall be in Sacramento County. Non-discrimination. During the perforxnance of this Agreement, the Borrower and its contractors and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for elnploynlent because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and family care leave. The Borrower and its contractors and subcontractors shall insure that the e\laluation and treatment of their einployees and applicants for employnellt are free from such discrimination and harassment. The Borrower and its contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a-f) et seq.) and the applicable EC.44 Pub E~ltlt) Loall Agreement--4RR4 SEP - 7 - Re\ I 0 '27109 regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this agreement by reference and made a part hereof as if set forth in full. The Borrower and its contractors and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. The Borrower and its contractors shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. I. Incorporation of Energy Conservation Assistance Act. The Energy Conservation Assistance Act, together with any applicable rules, regulations or procedures authorized by such statute, is incorporated by reference in this Agreement. J. Borrower Authorization. The Borrower certifies that it has full power and authority to enter into this Agreement, and this Agreement has been duly authorized, executed and delivered by the Borrower. The Borrower acknowledges that the resolution of its governing body or other official action authorizing it to enter into this Agreement also authorizes such further acts as are necessary, including execution of the Promissory Note, to implement and further the intent of this Agreement. K. Prevailing Wage. The Borrower shall comply with Chapter 1 (conlmencing with Section 1720) of Part 7 of Division 2 of the Labor Code relating to the payment of prevailing wage for work performed on the Project financed in whole or in part with the proceeds of the Loan. 14. NOTICE Any notice required to be given to the Commission hereunder shall be sent to the Commission at 1 5 16 Ninth Street, MS-I , Sacramento, California 958 14, attention Grants and Loans Office Manager, or at such other address as the Commission may designate in writing to the Borrower. Any notice required to be given to the Borrower hereunder shall be sent to the address shown below the Borrower's execution of this Agreement, or at sucll other address as the Borrower shall designate in writing to the Commission. Notice to either party may be given using the following delivery methods: U.S. mail, overnight mail, or personal delivery, providing evidence of receipt, to the respective parties identified in ths Agreement. Delivery by fax or e- mail is not considered notice for the purposes of this Agreement. Notice shall be effective when received, unless a legal holiday for the State commences on the date of the attempted delivery in which case the effective date shall be postponed 24 hours, or whene~~er the next business day occurs. ECAA Pub Entity Loan Agreement-ARR.4 SEP - 8 - Rev. 10127109 15. FEDERAL PROVISIONS INCORPORATED BY REFERENCE, SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, AND GENERAL FEDERAL PROVISIONS This Loan is funded by the American Recovery and Reinvestment Act of 2009. See Exhibit D for additional terms for federal American Recovery and Reinvestment Act of 2009 requirements. ECAA Pub Entity Loan Agreement-ARRA SEP - 9 - Rev. 10/27/09 IN WITNESS WHEREOF, this Loan Agreement has been executed by the parties hereto. STATE OF CALIFORNIA - CALIFORNIA BORROWER (If other than an individual, state ENERGY COMMISSION whether a corporation, partnership, etc.) Citv of Carlsbad -- NAME OF BORROWER Sherry Mediati l iqa Hildahrand PRINTED NAME OF AUTHORIZED SIGNATURE PRINTED NAME OF AUTHORIZED SIGNATURE - J L AUTHORIZED QGNA~RE ~T~ORIZED SIGNATURE MANAGER, GRANTS AND LOANS OFFICE Citv Manaaer " TITLE TITLE 12/28/09 DATE DATE MAIL ADDRESS: City of Carlsbad 405 Oak Avenue Carlsbad, CA 92008 AMOUNT / FISCAL / FUND -B/A IT. 3360-00 1-0890 (2) / LOAN NO. ENCUMBERED / YEAR / Energy Resources Conservation I $1,543,000.00 1 200912010 1 ECAA - 0890-3360-001 -20 CH 1 Statute / 004-09-ECE-ARRA / of 2009 I I APPROPRIATION ORG. / Program - ARRA SEP I LINE ITEM 90 1.003D i ALLOTMENT 1 6500-626.5-30007 APPROPRIATION AUG / / LINE ITEM / ALLOTMENT I HEREBY CERTIFY UPON MY OWN PERSONAL KNOWLEDGE THAT BUDGETED FUNDS ARE AVAILAB E FOR THE PERIOD AND PURPOSE OF THE EXPENDITURE STATED ABOVE. h I I / DATE I / ECAA Pub Entity Loan Agreement ARRA SEP - 10 - Rev. 10127109 EXHIBIT "A" BUDGET DETAILS This loan is made to the City of Carlsbad ("Borrower") for an Energy Saving Project. The project will convert all 7,040 street light fixtures from high pressure sodium lamps to induction lamps, in the city of Carlsbad. This project will also reduce the city's maintenance cost and increase system reliability and public safety since the new induction lamps will have approximately 4 times more life than the existing high pressure sodium lamps. The Table below summarizes the project savings, cost and simple payback for the project components in the listed table. Table 1 - Summary of Project Costs and Savings 1 Simple payback is based on the loan amount. Organization The Borrower shall implement all projects in Table 1. Failure to implement all projects shall reduce the approved loan amount. The reduced loan amount will be determined by multiplying the annual energy cost savings by 13.0 or the total project cost, whichever is less. If the Borrower has received disbursements that exceed the amount of the reduced loan, the Borrower shall refund the difference to the Energy Commission. Budget Details Estimated Energy Savings (kwhlyear) Estimated Annual Cost Savings Total Project Cost Loan Amount Requested Simple Payback (years) EXHIBIT B PROMISSORY NOTE LOAN NUMBER: 004-09-ECE-AWL4 PRINCIPAL AMOUNT: $1,543,000.00 INTEREST RATE: 1 Oh For value received, the undersigned, (hereinafter referred to as the "Borrower"), promises to pay to the order of the State of California, Energy Resources Conservation and Development Commission (hereinafter referred to as the "Commission"), at its principal place of business at 151 6 Ninth Street, Sacramento, California 95814, or at such other place as the Commission may designate the principal sum of one million, five hundred and forty three thousand dollars ($1,543,000.00), or such lesser amount as shall equal the aggregate amount disbursed to the Borrower by the Commission pursuant to the above- referenced Energy Conservation Assistance Account Loan Agreement (the "Loan Agreement") between the Borrower and the Commission, together with interest thereon at the rate of one percent per annum on the unpaid principal, computed fiom the date of each disbursement to the Borrower. Principal, together with interest thereon, is due and payable in semiannual installments as specified in the Estimated Amortization Schedule, attached hereto as Exhibit C, and as amended in the Final Amortization Schedule, beginning on or before December 22 of the fiscal year following the year in which the Project is completed and continuing thereafter on each June 22 and December 22 until said principal and interest shall be paid in full. The Final Amortization Schedule, and any amended Final Amortization Schedule(s) are not attached but are expressly incorporated by reference herein. 2. Payment of any scheduled installment received within thirty (30) days after its due date shall be considered to have been received on its due date and shall be first applied to accrued interest from the date of disbursal to the Borrower and the balance, if any, to principal. Payment of any scheduled installment received more than thirty (30) days after its due date but before the next billing shall be considered late, and interest on the unpaid principal shall accrue from date of disbursal to the Borrower through the actual payment date. However, payment of any scheduled installment received after a subsequent billing shall be considered overdue, and interest shall accrue on the unpaid principal fiom date of disbursal to the Borrower through the subsequent billing due date or actual payment date, whichever is later. 3. The Borrower may prepay this Promissory Note in full or in part, without penalty. 4. In accordance with Section 25415 of the Energy Conservation Assistance Act, the Borrower covenants to take such action as may be necessary to include all payments due hereunder in its annual budget and to make the necessary annual appropriations for all such payments. The obligation of the Borrower to make such payments shall be limited to the savings realized by the Borrower as a result of implementing the Project funded by the Loan. ECAA Pub Entity Promissory Note-iVUiA SEP B- 1 Rev. 10/27/09 5. If any installment is not paid within thirty (30) days after its due date, the Conlrnission, at its optio~z, may require the Borrower to pay a late charge equal to five percent (5%) of the a~nount of the installment or Five Dollars ($5.00), whichever is greater. 6. On the occurrence of any event of default, the Commission, at its sole election and without limiting any of its other legal rights or remedies, may, to the extent permitted by law, declare all or any portion of the principal and accrued interest on this Promissory Note to be immediately due and payable and may proceed at once without further notice to enforce this Proinissory Note according to law. 7. Each of the following occurrences shall constitute an event of default: A. Failure of the Borrower to repay any principal or interest when due under the terms of this Promissory Note; B. Termination of the Loan Agreement pursuant to the terms thereof or breach by the Borrower of any terns of said Loan Agreement; C. Failure of the Bonower to undertake in a timely way the express and implied activities for which said Loan Agreement has been executed; D. Failure of the Borrower to obtain prior written Commission approval before undertaking a change in the scope of the activities for which said Loan Agreement has been executed; or Occurrence of (1) the Borrower becoming insolvent or banluupt or being unable or admitting in writing its inability to pay its debts as they mature or malting a general assignment for the benefit of or entering into any co~nposition or arrangement with creditors; (2) proceedings for the appoint~nent of a receiver, trustee, or liquidator of the assets of the Borrower or a substantial part thereof, being authorized or instituted by or against the Borrower; or (3) proceedings under any bankruptcy, reorganization, readjustment of debt, insolvency, dissolution, liquidation or other similar law, or any jurisdiction being authorized or instituted against the Borrower. 8. No delay or failure of the Cormnission in the exercise of any right or remedy hereunder or under any other agreement which secures or is related hereto sllall affect any such right or remedy, and no single or partial exercise of any such ridlt or remedy shall preclude any further exercise thereof, and no action taken or omitted by the Co~mnission shall be deemed a waiver of any such right or remedy. 9. ,411~ notice to the Borrower provided for in this Proinissory Note shall be given by mailing such notice by certified mail, return receipt requested. addressed to the Bol-sower at the address stated in the Loan Agreement, or to such other address as the Borrower lnay designate by notice to the Coinmission. Any notice to the Co~nmission shall be given by nailing such notice by certified mail, retusn rece~pt requested, to the EC 4A Pub E~ltity PSOIII~SSO~ Note-.WR4 SEP B-3 P,e\, 10,'27/09 Commission at the address stated in the Loan Agreement, or at such other address as may have been designated by notice to the Borrower. 10. If suit is brought to collect any part of this Promissory Note, the Commission shall be entitled to collect all reasonable costs and expenses of said suit and any appeal therefkom, including reasonable attorney's fees. 1 I. This Promissory Note shall be binding upon the Borrower and its peniiitted successors and assigns and upon the Commission and its permitted successors and assigns. Without the written consent of the Commission, this Promissory Note is not assignable or transferable by the Borrower either in whole or in part. The Commission may assip its rights under this Promissory Note for security purposes, and in such event the assignee of this Promissory Note, including the bond trustee of any bonds which may be secured by repayments of this Promissory Note, shall be entitled to enforce the provisions hereof and shall be a third party beneficiary of this Promissory Note. 12. This Promissory Note shall be construed and enforced in accorda~ice wit11 the laws of the State of California. City of Carlsbad BORROWER Lisa Hildabrand PRINTED NAME OF AUTHORIZED City Manager TITLE DATE ECAA Pub Entity Promissory Note-ARRA SEP B-3 Rev. 10127109 EXHIBIT C ESTIMATED AMORTIZATION SCHEDULE Loan Number: 004-09-ECE -ARRA Recipient: City of Carlsbad Loan Amount: $1,543,000.00 Interest Rate: 1.0000% Number of Payments: 10 Estimated First Disbursement Date: 03/15/2010 Estimated Project Completion Date: 12/31/2010 Assumed First Payment Date: 12/22/2011 Energy Savings: $326,826.00 I Loan Based on Annual Energy Savings Date Transaction Accrued Principal Unpaid Amount Interest Reduct ion Princi~al 03/15/2010 Disbursement $1,543,000.00 Payment No. 1 Payment No. 2 Payment No. 3 Payment No. 4 Payment No. 5 Payment No. 6 Payment No. 7 Payment No. 8 Payment No. 9 Payment No. 10 Note: This Schedule is only an estimate. When your project is completed, you will be issued a final schedule based on actual disbursement(s1 and completion date. This amortization schedule assumes payments of all installments are made on their due dates in accordance with the terms of the promissory note. Any payment of installment considered to have been made late in accordance with the terms of the promissory note and any unscheduled prepayment will affect accrued interest, principal reduction, unpaid principal, and total repayment. EXHIBIT D FEDERAL PRBVCSIBNS INCORPORATED BY REFERENCE, SPECIAL PROVISIONS RELATING 80 WORK FUNDED UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, AND GENERAL FEDERAL PROVlSlONS - STATE ENERGY PROGRAM (SEP) For purposes of this Exhibit D, the term "subawardee" refers to any entity other than a vendor that receives funding from the Borrower to carry out or support any portion of this Agreement. The term "vendor" refers to those entities defined as such by OMB Circular A-133 (see Subpart B, Sections .I05 and .210). The Borrower must include all of the provisions below in its agreements with subawardees. It must include in its agreements with vendors only the provisions below that reference vendors. I. FEDERAL REGULAYIONS/GUlDELlNESlOMB CIRCULARS INCOPORATED BYREFERENCE The Office of Management and Budget (OMB) Circulars, federal regulations, and guidelines checked below are incorporated as part of this Agreement. These Terms and Conditions and any Special Conditions take precedence over the circulars, regulations, and guidelines checked below. OMB Circulars may be accessed on the OMB web site at www.whitehouse.qov/omb/circulars/index.html or by calling the Office of Administration, Publications Office, at (202) 395-7332. Federal regulations may be accessed at http://ecfr.gpoaccess.qov. The Borrower must include in its awards the provisions below that apply to the particular organization concerned. Title 10 Code of Federal Regulations (CFR) Part 600: Department of Energy (DOE) Financial Assistance Regulations [XI Title 10 Code of Federal Regulations (CFR) Part 420: State Energy Program Title 48 Code of Federal Regulations (CFR), Ch. 1, Subpart 31.2: Contracts with Commercial Organizations (Supplemented by 48 CFR, Ch. 9, Subpart 937.2 for Department of Energy grants) (commercial firms and certain non-profit organizations) State Energy Program Funding Opportunity Announcement DE-FOA- 0000052, CDFA Number 81.041, State Energy Program (https:l/www.fedconnect. netlFedConnect/) ECAA ARRA T&Cs Page 1 oi 20 Ex D OMB Circular A-1 02: Common Rule for Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments OMB Circular A-I 10: Uniform Administrative Requirements for Grants and Agreements with lnstitutions of Higher Education, Hospitals, and Other Non-Profit Organizations (also applicable to private entities) [XJ OMB Circular A-87: Cost Principles for State, Local and Tribal Governments OMB Circular A-21: Cost Principles for Educational lnstitutions OMB Circular A-1 22: Cost Principles Applicable to Grants, Contracts, and Other Agreements with Non-Profit Organizations (non-profit organizations and individuals, except for those specifically exempted) [XJ OMB Circular A-1 33: Audits of States, Local Governments, and Non- Profit Organizations Other: None 2. SPECIAL PROVISIONS RELATING TO WORM FUNDED UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 A. ARRA-FUNDED PROJECT Funding for this award is from the American Recovery and Reinvestment Act (ARRA) of 2009, Pub. L. 11 1-5. Funding for this award is authorized by Public Resources Code, Section 25422, and the State Energy Program, Federal Grant Number DE-EE0000221, CFDA Number 81.041. The federal grant term expires on April 30, 2012. The Borrower and all subawardees/vendors are subject to audit by appropriate federal or State of California (State) entities. The State has the right to cancel, terminate, or suspend this Agreement if the Borrower or its subawardee fails to comply with the reporting and operational requirements contained herein. The Borrower agrees that if it or one of its subawardees/vendors fails to comply with all applicable federal and State requirements governing the use of ARRA funds, the State may withhold or suspend, in whole or in part, funds awarded under the program, or recover misspent funds following an ECAA ARRA T&Cs Page 2 of 20 Ex D audit. This provision is in addition to all other remedies available to the State under all applicable State and federal laws. Prior to beginning work, the Borrower must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number and register with the Central Contract Registration (CCR). Websites are as follows: DUNS website: http://www.dnb.com/US/duns update CCR website: http://www.ccr.qov The Borrower must maintain current registrations in the CCR at all times during which it has an active award funded with ARRA funds. A DUNS Number is one of the requirements for registration in the CCR. D. SEGREGATION OF COSTS AND RECORDS The Borrower and its subawardeeslvendors must segregate the obligations and expenditures related to funding under ARRA. Financial and accounting systems should be revised as necessary to segregate, track, and maintain these funds apart and separate from other revenue streams. No part of the funds from ARRA shall be commingled with any other funds or used for a purpose other than that of making payments for costs allowable for ARRA projects. Pursuant to 10 C.F.R. section 600.242 (incorporated by reference herein), records must be maintained for three (3) years after the loan is repaid in full or 3 years after the federal grant term, whichever is later, unless the Commission or Federal Government requests a longer retention period. The Borrower and its subawardeeslvendors must keep separate records for ARRA funds to ensure those records comply with the requirements of ARRA. If this loan is split-funded with non-ARRA funds, the Borrower must track and report the ARM funds separately to meet the reporting requirements of ARRA and related guidance. E. BROHlBlBlON OM USE OF ARRA FUNDS The Borrower agrees that, in accordance with ARRA, Section 1604, none of the funds provided under this agreement derived from ARRA may be used for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool. ECAA ARRk T&Cs Page 3 of 20 Ex D F. ACCESS TO RECORDS In accordance with ARRA Sections 902,1514, and 151 5, the Borrower agrees that it shall permit the State of California, the United States Comptroller General or his representative, or the appropriate lnspector General appointed under Section 3 or 8G of the United States Inspector General Act of 1978 or his representative to: (1) examine any records of the Borrower or any of its subawardees/vendors that directly pertain to, and involve transactions relating to, this Agreement; and (2) interview any officer or employee of the Borrower or any of its subawardees/vendors regarding the activities funded with funds appropriated or otherwise made available by ARW. The Borrower shall include this provision in all of its agreements with its subawardees/vendors from whom it acquires goods or services in its execution of the ARRA-funded work. G. PUBLICATION Information about this agreement will be published on the Internet and linked to the website www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude posting contractual or other information on the website on a case-by-case basis when necessary to protect national security or to protect information that is not subject to disclosure under sections 552 and 552a of title 5, United States Code. The Borrower agrees that both it and its subawardees/vendors shall comply with Section 1553 of ARRA, which prohibits all non-federal contractors, including the State, and all contractors of the State, from discharging, demoting or otherwise discriminating against an employee for disclosures by the employee that the employee reasonably believes are evidence of: (1 ) gross mismanagement of a contract relating to ARRA funds; (2) a gross waste of ARRA funds; (3) a substantial and specific danger to public health or safety related to the implementation or use of ARRA funds; (4) an abuse of authority related to implementation or use of ARRA funds; or (5) a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) awarded or issued relating to ARRA funds. The Borrower agrees that it and its subawardees shall post notice of the rights and remedies available to employees under Section 1553 of Title XV of Division A of the ARRA. The requirements of Section 1553 of the ARRA are summarized below. They include, but are not limited to: ECAA ARRA T&Cs Page 4 of 20 Ex D Prohibition on Reprisals: An employee of any non-federal employer receiving covered funds under ARRA may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, to the Accountability and Transparency Board, an inspector general, the Comptroller General, a member of Congress, a State or federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or other person working for the employer who has the authority to investigate, discover or terminate misconduct), a court or grand jury, the head of a federal agency, or their representatives, information that the employee believes is evidence of: Gross management of an agency contract or grant relating to covered funds; A gross waste of covered funds; A substantial and specific danger to public health or safety related to the implementation or use of covered funds; An abuse of authority related to the implementation or use of covered funds; or A violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. Agency Action: Not later than 30 days after receiving an inspector general report of an alleged reprisal, the head of the agency shall determine whether there is sufficient basis to conclude that the non-federal employer has subjected the employee to a prohibited reprisal. The agency shall either issue an order denying relief in whole or in part or shall take one or more of the following actions: Order the employer to take affirmative action to abate the reprisal. Order the employer to reinstate the person to the position that the person held before the reprisal, together with compensation including back pay, compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken. Order the employer to pay the employee an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the head of a court of competent jurisdiction. Non-enforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration: Except as provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by Page 5 of 20 Ex D this section may not be waived by any agreement, policy, form, or condition of employment, including any predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out of this section. Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under ARRA shall post notice of the rights and remedies as required therein. (Refer to Section 1553 of ARRA located at www.recoverv.aov, for specific requirements of this section and prescribed language for the notices.) I. INFORMATION IN SUPPORT OF ARRA REPORTING The Borrower will be required to submit backup documentation for expenditures of funds under ARRA including such items as timecards and invoices. See Loan Agreement, Section 3, Loan Disbursement Schedule, for more details on backup documentation required for invoicing. In addition to the invoicing requirements, the Borrower shall provide copies of backup documentation at the request of the U.S. Department of Energy's (DOE'S) Contracting Officer or designee, or the Commission's Contract Manager or designee. J. FALSE CLAIMS ACT The Borrower agrees that it shall promptly notify the State and shall refer to an appropriate federal inspector general any credible evidence that a principal, employee, agent, subawardeelvendor or other person has committed a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving ARRA funds. K. AVAILABILITY OF FUNDS Funds appropriated under ARRA and obligated to this award are available for reimbursement of costs ulitil the end of the loan term or March 31, 2012, whichever comes first. L. REPORTING AND REGlSTRABlON REQUIREMENTS UNDER SECTION 1 512 OF ARRA 1) This award requires the Borrower to complete projects or activities which are funded under ARRA and to report on use of ARRA funds provided through this award. Information from these reports will be made available to the public. 2) The reports are due in accordance with Section 11 of this Loan Agreement in addition to this section. ECAA ARRA T&Cs Page 6 of 20 Ex D 3) Progress reports are due monthly by the third of the following month. For example, the January progress report is due by February 3. 4) The Borrower must maintain current registration in the CCR (http:llwww.ccr.qov) at all times during which it has an active federal award funded with ARRA funds. A DUNS Number (http:l/www.dnb.com) is one of the requirements for registration in the CCR, 5) The Borrower shall report the information described in Section 1512(c) of ARRA and other information reasonably requested by the State or required by the federal government or by the State to meet their obligation to provide accurate, complete, and timely information to the public; to meet the federal program reporting requirements; and/or to comply with State or federal law or regulation. Standard data elements and federal instructions for use in complying with reporting requirements under Section 151 2 of ARRA are pending review by the federal government, were published in the Federal Register on April I, 2009 (74 FR 14828), and are to be provided online at www.FederalReporting.gov. 6) The Borrower shall submit reports to the Commission's Project Manager in a format determined by the Commission. The Borrower must NOT register at FederalReporting.gov. 7) The Borrower must provide information including, but not limited to, the following: a) ARRA Section 1522 Report o Direct jobs created (i.e., new positions created and filled or unfilled positions that are filled) and jobs retained (i.e., previously existing filled positions that are retained as a result of ARRA funds). Only include jobs that are directly funded by ARRA funds. The number shall be expressed as "full-time equivalent" (FTE), calculated cumulatively as all hours worked divided by the total number of hours in a full- time schedule. e Description of jobs created. Provide a brief description of impact on the Borrower's workforce and include the types of jobs created and retained. Include time base (full-time or part-time) and duration (I year, 1-2 years, 2-5 years, or more than 5 years). Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number. Central Contractor Registration (CCR) number. ECAA ARRA TGCs Page 7 of 20 Ex D a Award number. Name (legal name as registered in CCR or D&B). The Doing-Business-As (DBA) name as registered in CCR or D&B. Address (physical location as listed in the CCR). Congressional district (based on physical location address). Type of entity (this is the "Business Type" in the CCR). Amount awarded (total amount of the Commission agreement). Amount received (total cumulative amount of Commission agreement funds received as of the reporting period). Date of award (date the Commission agreement was signed). Award period (term of the Commission agreement). Place of performance (the physical location of primary place of performance, including street address, city, state, zip code+4, country, congressional district, state senate district, and state assembly district). Area of benefit (e.g., state, county, city, special district). Names and total compensation of five most highly compensated officers for the calendar year in which the agreement is awarded if, In the Borrower's preceding fiscal year, the Borrower received - - 80 percent or more of its annual gross revenues from federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; and - $25,000,000 or more in annual gross revenues from federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements The public does not have access to information about the compensation of the senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d) or section 6104 of the Internal Revenue Code of 1986. Vendor Data Elements (purchases $25,000 or above) DUNS or name. Zip code of Headquarters. Description of the product and/or service provided by the vendor. The amount invoiced from the vendor (aggregated) that will be paid with ARRA funds. ECAA ASPA T&Cs Page 8 of 20 Ex D b) U.S. Department of Energy SEP Progress Report A comparison of the actual accomplishments with the goals and objectives established for the period and reasons why the established goals were not met. A discussion of what was accomplished under these goals during this reporting period, including major activities, significant results, major findings or conclusions, key outcomes or other achievements. This section should not contain any proprietary data or other information not subject to public release. If such information is important to reporting progress, do not include the information, but include a note in the report advising the reader to contact the Principal Investigator or the Project Director for further information. Cost Status. Show approved budget by budget period and actual costs incurred. Separate costs by project activities, administration, and evaluation. Schedule Status. List milestones, anticipated completion dates, and actual completion dates. Any changes in approach or aims, and reasons for change. Actual or anticipated problems or delays, and actions taken or planned to resolve them. Any absence or changes of key personnel or changes in consortium/teaming arrangement. A description of any product produced or technology transfer activities accomplished during this reporting period, such as: Publications (list journal name, volume, issue); conference papers; or other public releases of results. Web site or other Internet sites that reflect the results of this project. Networks or collaborations fostered. Technologiesltechniques. Inventionslpatent applications. Other products, such as data or databases, physical collections, audio or video, software or netware, models, educational aid or curricula, instruments or equipment. Performance Metrics Energy saved (kwh, therms, gallons, Btu, etc.). Renewable energy installed capacity and generated. GHG emissions reduced (tons) (C02 equivalents) (methane, carbon, sulfur dioxide, nitrogen oxide, carbon monoxide). Energy cost savings. Funds leveraged. Page 9 of 20 Ex D Project type metrics. The key metrics to be reported will vary by project type. See Exhibit D, Attachment 6, Project Type Metrics. M. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 The Borrower agrees that in accordance with ARPA, Section 1605, neither it nor its subawardeeslvendors will use ARRA funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel and manufactured goods used in the project are produced in the United States in a manner consistent with United States obligations under international agreements. The Borrower understands that this requirement may only be waived by the applicable federal agency in limited situations as set out in ARRA, Section 1605. I) Definitions. As used in this award term and condition- a) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been- Processed into a specific form and shape; or Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. b) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi-State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. c) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. ECAA ARRA T&Cs Page 10 of 20 Ex D 2) Domestic preference. a) This award term and condition implements Section 1605 of the ARRA by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph 2b and 2c of this section and condition. b) This requirement does not apply to the material listed by the Federal Government as follows: c) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph 2b of this section and condition if the Federal Government determines that- The cost of the domestic iron, steel, andlor manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or e The application of the restriction of Section 1605 of the ARM would be inconsistent with the public interest. 3) Request for determination of inapplicability of Section 1605 of the ARPA. a) (i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph 2c of this section shall include adequate information for Federal Government evaluation of the request, including- A description of the foreign and domestic iron, steel, and/or manufactured goods; Unit of measure; Quantity; Cost; Time of delivery or availability; Location of the project; Name and address of the proposed supplier; and A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph 2c of this section. Page 11 of 20 Ex D (ii) A request based on unreasonable cost shali include a reasonable survey of the market and a completed cost comparison table in the format in paragraph 4 of this section. (iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the construction site and any applicable duty. (iv) Any recipient request for a determination submitted after ARRA funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination. b) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to Section 1605 of the ARRA applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, andlor relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shali adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.1 10(a). c) Unless the Federal Government determines that an exception to Section 1605 of the ARRA applies, use of foreign iron, steel, and/or manufactured goods is noncompliant with Section 1605 of ARRA. 4) Data. To permit evaluation of requests under paragraph 2 of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: ECAA ARRA T&Cs Page 12 of 20 Ex D Foreign and Domestic Items Cost Comparison Description Unit of Measure Quantity Cost ($s) ltem 1: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good ltem 2: Foreign steel, iron, or manufactured good Domestic steel, iron, or manufactured good [List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] rlnclude all delivery costs to the construction site.] N. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE ARRA In accordance with ARRA, Section 1606, the Borrower assures that it and its subawardees/vendors shall fully comply with said Section and notwithstanding any other provision of law and in a manner consistent with other provisions of ARRA, all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to ARRA shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the United States Secretary of Labor in accordance with Subchapter IV of Chapter 31 of Title 40, United States Code (Davis-Bacon Act). It is understood that the Secretary of Labor has the authority and functions set forth in Reorganization Plan Numbered 14 or 1950 (64 Stat. 1267; 5 U.S.C. App.) and Section 3145 of Title 40, United States Code. Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis-Bacon and related Acts. Regulations in 29 CFR 5.5 instruct agencies concerning application of the standard Davis- Bacon contract clauses set forth in that section. The Borrower will complete and certify by signature on Attachment 7 of this Agreement its commitment to comply with 29 CFR 5.5, and return it to the Commission Grants and Loans Officer, Page 13 of 20 Ex D 0. ARRA TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS 1) To maximize the transparency and accountability of funds authorized under ARRA as required by Congress and in accordance with 2 CFR 21 5.21 "Uniform Administrative Requirements for Grants and Agreements" and OMB Circular A-102 Common Rules provisions, the Borrower agrees to maintain records that identify adequately the source and application of ARRA funds. OMB Circular A-102 is available at 2) If the Borrower is covered by the Single Audit Act Amendments of 1996 and OMB Circular A-133, "Audits of States, Local Governments, and Non-Profit Organizations," the Borrower agrees to separately identify the expenditures for federal awards under the ARRA on the Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF-SAC) required by OMB Circular A-133. OMB Circular A-133 is available at http://www.whitehouse.~ov/omb/circulars/al33/al33.html. This shall be accomplished by identifying expenditures for federal awards made under ARRA separately on the SEFA, and as separate rows under ltem 9 of Part Ill on the SF-SAC by CFDA number, and inclusion of the prefix "ARRA-" in identifying the name of the federal program on the SEFA and as the first characters in ltem 9d of Part 111 on the SF-SAC. 3) The Borrower agrees to separately identify to each subawardee, and document at the time of subaward and at the time of disbursement of funds, the federal award number, CFDA number, and amount of ARRA funds. When the Borrower awards ARRA funds for an existing program, the information furnished to subawardee shall distinguish the subawards of incremental ARRA funds from regular subawards under the existing program. 4) The Borrower agrees to require its subawardees to include on their SEFA information to specifically identify ARRA funding similar to the requirements for the recipient SEFA described above. This information is needed to allow the recipient to properly monitor subrecipient expenditure of ARRA funds as well as oversight by the federal awarding agencies, Offices of Inspector General, and the Government Accountability Office. ECAA ARRA T&Cs Page 14 of 20 Ex C P. DATA IN SUPPORT OF ENERGY SAVINGS AND EMISSION REDUCTIONS 1) The Commission may request utility bill data from ARRA SEP program participants to track program energy saving and greenhouse gas emission reduction impacts. Upon request, ARRA SEP program participants must be prepared to provide utility billing data for at least the 12 months preceding and the 12 months following the project's implementation of a building retrofit project. To ease the burden of this data provision by the participant, the Commission will work with the participant's utility company to facilitate the electronic exchange of the required billing data. The Borrower authorizes the Commission to exchange this data with the Borrower's energy utility company and agrees to complete an authorization form if requested by the Commission. Upon written request from the Commission, the Borrower and its subawardees shall allow the Commission or its agent access to facilities and records and allow the Commission or its agent to collect data needed to measure and verify electricity and fuel reductions (this may include but is not limited to utility bills, metering data, facility equipment surveys, information on operational practices, and site occupancy levels). Further, if requested, the Borrower and subawardee must provide the Commission or its agent associated data from a period prior to the start of the project as necessary to establish baseline energy and/or fuel use. The Borrower shall include this provision in its subaward agreements. Q. STATE ARRA GUIDELINES FOR STATE ENERGY PROGRAM The Commission's Guidelines for the State Energy Program, dated September 30, 2009, (publication number CEC-150-2009-004-F) are hereby incorporated by reference and made a part of this Agreement. The Borrower warrants that it has read and understands the Guidelines and acknowledges that requirements specified therein apply to the Borrower and the funding provided under this Agreement. The Borrower acknowledges that the Guidelines are subject to change pursuant to Public Resources Code Section 25462 and that any changes made to the Guidelines shall apply to the Borrower and the funding provided under this Agreement. 3. SITE VISITS The Commission, the federal awarding agency, andlor their designees have the right to make site visits at reasonable times to review project accomplishments and management control systems and to provide technical assistance, if required. The Borrower must provide and must require subawardees to provide reasonable ECW ARRA T&Cs Page 15 of 20 Ex D facilities and assistance for the safety and convenience of the government representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work. 4. NON-DISCRIMINATION CLAUSE This award is subject to the provisions of 10 CFX 1040.1 et seq., Nondiscrimination in Federally Assisted Programs. The Borrower will complete and certify by signature on the DOE Form 1600.5, U.S. DOE "Assurance of Compliance," (Exhibit D, Attachment 1 of this Agreement) its commitment to comply with this law and return it to the Commission Grants and Loans Officer. 5. CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND OTHER RESPONSlBlLlN MATTERS; AND DRUG FREE WORKPLACE REQUIREMENTS This award is subject to the provisions of 10 CFR Part 601, 10 CFR Part 606, and 10 CFR Part 607. The Borrower will complete and certify by signature on the Form "Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug Free Workplace Requirements" (Exhibit D, Attachment 2 of this Agreement) its commitment to comply with these requirements and return it to the Commission's Grants and Loans Officer. 6. LOBBYING ACTlVBTlES The Borrower agrees that none of the funds obligated under this agreement shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation. If applicable, the Borrower will disclose any lobbying activities by completing and signing the Standard Form LLL (Exhibit D, Attachment 3 of this Agreement) and return it to the Commission's Grants and Loans Officer. 7. NATIONAL POLICY ASSURANCES The Borrower agrees to adhere to and include in any subawards the requirements set forth in the attached "National Policy Assurances" (Exhibit D, Attachment 4 of this Agreement). ECAk ARRA T&Cs Page 16 of 20 Ex D 8. PUBLICATIONS A. The Borrower is encouraged to publish or otherwise make publicly available the results of the work conducted under this Agreement. B. An acknowledgment of Commission and federal support and a disclaimer must appear in the publication of any material, whether copyrighted or not, based on or developed under this project, as follows: Acknowledgment: "This material is based upon work supported by the California Energy Commission and the U.S. Department of Energy under Award Number(s) DE-0000221." Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the California Energy Commission, the United States Government, nor any agency thereof, nor any employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the California Energy Commission, the United States Government, or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the California Energy Commission, the United States Government, or any agency thereof." 9. INTELLECTUAL PROPERN PROVlSlONS A. The intellectual property provisions applicable to this award are provided as Exhibit D, Attachment 5, to this award. B. Questions regarding intellectual property matters should be referred to the DOE Award Administrator and the Patent Counsel designated as the service provider for the DOE office that issued the award. The IP Service Providers List is found at http://www.gc.doe.qov/documents/lntellectual Property (IP) Service Provide rs for Acquisition.pdf. lO.FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS The Borrower must obtain any required permits and comply with all applicable federal, state, and municipal laws, codes, and regulations for work performed under this award. ECAA ARRA T&Cs Page 17 of 20 Ex D 7 I. PRESERVATION OF OPEN COMPETITION AND GOVERNMENT NEUTRALITY TOWARDS CONTRACTORS' LABOR RELATIONS ON FEDERALLY FUNDED CONSTRUCTION PROJECTS A. Unless in conflict with State or local laws, the Borrower must ensure that bid specifications, project agreement, or other controlling documents in construction contracts awarded pursuant to this Agreement, or pursuant to a subaward to this Agreement, do not: 1) Require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations, on the same or other related construction project(s); or 2) Otherwise discriminate against bidders, offerors, contractors, or subcontractors for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations, on the same or other related construction project(s). B. The term "construction contract" as used in this provision means any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property. C. Nothing in this provision prohibits bidders, offerors, contractors, or subcontractors from voluntarily entering into agreements with labor organizations. 12.DECONBAIWINATION AND/OR DECONIMISSIONING (D &D) COSTS Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have any obligation to the Borrower or its subawardees for (i) Decontamination and/or Decommissioning (D&D) of any of the Borrower's or its subawardees' facilities, or (ii) any costs which may be incurred by the Borrower or its subawardees in connection with the D&D of any of its facilities due to the performance of the work under this Agreement, whether said work was performed prior to or subsequent to the effective date of this Agreement. 13.NATlOMAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE The Borrower is restricted from taking any action using federal funds for projects under this award that would have an adverse effect on the environment or limit the choice of reasonable alternatives prior to DOE providing a final NEPA determination regarding these projects. li the Borrower moves forward with activities that are not authorized for federal funding by the DOE Contracting Officer in advance of the final IIEPA determination, the Borrower is doing so at risk oi not receiving federal funding, ECAA ARRA T&Cs Page 18 of 20 Ex D and such costs may not be recognized as allowable cost share. 14. NOTICE REGARDING THE PURCHASE 06 AMERICAN-MADE EQUIPMENT AND PRODUCTS - SENSE OF CONGRESS It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American-made. 15. HISTORIC PRESERVATION Prior to the expenditure of federal funds to alter any structure or site, the Borrower is required to comply with the requirements of Section 106 of the National Historic Preservation Act (NHPA), consistent with DOE'S 2009 letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in or eligible for listing in the National Register of Historic Places. In order to fulfill the requirements of Section 106, the Borrower must contact the State Historic Preservation Officer (SHPO), and, if applicable, the Tribal Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR Part 800. SHPO contact information is available at the following link: htt~://www.ncshpo.ora/find/index.htm. THPO contact information is available at the following link: http://www.nath~o.orq/map.htmI. Section 110(k) of the NHPA applies to DOE funded activities. Borrowers shall avoid taking any action that results in an adverse effect to historic properties pending compliance with Section 106. Borrowers should be aware that the DOE Contracting Officer will consider the Borrower in compliance with Section 106 of the NHPA only after the Borrower has submitted adequate background documentation and the SHPOrTHPO has provided written concurrence that it does not object to its Section 106 finding or determination. The Borrower shall provide a copy of this concurrence to the Commission and the Contracting Officer. If the Borrower's project involves alteration of any structure or site, the Commission Grants and Loans Office will provide further guidance on the Section 106 process. 76. AVAIEABILBW OF FEDERAL FUNDS It is mutually agreed that partial or whole funding for this Agreement is dependent upon a federal agreement (DE-EE0000221) that has a scheduled budget period end date of April 30, 2012, and is subject to the following provisions: (1) This Agreement is subject to any additional restrictions, limitations, or conditions enacted by Congress or any statute enacted by Congress that may affect the provisions, terms, or funding of this Agreement; (2) Funding for this Agreement is subject to the approval of the U.S. Department of Energy (DOE) and to any additional I ECkA ARM T&Cs Page 19 of 20 10129/09 restrictions, limitations, or conditions imposed by DOE, federal law, federal court judgments, and/or federal agency orders which may affect the provisions or terms of this Agreement; (3) If Congress does not appropriate sufficient funds for the program, this Agreement shall be amended to reflect any reduction in funds; and (4) The Commission has the option to invalidate the Agreement under the 30- day cancellation clause or to amend the Agreement to reflect any reduction in funds. 17. RESOLUTION OF CONFLICTING CONDITIONS Any apparent inconsistency between Federal statutes and regulations and the terms and conditions contained in this award must be referred to the DOE Award Administrator for guidance. 18. STATEMENT OF FEDERAL STEWARDSHIP DOE will exercise normal federal stewardship in overseeing the project activities performed under this award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to correct deficiencies which develop during the project; assuring compliance with terms and conditions; and reviewing technical performance after project completion to ensure that the award objectives have been accomplished. 19. UBILIN REBATES ARRA State Energy Program funding must be used to create new programs or expand existing programs, including ratepayer-funded programs, and not to supplant or replace existing state, ratepayer, or other funding. Therefore, if after the project is completed, the Borrower receives a rebate from its utility or other source for all or a portion of the project costs that have been funded by this loan, the Borrower must submit principal repayment to the Commission in the amount of that rebate within 10 working days of receipt of the rebate. This repayment will be considered an unscheduled principal repayment. ECAP. ARRA T&Cs Page 20 of 20 Ex D DOE F 1600.5 (06-94) All Other Editions are Obsolete ATTACHMENT I ASSURANCE OF COMPLIANCE U.S. Department of Energy Assurance of Compliance Nondiscrimination in Federally Assisted Programs OMB Control No. 191 0-0400 OMB Burden Disclosure Statement Public reporting burden for this collection of information is estimated to average 15 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Office of Information Resources Management Policy, Plans, and Oversight, Records Management Division, HR-422 - GTN, Paperwork Reduction Project (1900-0400), U.S. Department of Energy, 1000 Independence Avenue, S.W., Washington, DC 20585; and to the Office of Management and Budget (OMB), Paperwork Reduction Project (1900-0400), Washington, DC 20503. City of Carlsbad (Hereinafter called the "Applicant") HEREBY AGREES to com~lv with Title VI of the Civil Riahts Act of 1964 (Pub. L.88-352L Section 16 of the Federal Enerav Administration Act of 1974 (Pub.L.93-275), sect& 401 of the Energy ~eor~akation Act of 1974 (~ub.~.93-438) Title IX of the Education ~mendments of 1972, as amended (Pub.L.92-318, Pub.L.93-568, and Pub.L.94-482), Section 504 of the Rehabilitation Act of 1973 (Pub.L.93-112), the Age Discrimination Act of 1975 (Pub.L.94-135). Title Vlll of the Civil Rights Act of 1968 (Pub.L.90-284), the Department of Energy Organization Act of 1977 (Pub.L.95-91), and the Energy Conservation and Production Act of 1976, as amended (Pub.L.94-385) and Title 10, Code of Federal Regulations, Part 1040. In accordance with the above laws and regulations issued pursuant thereto, the Applicant agrees to assure that no person in the United States shall, on the ground of race, color, national origin, sex, age, or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity in which the Applicant receives Federal assistance from the Department of Energy. Applicability and Period of Obligation In the case of any service, financial aid, covered employment, equipment, property, or structure provided, leased, or improved with Federal assistance extended to the Applicant by the Department of Energy, this assurance obligates the Applicant for the period during which Federal assistance is extended. In the case of any transfer of such service, financial aid, equipment, property, or structure, this assurance obligates the transferee for the period during which Federal assistance is extended. If any personal property is so provided, this assurance obligates the Applicant for the period during which it retains ownership or possession of the property. In all other cases, this assurance obligates the Applicant for the per~od during which the Federal assistance is extended to the Applicant by the Department of Energy. Employment Practices Where a primary objective of the Federal assistance is to provide employment or where the Applicant's employment practices affect the delivery of services in programs or activities resulting from Federal assistance extended by the Department, the Applicant agrees not to discriminate on the ground of race, color, national origin, sex, age, or disability, in its employment practices. Such employment practices may include, but are not limited to, recruitment advertising, hiring, layoff or termination, promotion, demotion, transfer, rates of pay, training and participation in upward mobility programs; or other forms of compensation and use of facilities. Subrecipient Assurance The Applicant shall require any individual, organization, or other entity with whom it subcontracts, subgrants, or subleases for the purpose of providing any service, financial aid, equipment, property, or structure to comply with laws cited above. To this end, the subrecipient shall be required to sign a written assurance form, however, the obligation or both recipient and subrecipient to ensure compliance is not relieved by the collection or submission of written assurance forms. Data Collection and Access to Records The Applicant agrees to compile and maintain information pertaining to programs or activities developed as a result of the Applicant's receipt of Federal assistance from the Department of Energy. Such information shall include, but is not limited to, the following: (1) the manner in which services are or will be provided and related data necessary for determining whether any persons are or will be denied such services on the basis of prohibited discrimination; (2) the population eligible to be served by race, color, national origin, sex, age, and disability; (3) data regarding covered employment including use or planned use of bilingual public contact employees serving beneficiaries of the program where necessary to permit effective participation by beneficiaries unable to speal: or understand English; (4) the location of existing or proposed facilities connected with the program and related information adequate for determining whether the location has or will have the effect of unnecessarily denying access to any person on the basis of prohibited discrimination; (5) the present or proposed membership by race, color, national origin, sex, age. and disability, in any planning or advisory body which is an integral part of the program; and (6) any additional written data determined by the Department of Energy to be relevant to its obligation to assure compliance by reclplents with laws cited in the first paragraph of this assurance. ECAA ARRA T&Cs Page 1 of 2 E,: D Att 1 DOE F 1600.5 (06-94) All Other Editions are Obsolete OMB Control No. 191 0-0400 The Applicant agrees to submit requested data to the Department of Energy regarding programs and activities developed by the Applicant from the use of Federal assistance funds extended by the Department of Energy, Facilities of the Applicant (including the physical plants, building, or other structures) and all records, books, accounts, and other sources of information pertinent to the Applicant's compliance with the civil rights laws shall be made available for inspection during normal business hours on request of an officer or employee of the Department of Energy specifically authorized to make such inspections. Instructions in this regard will be provided by the Director, Office of Civil Rights, U.S. Department of Energy. This assurance is given in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts (excluding procurement contracts), property, discounts or other Federal assistance extended after the date hereto, to the Applicants by the Department of Energy, including installment payments on account after such data of application for Federal assistance which are approved before such date. The Applicant recognizes and agrees that such Federal assistance will be extended in reliance upon the representation and agreements made in this assurance and that the United States shall have the right to seek judicial enforcement of this assurance. This assurance is binding on the Applicant, the successors, transferees, and assignees, as well as the person(s) whose signature appears below and who are authorized to sign this assurance on behalf of the Applicant. Applicant Certification The Applicant certifies that it has complied, or that, within 90 days of the date of the grant, it will comply with all applicable requirements of 10 C.F.R. § 1040.5 (a copy will be furnished to the Applicant upon written request to DOE). Designated Responsible Employee 5cn /rlr~1=,,6rx2~@ DIIYQ&CJC 7LOb Name and Tftle (Fr~Ned to Typed) TelephoneNumber , Signature / s/A~[' 000 7 Date Citv of Carlsbad ( ) 760-602-2430 Appl~cant's Name Telephone Number 1635 Faradav Avenue 12/29/09 Address: Date Carlsbad, CA 92008 ECAA ARRA T&Cs Page 2 of 2 Ex. D Att. 1 EXHIBIT D ATTACHMENT 2 CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS; AND DRUG-FREE WORKPLACE REQUIREMENTS CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND OTHER RESPONSIBILTY MATTERS; AND DRUG FREE WORKPLACE REQUIREMENTS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this form. Signature of this form provides for compliance with certification requirements under 10 CFR Part 601 "New Restrictions on Lobbying," 10 CFR Part 606 "Governmentwide Debarment and Suspension (Nonprocurement) and 10 CFR Part 607 "Governmentwide Requirements for Drug-Free Workplace (Grants)." The certifications shall be treated as a material representation of fact upon which reliance will be placed when the Department of Energy determines to award the covered transaction, grant, or cooperative agreement. 1. LOBBYING 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, an officer or employee of Congress, or an employee of 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 subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients 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. 2. ADDITIONAL LOBBYING REPRESENTATION Applicant organizations which are described in section 501(c)(4) of the Internal Revenue Code of 1986 and engage in lobbying activities after December 31, 1995, are not eligible for the receipt of Federal funds constituting an award, grant, or loan. As set forth in section 3 of the Lobbying Disclosure Act of 1995 as amended, (2 U.S.C. 1602), lobbying activities are defined broadly to include, among other things, contacts on behalf of an organization with specified employees of the Executive Branch and Congress with regard to Federal legislative, regulatory, and program administrative matters. Check the appropriate block: The applicant is an organization described in section 501(c)(4j of the Internal Revenue Code of 1986? Dyes ONO If you checked "Yes" above, check the appropriate block: The applicant represents that after December 31. 1995 ir has has not engaged in any lobbying act~vities as ECAA ARM T&Cs Page 1 oi 3 Ex. D Att. 2 3. DEBARMENT, SUSPENSION, AND OTHER RESPONSlBILlN MATTERS (1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery; falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (l)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposai had one or more public transactions (Federal, State or local) terminated for cause or default. (2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. P 4. DRUG-FREE WORKPLACE This certification is required by the Drug-Free Workplace Act of 1988 (Pub.L. 100-690, Title V, Subtitle D) and is implemented through additions to the Debarment and Suspension regulations, published in the Federal Register on January 31, 1989, and May 25, 1990. ALTERNATE I (GRANTEES OTHER THAN INDIVIDUALS) (1) The grantee certifies that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an ongoing drug-free awareness program to inform employees about: (1) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will: (1 ) Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace not later than five calendar days after such conviction; (e) Notifying the agency, in writing, within ten calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted: ECAA ARRA T&Cs Page 2 of 3 Ex. D Att. 2 (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug- free workplace through implementation of paragraphs (a),(b),(c),(d),(e), and (0. (2) The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance: (Street address, city, county, state, zip code) Check if there are workplaces on file that are not identified here. ALTERNATE I1 (GRANTEES WHO ARE INDIVIDUALS) (1) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity with the grant. (2) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, he or she will report the conviction, in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency designates a central point for the receipt of such notices. When notice is made to such a central point, it shall include the identification number(s) of each affected grant. 5. SIGNATURE As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above certifications. Name of Applicant: Ci ty of Carl sbad Printed Name and Title of AuthorizedRepresentative: Lisa Hildabrand, City Manager 12/28/09 DATE Page 3 of 3 Ex. D Att. 2 EXHIBIT D ATTACHMENT 3 STANDARD FORM LLL DISCLOSURE OF LOBBYING ACTIVITIES Approved by OMB 0348-0046 Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352 (See reverse for public burden disclosure) I I 1. Type of Federal Action: b ;;onpct c. cooperative agreement d. loan e. loan guarantee f, loan insurance 2. Status of Federal Action: a. bid/offer/application LQ initial award c. post-award 3. Report Type: a. 'nitial filing material change Q For material change only: Year quarter Date of last report I Congressional District, if known: CP, -0SO I I 6. Federal DepartmentlAgency: Co~9~54~ 4. Name and Address of Reporting Entity: Prime Subawardee <&QF di\dd Tier , if Known: 40s oak ihR wbhd q 2009 I 1 CFDA Number. if applicable: -8 I 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime: - g Federal Action Number, if known: ( 9. Award Amount, if known: 10. a. Name and Address of Lobbying Registrant (if individual, lasf name, first name, MI): ES~~Q~,CA. 92025 11. Information requested through this form is authorized by title 31 U.S.C. section 1352. This disclosure of lobbying activities is a material representation of fact upon which reliance was placed by the tier above when this transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to the Congress semi-annually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $1 0,000 and not more than $1 00,000 for each such failure. Federal Use Only s 1: 593!om b. Individuals Performing Services (including address if different from No. 10a) (last name, first name, MI): Signature. &-&%L-- Print Name: Lb bf Telephone NO.:&~)Y,?~- ,. 21133 Date: &&,/"( Authorized for Local Reproduction Standard Form - LLL (Rev. 7-97) ECAA ARRA T&Cs Page 1 of 2 Ex. D AR. 3 004-09-ECE-ARRA .( *1 INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity 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 a covered Federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information. 1. ldentify the type of covered Federal action for which lobbying activity is andlor has been secured to influence the outcome of a covered Federal action. 2. ldentify the status of the covered Federal action. 3. ldentify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action. 4. Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient. ldentify the tier of the subawardee, e.g., the first subawardee of the prime is the 1 st tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants. 5. If the organization filing the report in item 4 checks "Subawardee," then enter the full name, address, city, State and zip code of the prime Federal recipient. Include Congressional District, if known. 6. Enter the name of the federal agency making the award or loan commitment. Include at least one organizational level below agency name, if known. For example, Department of Transportation, United States Coast Guard. 7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments. 8. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for Proposal (RFP) number; Invitations for Bid (IFB) number; grant announcement number; the contract, grant, or loan award number; the applicationlproposal control number assigned by the Federal agency). Included prefixes, e.g., "RFP-DE-90-001." 9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the awardtloan commitment for the prime entity identified in item 4 or 5. 10. (a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of 1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action. (b) Enter the full names of the individual(s) performing services, and include full address if different from 10(a). Enter Last Name, First Name, and Middle Initial (MI). 11. The certifying official shall sign and date the form, print hislher name, title, and telephone number. According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid OMB control Number. The valid OMB control number for this information collection is OM5 No. 0348-0046. Public reporting burden for this collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of informat~on. Send comments regarding the burden estimate or any other aspect of this collection of informat~on, including suggestions for reducing this burden, to the Off~ce of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503 ECAA ARRA T&Cs Page 2 of 2 10/29/09 Ex D Att. 3 EXHIBIT D ATTACHMENT 4 By signing this agreement or accepting funds under this agreement, the Recipient assures that it will comply with applicable provisions of the following National Policy Assurances NATIONAL POLICY ASSURANCES (August 2008) To the extent that a tern does not apply to a particular type of activity or award, it is self-deleting. I. Nondiscrimination Policies You must comply with applicable provisions of the following national policies prohibiting discshination: 1 On the basis of race, color, or national origin, in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), as implemented by DOE regulations at 10 CFR part 1040; 2 On the basis of sex or blindness, in Title IX of the Education Amendments of 1972 (20 U.S.C. 168 1 et seq.), as implemented by DOE regulations at 10 CFR parts 1041 and 1042; 3 On the basis of age, in the Age Discrimination Act of 1975 (42 U.S.C.6101 et seq.), as implemented by Department of Health and Human Services regulations at 45 CFR part 90 and DOE regulations at 10 CFR part 1040; 4 On the basis of disability, in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as implemented by Department of Justice regulations at 28 CFR part 41 and DOE regulations at 10 CFR part 1041; 5 On the basis of race, color, national origin, religion, disability, fanlilial status, and sex under Title VIII of the Civil hghts Act (42 U.S.C. 3601 et seq.) as implemented by the Depa~tment of Housing and Urban Development at 24 CFR part 100; and 6 On the basis of disability in the Architectural Barriers Act of 1968(42 U.S.C. 41 5 1 et seq.) for the design, construction, and alteration of buildings and facilities financed with Federal funds. 11. Environmental Policies You must: 1 Coinply with applicable provisions of the Clean Air- Act (42 U.S.C.7401, et. seq.) and Clean Water Act (33 U.S.C. 1251, et. seq.), as iinplemented by Executive Order 1 1738 [3 CFR, 1971 -1 975 Comp., p. 7991 and Enviromnental Protection Agency lules at 40 CFR part 32, Subpart J. 2 hlxnediately identifs- to US. as the awarding agency. any potential impact that you find this award ma)' have on: Page 1 of 7 Ex. D Att. 4 a. The quality of the human enviromnent, including wetlands, and provide any help we inay need to comply with the National Environmental Policy Act (NEPA, at 42 U.S.C. 4321 et. seq.) and assist us to prepare Environniental Impact Statements or other environmental documentation. In such cases, you may take no action that will have an adverse environmental impact (e.g., physical disturbance of a site such as brealung of ground) or limit the choice of reasonable alternatives until we provide written notification of Federal compliance with NEPA, as implemented by DOE at 10 CFR part 1021. b. Flood-prone areas, and provide any help we may need to coinply with the National Flood Insurance Act of 1968 and Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et. seq.), which require flood insurance, when available, for Federally assisted construction or acquisition in flood- prone areas, as implemented by DOE at 10 CFR part 1022. c. Use of land and water resources of coastal zones, and provide any help we inay need to comply with the Coastal Zone Management Act of 1972(16 U.S.C. 145 1, et. seq.). d. Coastal barriers along the Atlantic and Gulf coasts and Great Lakes' shores, and provide help we may need to comply with the Coastal Barriers Resource Act (16 U.S.C. 3501 et. seq.), concerning preservation of barrier resources. e. Any existing or proposed component of the National Wild and Scenic Rivers system, and provide any help we may need to comply with the Wild and Scenic Rivers Act of 1968 (1 6 U. S .C. 127 1 et seq.). f. Underground sources of drinJ.ung water in areas that have an aquifer that is the sole or principal drinking water source, and provide any help we may need to comply with the Safe Drinking Water Act(42 U.S.C. 300h-3). 3 Comply with applicable provisions of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4346), as implemented by the Department of Housing and Urban Development at 24 CFR part 35. The requirements concern lead-based paint in housing owned by the Federal Government or receiving Federal assistance. 4 Comply with section 6002 of the Resource Consemation and Recovery Act of 1976, as amended (42 U.S.C. 6962), and implementing regulations of the Environmental Protection Agency, 40 CFR Part 247, which require the purchase of recycled products by States or political subdivision of States. 111. Live Organisms 1 Human research subjects. S70u must protect the rights and welfare of individuals that participate as human subjects in research under this award in accordance with the Common Federal Policy for the Protection of Human Subjects (45 CFR part 46), as implemented by DOE at 10 CFR part 745. 2 Animals and plants. a. You must co~nply with applicable provisions of Department of Agriculture rules at 9 CFR parts 1 - 4 that implement the Laboratory Animal Welfare Act of 1966 (7 U.S.C. 213 1-21 56) and provide for humane transportation, handling, care, and treatment of animals used in research, experimentation, or testing under this award. ECAA ARRA T&Cs Page 2 of 7 Ex. D Att. 4 b. You must follow the guidelines in the National Academy of SciencesCNAS) Publication "Guide for the Care and Use of Laboratory Animals"(1996, which may be found cursently at l~ttp://~~~.nap.edu/readingroom/books/labrats/) and comply with the Public Health Service Policy and Govemnent principles Regarding the Care and use of animals (included as Appendix D to the NAS Guide). c. You must immediately identify to us, as the awarding agency, any potential impact that you find this award may have on endangered species, as defined by the Endangered Species Act of 1973, as amended ("the Act," 16 U.S .C. 153 1 - 1543), and implementing regulations of the Departments of the Interior (50 CFR parts 10-24) and Cormnerce (50 CFR parts 217-227). You also must provide any help we may need to comply with 16 U.S.C. 1536(a)(2). This is not in lieu of responsibilities you have to comply with provisions of the Act that apply directly to you as a U.S. entity, independent of receiving this award. IV. Other National Policies 1 Debarment and suspension. You must comply with requirements regarding debarment and suspension in Subpart C of 2 CFR parts 180 and 901. 2 Drug-free workplace. You must comply with drug-fiee workplace requirements in Subpart B of 10 CFR part 607, which implements sec. 5 15 1-5 160 of the Drug-Free Workplace Act of 198 8 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq.). 3 Lobbying. a. You must comply with the restrictions on lobbying in 3 1 U.S.C. 1352, as implemented by DOE at 10 CFR part 601, and submit all disclosures required by that statute and regulation. b. If you are a nonprofit organization described in section 501 (c)(4)of title 26, United States Code (the Internal Revenue Code of 196S),you may not engage in lobbying activities as defined in the Lobbying Disclosure Act of 1995 (2 U.S.C., Chapter 26). If we determine that you have engaged in lobbying activities, we will cease all payments to you under this and other awards and terminate the awards unilaterally for material failure to comply with the award tenns and conditions. By submitting an application and accepting funds under this agreement, you assure that you are not an organization described in section 501(c)(4) that has engaged in any lobbying activities described in the Lobbying Disclosure Act of 1995 (2 U.S.C. 161 1). c. You must co~nply with the prohibition in IS U.S.C. 191 3 on the use of Federal funds, absent express Congressional authorization, to pay directly or indirectly for any service, advertisement or other written matter, telephone co~mnunication, or other device intended to influence at any time a Member of Congress or official of any govemnent concerning any legislation, law, policy, appropriation. or ratification. 4 Officials not to benefit. You lnust conlply with the requirement that no member of Congress shall be admitted to any share or part of this agreement, or to any benefit arising from it, in accordance with 41U.S.C. 23. Page 3 of 7 Ex. D Att. 4 5 Hatch Act. If applicable, you must comply with the provisions of the Hatch Act (5 U.S.C. 1501- 1508 and 7324-7326), as implemented by the Office of Personnel Management at 5 CFR part 15 1, which limits political activity of employees or officers of State or local governments whose employment is connected to an activity financed in whole or part with Federal funds. 6 Native American graves protection and repatriation. If you control or possess Native American remains and associated funerary objects, you must comply with the requirements of 43 CFR part 10, the Department of the Interior implementation of the Native American Graves Protection and Repatriation Act of 1990 (25 U.S.C., chapter 32). 7 Fly America Act. You must comply with the International Ax Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 401 18), commonly referred to as the "Fly America Act," and implementing regulations at 41 CFR 301 -1 0.13 1 through 301 -1 0.143. The law and regulations require air transport of people or property to, from, between or within a country other than the United States, the cost of which is supported under thls award, to be performed by or under a cost-sharing arrangement with a U.S. flag carrier, if service is available. 8 Use of United States-flag vessels. a. Pursuant to Pub. L. 664 (43 U.S.C. 1241(b)), at least 50 percent of any equipment, materials or commodities procured, contracted for or otherwise obtained with hnds under this award, and which may be transported by ocean vessel, must be transported on privately owned United States-flag conxnercial vessels. if available. b. Within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, "on-board" conimercial ocean bill-of-lading in English for each shipment of cargo described in paragraph 9.a of this section shall be hrnished to both our award administrator (through you in the case of your contractor's bill-of-lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590. 9 Research misconduct. You must comply with the government-wide policy on research misconduct issued by the Office of Science and Technology Policy (available in the Federal Register at 65 FR 76260, December 6,2000, or on the Internet at wwv\~.ostp.gov), as implemented by DOE at 10 CFR part 733 and 1 0 CFR 600.3 1. 10 Requirements for an Institution of Higher Education Concerning Military recruiters and Reserve Officers Training Corps (ROTC). a. As a condition for receiving funds under an award by the National Nuclear Security Administration of the Department of Energy, you agree that you are not an institution of higher education that has a policy or practice placing any of the restrictions specified in 10 U. S .C. 983. as implemented by 32 CFR part 2 1 6, on: i. Maintenance, establishment, or operation of Senior ROTC units, or student participation in those units; or ii. Military recruiters' access to campuses, students on campuses, or information about students. ECAA ARRA T&Cs Page 4 of 7 Ex. D Att. 4 b. If you are determined, using the procedures in 32 CFR part 21 6, to be such an institution of hgher education during the period of performance of this award, we: i. Will cease all payments to you of funds under this award and all other awards subject to the requirements in 32 CFR part 21 6; and ii. May suspend or tenninate those awards unilaterally for material failure to comply with the award terms and conditions. 1 1. Historic preservation. You must identify to us any: a. Any property listed or eligible for listing on the National Register of Historic Places that will be affected by this award, and provide any help we may need, with respect to tkis award, to comply with Section 106 of the National Historic Preservation Act of 1966 (1 6 U.S.C. 470f), as implemented by the Advisory Council on Historic Presesvation regulations at 36 CFR part 800 and Executive Order 1 1593, "Identification and Protection of Historic Properties," 13 CFR, 1971 -1975 Comp., p. 5591. b. Potential under this award for irreparable loss or destruction of significant scientific, prehstorical, historical, or archeological data, and provide any help we may need, with respect to this award, to comply with the Archaeological and Historic Preservation Act of 1974 (16 U.S.C.469a-1, et seq.). 12 Relocation and real property acquisition. You must comply with applicable provisions of 49 CFR part 24, which implements the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970(42 U.S.C. 4601, et seq.) and provides for fair and equitable treatment of persons displaced by federally assisted progsams or persons whose property is acquired as a result of such progsams. 13 Confidentiality of patient records. You must keep confidential any records that you maintain of the identity, diagnosis, prognosis, or treatment of any patient in connection with any program or activity relating to substance abuse education, prevention, training, treatment, or rehabilitation that is assisted directly or indirectly under this award, in accordance with 42 U.S.C. 290dd-2. 14 Constitution Day. You must comply with Public Law 108-447, Div. J, Title I, Sec. 11 1 (36 U.S.C. 106 note), which requires each educational institution receiving Federal funds in a Federal fiscal year to hold an educational program on the United States Constitution on September 17thduring that year for the students served by the educational institution. 15 Trafficking in Persons a. Provisions applicable to a recipient that is a private entity. 1. You as the recipient, your enlployees, subrecipients under ths award, and subrecipients' e~nployees may not- i. Engage in severe fonlls of trafficlang in persons during the period of time that the award is in effect; ii. Procure a co~m~~ercial sex act during the period of time that the award is in effect; or Page 5 of 7 EX D kti. 4 iii. Use forced labor in the performance of the award or subawards under the award. 2. We, as the awarding agency, may unilaterally terminate this award, without penalty, if you or a subrecipient that is a private entity - i. Is determined to have violated a prohibition in paragraph a. 1 of this award term; or ii. Has an employee who is detennined by the agency official authorized to terminate the award to have violated a prohibition in paragraph a. 1 of this award term through conduct that is either- A. Associated with performance under this award; or B. Imputed to you or the subrecipient using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR part 180, "OMB Guidelines to Agencies on Governrnentwide Debarment and Suspension (Nonprocurement)," as implemented by our agency at 2 CFR part 901. b. Provision applicable to a recipient other than a private entity. We, as the awarding agency, may unilaterally terminate this award, without penalty, if a subrecipient that is a private entity- 1. Is determined to have violated an applicable prohibition in paragraph a. 1 of this award term; or 2. Has an employee who is determined by the agency official authorized to terminate the award to have violated an applicable prohibition in paragraph a. 1 of this award term through conduct that is either- i. Associated with performance under this award; or ii. hnputed to the subrecipient using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR part 1 80, "OMB Guidelines to Agencies on Governrnentwide Debarment and Suspension (Nonprocurement)," as implemented by our agency at 2 CFR part 901. c. Provisions applicable to any recipient. 1. You must inform us immediately of any information you receive from any source alleging a violation of a prohibition in paragraph a. 1 of ths award term. 2. Our right to terminate unilaterally that is described in paragraph a.2 or b. of this section: i. Implements section 106(g) of the Trafficlcing Victims Protection Act of 2000 (TVPA), as amended (22 U.S.C. 71 04(g)), and ii. Is in addition to all other remedies for noncompliance that are available to us under ths award. ECAA ARRA TGCs Page 6 of 7 Ex. D Att. 4 3. You must include the requirenlents of paragraph a.1 of this award term in any subaward you make to a private entity. d. Definitions. For purposes of this award tell: 1. "Emnployee" lneans either: i. An individual employed by you or a subrecipient who is engaged in the perfonnance of the pro; ect or program under this award; or ii. Another person engaged in the performance of the project or program under ths award and not compensated by you including, but not limited to, a volunteer or individual whose services are contributed by a third party as an in-lund contlibution toward cost sharing or matching requirements. 2. "Forced labor" lneans labor obtained by any of the following methods: the recluitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 3. "Private entity": i. Means any entity other than a State, local govemnent, Indian tribe, or foreign public entity, as those terns are defined in 2 CFR 175.25. ii. Includes: A. A nonprofit organization, including any nonprofit institution of higher education, hospital, or tribal organization other than one included in the definition of Lndian tribe at 2 CFR 175.25(b). B. A for-profit organization. 4. "Severe fonns of traffickng in persons," "coimercial sex act," and "coercion" have the meanings given at section 103 of the TVPA, as amended (22 U.S.C. 71 02). V. National Policy Requirements for Subawards. Recipient responsibility. You must include in any subaward you make under tlis award the requirenlents of the national policy require~nents in Sections I though IV of this document that apply, based on the type of subawardee organization and situation ECkA ARRA T&Cs Page 7 oi 7 Ex. D Att. 4 EXHIBIT D ATTACHMENT 5 FEDERAL INTELLECTUAL PROPERTY PROVlSlOMS Intellectual Property Provisions (NRD-1003) Nonresearch and Development Under this Agreement, the following intellectual property provisions apply to the rights of the Energy Commission and the U.S. Department of Energy (DOE). Nonprofit organizations are subject to the intellectual property requirements at 10 CFR 600.1 36(a), (c) and (d). All other organizations are subject to the intellectual property requirements at 10 CFR 600.1 36(a) and (c). 10 CFR 600.1 36 lntanaible property. (a) The Energy Commission may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. DOE reserves a royalty- free, nonexclusive and irrevocable right to reproduce, publish or otherwise use the work for Federal purposes, and to authorize others to do so. (c) DOE has the right to: (1) Obtain, reproduce, publish or otherwise use the data first produced under an award; and (2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. (d) (1) In addition, in response to a Freedom of Information act (FOIA) request for research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law, the DOE shall request, and the Energy Commission shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If the DOE obtains the research data solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect the costs incurred by the agency, the Energy Commission, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)). ECAA ARPA T&Cs Page 1 of 1 Ex. D Att. 5 EXHIBIT D ATTACHMENT 6 PROJECT TYPE METRICS Metrics Activity: The key metrics to be reported will vary by project type. The minimum information to be reported, by project activity type, is listed below. The project type metrics to be reported for this award are checked below. nBuilding Codes and Standards Name of new code adopted Name of old code replaced Number and percentage of new and existing buildings covered by new code Other: n~uildin~ Retrofits Number of buildings retrofitted, by sector Square footage of buildings retrofitted, by sector Other: nclean Energy Policy Number of alternative energy plans developed or improved Number of renewable portfolio standards established or improved Number of interconnection standards established or improved Number of energy efficiency portfolio standards established or improved Number of other policies developed or improved Other: nBuilding Energy Audits Number of audits performed, by sector Floor space audited, by sector Auditor's projection of energy savings, by sector Other: O~ner~~ Efficiency Rating and Labeling Types of energy-consuming devices for which energy-efficiency rating and labeling systems were endorsed by the State government, schools, or institutional procurement Other: a~overnment, School, Institutional Procurement Number of units purchased, by type (e.g., vehicles, office equipment, HVAC equipment, streetlights, exit signs) Other: nlndustrial Process Efficiency (kwh equivalents) Reduction in natural gas consumption (mmcf) Reduction in fuel oil consumption (gallons) Reduction in electricity consumption (MWh) Y Other: Page 1 of 2 Ex. D AK. 6 nlndustrial Retrofit Support Number of buildings retrofitted, by industry type Square footage of buildings retrofitted, by industry type Other: n~oans and Grants Number and monetary value of loans given Number and monetary value of grants given * Other: m~enewable Energy Market Development Number and size of solar energy systems installed Number and size of wind energy systems installed Number and size of other renewable energy systems installed Other: m~ax Credits Monetary value of tax credits given, by sector Other: n~inancial Incentives for Energy Efficiency and Other Covered Investments Number and monetary value of financial incentive provided, by sector Total value of investments incentivized, by sector Other: O~echnical Assistance Number of information transactions contacts (for example, webinar, site visit, media, fact sheet) in which energy efficiency or renewable energy measure were recommended, by sector Other: n~rans~ortation Number of alternative fuel vehicles purchased Number of conventional vehicles converted to alternative fuel use e Number of new alternative refueling stations emplaced Number of new carpools and vanpools formed Number of energy-efficient traffic signals installed Number of street lane-miles for which synchronized traffic signals were installed Other: [Zl~orksho~s, Training, and Education Number of workshops, training, and education sessions held, by sector Type of workshops, training, and education sessions held Number of people attending workshops, training, and education sessions, by sector Other: nother Activities Not Previously Defined e Pertinent metric information for any activity not defined above should be captured and included as needed Other: a Other: Other: ECAA ARRA T&Cs Page 2 of 2 Ex. D Att. 6 EXHIBIT D ATTACHMENT 7 DAVIS-BACON AND RELATED ACTS 29 C.F.R. 5 5.5 PROVISIONS Pursuant to 29 C.F.R. 5 5.5, the following clauses apply to any contract in excess of $2,000 that is entered into for the actual construction, alteration andlor repair, including painting and decorating, of a public building or public work, or building or work financed in whole or in part from Federal funds or in accordance with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a loan, grant or annual contribution (except where a different meaning is expressly indicated), and which is subject to the labor standards provisions of any of the acts listed in 29 C.F.R. § 5.1: (1) Minimum wages. (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3) ), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section l(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(l)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph (a)(l)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: ECAA ARRA T&Cs Page 1 of 8 Ex. D Att. 7 (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 2021 0. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(l)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (2) Withholding. The Energy Commission shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held ECAA ARRA T&Cs Page 2 of 8 Ex. D Att. 7 by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of I937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records. (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section l(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(l)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section l(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the U.S. Department of Energy (DOE) if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to DOE. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to DOE if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit them to the applicant, sponsor, or owner, as the case may be, for transmission to DOE, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this ECkA ARRA T&Cs Page 3 of 8 Ex. D Att. 7 section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, sponsor, or owner). (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (I) That the payroll for the payroll period contains the information required to be provided under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Energy Commission or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and trainees-- (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency ECAP. ARRA T&Cs Page 4 of 8 Ex. D Att. 7 (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. ln addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. ECkA ARRA T&Cs Page 5 of 8 Ex. D Att. 7 (5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. (6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(l) through (10) and such other clauses as the (write in the name of the Federal agency) may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. (7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. (1 0) Certification of eligibility. (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(I ). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.1 2(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. - (b) Contract Work Hours and Safety Standards Act. The Agency Head shall cause or require the contracting officer to insert the following clauses set forth in paragraphs (b)(l), (2), (3), and (4) of this section in full in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by § 5.5(a) or 4.6 of part 4 of this title. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. ECAA ARRA T&Cs Page 6 of 8 Ex. D Att. 7 (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(l) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(l) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(l) of this section. (3) Withholding for unpaid wages and liquidated damages. The Energy Commission shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(l) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(l) through (4) of this section. (c) In addition to the clauses contained in paragraph (b), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in § 5.1, the Agency Head shall cause or require the contracting officer to insert a clause requiring 7 that the contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the Agency Head shall cause or require the contracting officer to insert in any such contract a clause providing that the records to be maintained under this paragraph shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the (write the name of agency) and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job. (The information collection, recordkeeping, and reporting requirements contained in the following paragraphs of this section were approved by the Office of Management and Budget: Paragraph OMB Control Number (a)(l )(ii)(B) 121 5-0140 )(ii>(C) 121 5-0140 (3x7 )(iv) 1215-0140 ECAA ARRA TGCs Page 7 of 8 Ex. D Att. 7 SIGNATURE As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the requirements of 10 C.F.R. § 5.5. Name of Applicant: City of Carlsbad Printed Name and Title of Authorized Representative: Lisa Hi 1 dabrand, City Manager 4 - 12/28/09 WNATURE DATE ECAA ARRA TGCs Page 8 of 8 Ex. D Ati. 7