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HomeMy WebLinkAboutC2013-364 - 12/17/2013 - Approved *'**. - BROADBANDUSA TEXAS A&M .4,fir CONNECTING AMERICA'S COMMUNITIES U N I V E R S I T Y TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT This Sub-Recipient Grant Agreement (together with the exhibits attached hereto, this "Agreement") is entered into as of this Il day of December, 2013 (the "Effective Date") between Texas A&M University, a member of the Texas A&M University System and an agency of the State of Texas ("Recipient" or "TAMU"), located in College Station, Texas, and the City of Corpus Christi ("Sub-Recipient"). Recipient and Sub-Recipient are sometimes referred to herein individually as a"Party" and collectively as the "Parties" hereto. WHEREAS, Recipient has been awarded Grant No. NT10B1X5570107 ("Grant") by the United States Department of Commerce ("DOC"), National Telecommunications and Information Administration ("NTIA"), under American Recovery and Reinvestment Act ("ARRA") funding, for a Broadband Technology Opportunities Program ("BTOP") project, CFDA No. 11.557, entitled Recovery Act-Texas Pipes ("Texas Pipes"), a copy of which Grant Award is attached hereto as Exhibit A. WHEREAS, the Parties desire that the City of Corpus Christi be a Sub-Recipient under the Grant. WHEREAS, in addition to ARRA compliance requirements, each BTOP grant award recipient is subject to program-specific compliance obligations, which the Parties agree to follow. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows: ARTICLE 1: NATURE OF SUB-RECIPIENT GRANT 1.1 Both the services contemplated by this Agreement and any Federal funds to pay for these services are governed by the terms and conditions of the Grant and all applicable terms and conditions of the Grant, except those providing for payment by DOC to Recipient, are incorporated by reference herein, including the following: a. Grant No. NT10B1X5570107, Exhibit A; b. Statement of Work and Schedule, Exhibit B; c. Flow-Down Provisions, Exhibit C; d. DOC Financial Assistance Standard Terms and Conditions, March 2008, Exhibit D; e. American Recovery and Reinvestment Act of 2009 ("ARRA") — DOC Standard Terms and Conditions), Exhibit E; f. Special Award Conditions, NT10BIX5570107, Exhibit F; g. Line Item Budget, Exhibit G; h. 73 Fed. Reg. 7696 (February 11, 2008), Department of Commerce Pre-Award Notification Requirements for Grant and Cooperative Agreements, Exhibit H; 2013-364 12/17/13 M2013-197 TAMU INDEXED TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT i. NTIA Certification Regarding Lobbying, Exhibit I; j. Special Conditions Addendum for DOC-Vendor Contracts, Exhibit J; k. BTOP Recipient Guidance on Signage, Exhibit K; 1. NTIA BTOP Buy American Notice 74 FR 31410, Exhibit L; and m. Cost-Sharing Report Formats, Exhibit M 1.2 Regulations differ governing the requirements as to different classes of Sub-Recipients under this Grant. Certain of these differing relevant regulations are set out in tabular form below and each Sub-Recipient agrees to fully observe the requirements relevant to its entity type: Organization Type Administrative Cost Principles Audit Regulations and Requirements Standards For Profit Entities 15 CFR Part 141 48 CFR Part 31.2 Government Auditing (Federal Acquisition Standards(The Yellow Book) Regulations) OMB Circular A-133, Subpart B §235 Institutions of Higher 15 CFR Part 14 2 CFR Part 220 OMB Circular A-1333 Education (OMB Circular A-21)2 Non Profit 15 CFR Part 14 2 CFR Part 230 OMB Circular A-133 Organizations (OMB Circular A-122) Hospitals 15 CFR Part 14 45 CFR,Part 74(E) OMB Circular A-133 State,Local and 15 CFR Part 244 2 CFR Part 225 OMB Circular A-133 Tribal Governments (OMB Circular A-87)5 All references to the "Grant" in this Agreement shall be deemed to include all of the foregoing. Sub-Recipient acknowledges receipt of a copy of, and represents that it has read and understands, all terms and conditions of the Grant. Sub-Recipient further agrees to comply with all applicable Federal laws, executive orders, regulations and policies governing the Texas Pipes Program, whether or not explicitly listed herein. ARTICLE 2: ADDITIONAL SUB-RECIPIENT RESPONSIBILITIES 2.1 Sub-Recipient agrees to timely perform all of the activities and obligations that Recipient requests Sub-Recipient to perform and that Recipient reasonably believes are necessary or 1 15 C.F.R.Part 14,Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education,Hospitals,Other Non-Profit,and Commercial Organizations(available on-line at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title 15/15cfr 14_main_02.tp1). 2 2 C.F.R.Parts 215 and 220(OMB Circular A-21),published in 70 Federal Register 168,Cost Principles for Educational Institutions(available on-line at http://www.gpo.gov/fdsys/pkg/FR-2005-08-31/pdf/05-16648.pdf). 3 OMB Circular A-133,Audits of States,Local Government, and Non-Profit Organizations(available on-line at http://www.whitehouse.gov/sites/default/files/omb/assets/a133/a 1 33_revised_2007.pdf). 4 15 CFR Part 24,Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments(available on-line at http://oam.ocs.doc.gov/docs/GRANTS/15cfr24.pdf). 5 2 C.F.R.Parts 225 (OMB Circular A-87),published in 70 Federal Register 168,Cost Principles for State,Local, and Indian Tribal Governments(available on-line at http://www.whitehouse.gov/sites/defauldfiles/omb/assets/omb/fedreg/2005/083105_a87.pdf) TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT appropriate for Sub-Recipient to perform in connection with Recipient's effort to ensure compliance with the terms and conditions of the Grant. Sub-Recipient shall comply, and shall require any contractor or subcontractor performing work on its behalf to comply, with all terms and conditions of the Grant and all applicable Federal, state and local laws and regulations. Sub- Recipient shall not take any action or omit to take any action that would reasonably be expected to cause, or that causes, directly or indirectly, a breach or default of the Grant, including a breach or default of the Grant by Recipient. 2.2 Sub-Recipient acknowledges and agrees that any action or failure to act by Sub- Recipient, or its officers, employees, subcontractors, agents, representatives or any Person (hereinafter defined) performing work under the Grant on behalf of Sub-Recipient (collectively, "Representatives"), that Recipient reasonably believes may jeopardize the funds available to Recipient under the Grant will provide Recipient the right, but not the obligation, to take any action that Recipient believes is necessary to protect its interests, including imposing sanctions on Sub-Recipient or terminating this Agreement pursuant to Section 8.2. 2.3 Insurance: Non-Governmental Subrecipients a. From and after the Effective Date and for so long as this Agreement is in effect, Sub- Recipient shall procure and maintain, at Sub-Recipient's sole cost and expense, the following insurance against claims which may arise from or in connection with the Grant, this Agreement or the performance of obligations hereunder by Sub-Recipient or its Representatives: (i) Commercial General Liability insurance, including contractual liability, products and completed operations, personal injury, and contractual liability enforcement, with a limit of liability of not less than $2,000,000 per occurrence and not less than $5,000,000 general aggregate limit for each policy year; (ii) Worker's Compensation insurance with statutory limits; (iii) Employer's Liability insurance with a limit of liability of not less than $2,000,000; (iv) Automobile Liability insurance with a limit of liability of not less than $1,000,000 per accident, including owned, non-owned and hired vehicles; (iv) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of this Agreement, with a combined single limit per occurrence of not less than $1,000,000; (v) Course of Construction insurance covering the completed value of the project with no coinsurance penalty provisions; and (vi) such other insurance policies and with such limits as may be required by DOC or as Recipient shall in good faith deem necessary from time to time. b. Sub-Recipient shall, within 10 days after the Effective Date, deliver to Recipient an original certificate of the policy or policies of all insurance required to be provided hereunder. Each policy of insurance provided by Sub-Recipient shall: TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT (i) be issued by a company or companies approved by Recipient and rated not less than A-IX, (ii) name Recipient and DOC as additional insureds, (iii) provide that all proceeds shall be payable to Recipient, (iv) provide that the policies may not be cancelled or modified in any way except upon thirty (30) days prior written notice to Recipient, (v) provide that no act or thing done by Sub-Recipient shall invalidate the policy as against Recipient, (vi) contain a waiver of subrogation by the insurance carrier with respect to all obligations assumed by Sub-Recipient pursuant to this Agreement; and (vii) otherwise be in such form as shall be reasonably acceptable to Recipient. Sub-Recipient shall require and verify that all permitted contractors and subcontractors acting on Sub-Recipient's behalf maintain insurance meeting the requirements stated herein. c. Sub-Recipient shall promptly provide to Recipient copies of any and all notices (including notice of non renewal), claims and demands which Sub-Recipient receives from insurers. 2.4 Notwithstanding anything in this Agreement to the contrary, to the fullest extent permitted by law, Sub-Recipient agrees to indemnify, defend and hold harmless Recipient, its officers, directors, employees, subcontractors, agents and representatives from and against all claims, liens, suits,judgments, losses, attorneys' fees, expenses and damages brought, recovered or exacted for, or on account of, or relating to any acts or omissions of Sub-Recipient or its Representatives. 2.5 NO EVENT SHALL RECIPIENT BE LIABLE TO SUB-RECIPIENT FOR, AND SUB- RECIPIENT HEREBY WAIVES THE RIGHT TO RECOVER, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, LOSS OF USE OR LOSS OF BUSINESS OPPORTUNITY), PUNITIVE, EXEMPLARY AND SIMILAR DAMAGES. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION AND CLAIMS AGAINST RECIPIENT, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY OTHER TORTS. ARTICLE 3: STATEMENT OF WORK 3.1 Sub-Recipient agrees to perform its work in accordance with the schedule set forth in the Statement of Work, which is attached hereto as Exhibit B and incorporated by reference herein (the "Statement of Work"). If Sub-Recipient at any time determines that it may be unable to perform timely any of its obligations under the Statement of Work, or any of its obligations under any other provision of this Agreement, Sub-Recipient shall provide immediate notice thereof to Recipient, including all information relating to any delay and the date upon which Sub-Recipient expects to complete performance. This provision, and such notice, shall not relieve Sub-Recipient of its obligations to timely perform all terms and conditions of this Agreement, nor does this provision or such notice take away from Recipient, or in any way TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT diminish, any of Recipient's rights under this Agreement where Sub-Recipient fails to timely perform under the Statement of Work or any other provision of this Agreement, including Recipient's right to impose sanctions on Sub-Recipient or terminate this Agreement for breach pursuant to Section 8.2. 3.2 In furtherance of Section 3.1 and the other provisions of this Agreement, the Parties hereby acknowledge and agree that, in order to timely perform and fulfill the terms and conditions of the Grant, the ongoing collaboration of the Parties is critical and the Parties need to work together in good faith to timely fulfill their joint and respective obligations relating to, arising under or in connection with this Agreement and the Grant. Sub-Recipient acknowledges and agrees that compliance with the Statement of Work, including active participation in meetings during which Sub-Recipient is prepared to discuss the issues at hand, is critical to the successful performance of the Grant. In the event of Sub-Recipient's willful, persistent or repeated failure to participate in meetings pursuant to the Statement of Work, whether such meetings are in person, telephonically or otherwise, Recipient shall have the right to terminate this Agreement for breach. For purposes of clarification, if Sub-Recipient fails to be prepared for or participate in two or more in person meetings in any year or four or more telephone meetings in any year, such failure shall be deemed a breach of this Agreement and Recipient shall have the right to terminate this Agreement under Section 8.2. 3.3 Sub-Recipient shall comply with 15 C.F.R. §§14.31 — 14.37 in connection with the management and disposition of property used in connection with the performance of the Grant. 3.4 Sub-Recipient shall maintain written standards of conduct governing the performance of its Representatives engaged in the award and administration of contracts relating to the performance of the Grant. Such standards shall comply with the requirements set forth in 15 C.F.R. §14.42. 3.5 Sub-Recipient shall establish written procurement procedures in accordance with the requirements set forth in 15 C.F.R. §14.44, and shall follow such procedures in connection with contracting or subcontracting for goods or services in connection with the performance of the Grant. 3.6 Sub-Recipient shall, to the greatest extent practicable, purchase American-made equipment and products with funding provided under the Grant. ARTICLE 4: FINANCIAL REPORTING AND PAYMENT 4.1 As consideration for the services described in Exhibit B, the parties shall contribute funding in accordance with Exhibit G. 4.2 Sub-Recipient shall pay Recipient $144,000 upon signature of this Agreement. Sub-recipient certifies that these funds were not received under another Federal award. Checks should be made to Texas A&M University and payment forwarded to the following address: Texas A&M University-Sponsored Research Services 400 Harvey Mitchell Parkway South, Suite 300 College Station, Texas 77845-4375 Attn: Deposits TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT 4.3 Sub-Recipient shall also contribute cost-sharing funds in the amount of $322,590 in accordance with the budget in Exhibit G. Cost-sharing is required to be completed in accordance 15 CFR Part 14 and the budget appended and incorporated as Exhibit G. Federal funds may not be used to meet the Subrecipient's cost-sharing obligation for this Agreement. Cost- sharing is required to be reported with each invoice in accordance with the Cost Sharing Report Format attached and incorporated Exhibit M. ARTICLE 5: ADMINISTRATION OF SUB-RECIPIENT PERFORMANCE 5.1 This Agreement is subject to Subpart C of 2 C.F.R. Part 1326, Government-wide Debarment and Suspension (Non-Procurement). 5.2 Sub-Recipient shall comply with 31 U.S.C. §1352, as implemented by 15 C.F.R. Part 28, New Restrictions on Lobbying. Sub-Recipient shall provide to Recipient a completed "Disclosure of Lobbying Activities" (Form SF-LLL) disclosing the use of non-Federal funds for lobbying. Sub-Recipient shall submit such Form SF-LLL to Recipient within fifteen (15) calendar days following the end of any calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously submitted by Sub-Recipient. Sub-Recipient shall flow down this reporting requirement to any sub-awards, contracts or subcontracts exceeding $100,000 in connection with work under this Grant. 5.3 Sub-Recipient shall not sub-grant or sub-contract any part of this Agreement, including any obligations under the Statement of Work, to any individual, entity, agency, association or other organization, including any governmental authority, instrumentality, self-regulatory organization, commission or organization, any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing (each, a "Person"), without the prior written approval of Recipient. Subrecipients shall insure that vendors agree to comply with vendor provisions applicable to this Grant. A form Vendor Agreement that will be utilized by Recipient is attached as Exhibit J hereto. 5.4 Sub-Recipient shall grant Recipient, DOC and the Comptroller General of the United States access to and the right to inspect any and all property created by or in the control of Sub- Recipient or its Representatives that relates to the Grant, including any and all books, records, accounts, invoices, contracts, leases, payrolls, time sheets, canceled checks, statements, and other documents, papers and records of Sub-Recipient and its Representatives, whether written, printed, recorded, produced or reproduced by any electronic, mechanical magnetic or other process or medium in order to make audits inspections, site visits, excerpts, transcripts, copies, or other examinations. 5.5 Sub-Recipient shall comply with the background screening requirements set forth in 73 Fed. Reg. 7696 (February 11, 2008) and Section F of the Department of Commerce Financial Assistance Standard Terms and Conditions. 5.6 Sub-Recipient shall comply with all record retention requirements required by law, including the requirements set forth in 15 C.F.R. §14.53. 5.7 Sub-Recipient represents and warrants that it (i) is not currently identified on any Office of Foreign Assets Control List; (ii) is not a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT prohibition of United States law, regulation or Executive order of the United States; and (iii) does not provide "material support" to acts of terrorism as defined in the USA Patriot Act. Sub- Recipient agrees to confirm this representation and warranty in writing on an annual basis if requested by Recipient to do so. 5.8 Sub-Recipient shall comply with the Flow-Down Provisions of Exhibit C hereto. 5.9 Sub-Recipient shall timely provide Recipient, at Recipient's request, such information as Recipient shall determine necessary to comply with its reporting requirements, including those imposed by 15 C.F.R. §§ 14.50 - 14.52. 5.10 Sub-Recipient acknowledges that in connection with the Grant, DOC requires a first priority lien on and security interest in all real and personal property, including equipment, acquired, purchased or improved by or on behalf of Sub-Recipient (collectively, the "Collateral"). (a) When and as directed by Recipient, Sub-Recipient agrees to execute and deliver, or cause to be executed and delivered, in favor of DOC one or more Form UCC-1 financing statements relating to the Collateral, which shall be filed in the appropriate records of the proper jurisdiction, as well as an agreement and mortgage or similar financing statement relating to any real property constituting Collateral, which shall be filed in the appropriate records of the proper jurisdiction. Such security interests shall be renewed every five years, over the useful life of the equipment in accordance with the requirements of DOC. In addition, Sub-Recipient shall execute and deliver to Recipient, at any time and from time to time, at Sub-Recipient's sole cost and expense, all assignments and financing statements pursuant to the UCC, including continuation statements thereof, and other documents requested by Recipient including any further instruments, documents, security agreements, amendments, supplements, substitutions, modifications and powers of attorney and to take all actions requested from time to time by Recipient to create, perfect, protect and enforce the security interest of the Collateral, whether now or hereafter acquired. (b) Sub-Recipient hereby covenants that: (i) Sub-Recipient shall use the Collateral solely for the purposes for which the Grant was awarded and such use shall at all times be in compliance with the terms and conditions set forth in the Grant; (ii) Sub-Recipient shall defend, at its sole cost, its title to the Collateral and the security interest of DOC against all claims of all third parties; (iii) Sub-Recipient shall not make or permit to be made in the future any assignment, pledge, hypothecation, encumbrance or transfer of any of the Collateral and will keep all of the Collateral free from all levies, attachments, liens, security interests, encumbrances and charges of whatsoever kind, whether arising by judicial process or otherwise, and will pay or cause to be paid promptly when due all taxes, fees, assessments and other charges now or hereafter imposed upon the Collateral, and (iv) Sub-Recipient shall keep and maintain adequate records and books of account with respect to the Collateral. ARTICLE 6: CONFIDENTIALITY 6.1 Subject to Sections 6.4 and 6.5, no Party will, without the prior written consent of the other Party, disclose any Confidential Information of the other Party to any third party acquired TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT during the performance of this Agreement, or for a period of three (3) years following the termination of the Grant. Information will be considered Confidential Information of a Party if (i) it is disclosed by a Party to the other Party in tangible form and is conspicuously marked "Confidential", "Proprietary" or the like; (ii) it is disclosed by a Party to the other Party in non- tangible form and is identified as confidential at the time of disclosure; (iii) a Party receives such information from a third party subject to an obligation of confidentiality, or (iv) it contains the disclosing Party's customer lists, customer information, technical information, pricing information, pricing methodologies, or information regarding the disclosing Party's business planning or business operations. In addition, notwithstanding anything in this Agreement to the contrary, the terms of this Agreement will be deemed Confidential Information of each Party. 6.2 Information will not be deemed Confidential Information hereunder if such information (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party. 6.3 Each Party will secure and protect the Confidential Information of the other Party (including the financial terms of this Agreement) in a manner consistent with the steps taken to protect its own trade secrets and confidential information, but not less than a reasonable degree of care. 6.4 Each Party may disclose the other Party's Confidential Information where (i) the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other Party with adequate time for such other Party to seek a protective order; (ii) if in the opinion of counsel for such Party, disclosure is advisable under any applicable securities laws regarding public disclosure of business information; or (iii) the disclosure is reasonably necessary and is to that Party's, or its Affiliates', employees, officers, directors, attorneys, accountants and other advisors, or the disclosure is otherwise necessary for a Party to exercise its rights and perform its obligations under this Agreement, so long as in all cases referenced in the clauses above the disclosure is no broader than necessary and the Person who receives the disclosure agrees prior to receiving the disclosure to keep the information confidential. To the extent practicable, each Party is responsible for ensuring that any Confidential Information of the other Party that the first Party discloses pursuant to this Section (other than disclosures pursuant to clauses (i) and (ii) above that cannot be kept confidential by the first Party and disclosures pursuant to clause (iii) to a court or arbitrators where a Party seeks to exercise its rights under this Agreement) is kept confidential by the Person receiving the disclosure to the same extent that the receiving Party must keep the information confidential. 6.5 Notwithstanding anything in this Agreement to the contrary, each Party may disclose the other Party's Confidential Information (other than information deemed confidential pursuant to Section 6.1(iii)) to its Members unless both Parties agree in writing that such information shall be kept confidential as to the other Party's Members. ARTICLE 7: INTELLECTUAL PROPERTY TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT 7.1 No license is conveyed pursuant to this Agreement in: a. Any "Invention", as defined in section (c) below, conceived and first reduced to practice or made the subject of a patent application in accordance with patent law in the United States, or in any other country or region, before the Effective Date of this Agreement or independent of work conducted pursuant to the Statement of Work under this Agreement ("Background Invention"); or b. Technical data or computer software developed by or on behalf of a Party before the Effective Date of this Agreement or independent of work conducted pursuant to the Statement of Work under this Agreement ("Background Technical Data and Software"). c. As used in this Section, Invention shall mean any invention or discovery that is or may be patentable or otherwise protectable under 35 U.S.C. 7.2 Except as provided in Section 7.3, neither Party claims by virtue of this Agreement any right, title, or interest in or to any issued patent or pending patent applications owned or controlled by the other Party. 7.3 The rights in any Invention conceived or first reduced to practice solely or jointly in connection with the performance of the Grant will be determined under the Federal laws pertaining to intellectual property created in the course of federally funded grants. Recipient shall retain title to any Inventions, patents, pending patent applications or other intellectual property rights in Inventions conceived or first reduced to practice by its employees in the course of performance of the Grant. Sub-Recipient shall retain title to any Inventions, patents, pending patent applications or other intellectual property rights in Inventions conceived or first reduced to practice by its employees in the course of performance of the Grant. Recipient and Sub- Recipient shall have joint ownership in any Inventions conceived jointly by their employees during the course of performance of the Grant. Recipient may apply for a non-exclusive or exclusive license to such Inventions in accordance with 37 C.F.R Part 404. 7.4 Subject to the rights of the Federal Government under applicable law, Recipient and Sub- Recipient shall have the right to receive and use technical data or software that is created in connection with the performance of the Statement of Work. ARTICLE 8: TERM AND TERMINATION 8.1 Unless earlier terminated in accordance with Section 8.2, this Agreement shall be effective as of June 13, 2011 and shall continue in full force and effect until the September 30, 2013 (such period, the "Term"). 8.2 This Agreement may be terminated prior to its expiration as follows, and such termination shall be in accordance with 15 C.F.R. § 14.61(a)(3) and 15 C.F.R. § 14.5 to the extent that such Sections are applicable to such termination: a. The Parties may terminate this Agreement by mutual written agreement. b. In the event that the Grant expires or is terminated or the Grant funds become unavailable during the term of this Agreement, Recipient may terminate this Agreement upon notice to Sub-Recipient. c. Recipient may terminate, in whole or in part, the right of Sub-Recipient to proceed with the performance of this Agreement or any aspect of the Statement of Work, for TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT convenience, and without further obligation except that Sub-Recipient shall be entitled to payment for work properly performed pursuant to the Grant prior to the effective date of such termination. d. If for any reason whatsoever Sub-Recipient breaches any provision of this Agreement, Recipient shall have the right to terminate this Agreement, in whole or in part at its discretion, effective immediately upon notice to Sub-Recipient. Such notice shall specify the reason for such termination and the termination date. Time is of the essence with respect to all of Sub-Recipient's obligations under this Agreement. For the avoidance of doubt, any failure by Sub-Recipient to timely perform or fulfill any of its obligations shall be deemed a breach of this Agreement. e. Subject to the rights of any trustee in bankruptcy and to applicable law, in the event of the appointment of a trustee, receiver, or liquidator for all or a portion of Sub- Recipient's property, or for any act of bankruptcy by Sub-Recipient as defined in the Bankruptcy Act, as amended, or for any voluntary petition in bankruptcy by Sub- Recipient, Recipient may terminate the right of Sub-Recipient to proceed with the performance of this Agreement without further obligation. 8.3 In the event that this Agreement expires or is terminated pursuant to this Article 8, Sub- Recipient shall cease work as of the date of expiration or termination, as the case may be, and shall not incur obligations after such date. 8.4 Upon the expiration of this Agreement or upon a termination of this Agreement, all right and title of Sub-Recipient to all real and personal property, including equipment, that has been purchased, acquired or improved by or on behalf of Sub-Recipient and used for joint build components of the network infrastructure pursuant to the Statement of Work shall automatically be transferred to Recipient, subject to applicable law and subject to the security interest of DOC in such property contemplated by Section 5.10. Sub-Recipient agrees to execute and deliver to Recipient such agreements, assignments, documents, and instruments as may be requested by Recipient in order to effectuate such transfer. ARTICLE 9: DISPUTES 9.1 In the event a dispute between Recipient and Sub-Recipient arises as a result of an act or omission by DOC, such dispute shall be resolved in accordance with the dispute resolution procedures arising under the Grant. The Parties agree to be bound by a decision resulting from such procedures. 9.2 In the event of any dispute between Recipient and Sub-Recipient relating to or arising from the terms or conditions of this Agreement, including the Statement of Work, or the performance by Sub-Recipient of its obligations hereunder, the Chief Executive Officers of each Party shall promptly meet to seek to resolve the dispute in good faith. ARTICLE 10: MISCELLANEOUS 10.1 This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior written and verbal agreements, representations, promises or understandings between the Parties. This Agreement will not be binding on either Party until and unless it is fully executed by both Parties. Any amendments to this Agreement TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT will only be effective if they are in writing and executed by both Parties. In the event of a dispute arising from an ambiguity in the terms and conditions of this Agreement, the Parties acknowledge that the Grant Application by Recipient, as well as the written correspondence of the Parties relating hereto and thereto, shall serve as relevant information to determine the intent of the parties and the interpretation thereof. 10.2 The Parties to this Agreement are independent of each other in all matters. The employees or agents of one Party shall not be deemed to be the employees or agents of the other Party for any purpose under federal or state law. Neither Party shall have the right, power or authority to create any obligations, express or implied, on behalf of the other except to the extent provided herein. Nothing contained in this Agreement is intended to create, or shall in any event or under any circumstance be construed as creating, a partnership or a joint venture between the Parties. 10.3 Sub-Recipient may use independent contractors, subcontractors or other non-employees (collectively, "Non-employees") to perform, or to act on behalf of Sub-Recipient with respect to, its obligations hereunder. Sub-Recipient's use of Non-employees does not release Sub-Recipient from any of its liabilities or obligations under this Agreement. Sub-Recipient is responsible for all actions and omissions of its Non-employees when its Non-employees are performing for or acting on behalf of Sub-Recipient, and in addition, Sub-Recipient is also responsible for all acts of its invitees or visitors at any office, facility, property or other location that is visited or used in connection with the Grant or this Agreement (the "Properties"). 10.4 If any provision of this Agreement shall be determined to be illegal, invalid, or unenforceable, the remaining provisions shall continue in full force and effect. Each provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. 10.5 Any notice required or permitted under this Agreement must be in writing, and shall be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address set out below. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile transmission, email or other commercially reasonably means and will be effective when actually received. Recipient and Sub-Recipient can change their respective notice address by sending to the other party a notice of the new address. Notices should be addressed as follows: Recipient: Texas A&M University Attn: Director of Telecommunications Address: Mail Stop 1174 College Station, Texas 77843-1174 Fax: 979-847-1111 E-mail: telecom @tamu.edu With a copy to: Attn: Marcie Avery Address: 400 Harvey Mitchell Parkway South Suite 300 College Station, Texas 77845 TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Phone: 979-862-6451 E-mail: mavery @tamus.edu Sub-Recipient: City of Corpus Christi Attn Admin: Michael Armstrong Address: 1201 Leopard Street Corpus Christi, Texas 78401 Phone: 361-826-3740 E-mail: Michaelar @cctexas.com Attn Technical: David Trevino Address: 1201 Leopard Street Corpus Christi, Texas 78401 Phone: 361-826-3754 Cell: 361-876-2310 E-mail: dtrevino @ cctexas.com 10.6 Failure of either Party to insist on strict performance of any of the conditions, covenants, terms or provisions of this Agreement or to exercise any of its rights hereunder shall not waive such rights, but such Party shall have the right to enforce such rights at any time and take such action as might be lawful or authorized hereunder, either at law or in equity. 10.7 This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which together shall constitute but one and the same agreement. 10.8 Each Party hereby represents and warrants that it (i) has full power and authority to execute and perform this Agreement (without needing any other authorizations from any other Person), and (ii) has taken all action necessary to authorize the execution and performance of this Agreement. In addition, each person executing this Agreement on behalf of a Party, does hereby warrant that such person has the right and authority to execute this Agreement on behalf of the relevant Party and that all the procedures and approvals that are necessary and required to enable such person to properly execute this Agreement and to bind the represented Party in accordance with the terms hereof have been followed and secured. At a Party's request, the other Party will provide sufficient evidence confirming the accuracy of the above warranties. 10.9 Each Party agrees to execute and deliver all documents and to perform all further acts as may be reasonably necessary to carry out the provisions of this Agreement. 10.10 The provisions of this Agreement that by their nature are continuing or need to continue to ensure a Party's rights hereunder are fully protected and shall continue in full force and effect and shall bind the Parties beyond any expiration or earlier termination of this Agreement. 10.11 Any assignment or delegation of all or part of this Agreement or rights or duties hereunder, including assignments by virtue of merger, reorganization, or other similar transactions, by Sub-Recipient shall be void, unless prior written consent thereto is given by Recipient, which consent Recipient may withhold at its sole discretion. 10.12 The substantive laws of the State of Texas govern all matters arising out of or relating to this Agreement and all of the transactions it contemplates. Pursuant to Section 85.18 (b), Texas TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Education Code, venue for a state court suit filed against TAMU, or any officer or employee of Texas A&M University is in the county in which the primary office of the chief executive officer of the system or component, as applicable, is located. At execution of this Agreement, such county is Brazos County, Texas. 10.13 The Parties acknowledge that each Party and its counsel have reviewed this Agreement and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement. 10.14 The headings and captions in this Agreement are solely for convenience and shall not be considered in construing or interpreting any provision in this Agreement. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 10.15 Non-Waiver. Sub-recipient expressly acknowledges that Recipient is an agency of the State of Texas and nothing in this Agreement will be construed as a waiver or relinquishment by Recipient of its right to claim such exemptions, privileges, and immunities as may be provided by law. IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first above written. Texas A&M University City of Co pus "p■ I Ii By I►r�I_l!.! 'Ala__��i / /Name: Katherine V. Kissmann Name: 'on Olson �� JO Title: Director, Contracts & Grants Title: Cit, of C. •us Christi City Manager Date: December 2, 2013 Date: ATTEST GHANA cm'SFcaET%sRu l'A/013..--..19.1.AU•nth ki.. I A MUNCH._.......J. / o SECR�TAR TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit A Grant No. NT 10B 1X5570107 FORM CD-450 (REV 01/09) © GRANT ❑ COOPERATIVE AGREEMENT U.S.DEPARTMENT OF COMMERCE AWARD NUMBER FINANCIAL ASSISTANCE AWARD NT10B1X5570107 RECIPIENT NAME Texas A&M University STREET ADDRESS 750 Agronomy Rd FEDERAL SHARE OF COST $6,550,775.00 STE 2701 CITY,STATE,ZIP CODE College Station TX 77843-0001 RECIPIENT SHARE OF COST $2,992,286.00 AWARD PERIOD 08/01/2010-07/31/2013 TOTAL ESTIMATED COST $9,543,061.00 AUTHORITY The American Recovery and Reinvestment Act of 2009. CFDA NO.AND PROJECT TITLE 11.557 Recovery Act-Texas Pipes This award offer approved by the Grants Officer constitutes an obligation of Federal funding. By accepting this award offer,the Recipient agrees to comply with the award Terms and Conditions checked below. If this was a paper issued award offer,please send two signed documents to the Grants Officer and retain one set of signed award documents for your files. If this award offer is not accepted without modification within 30 days of receipt,the Grants Officer may unilaterally withdraw this award offer and de-obligate the funds. p Department of Commerce Financial Assistance Standard Terms and Conditions ❑ Government Wide Research Terms and Conditions ❑ Bureau Specific Administrative Standard Award Conditions El Award Specific Special Award Conditions El Line Item Budget 15 CFR Part 14,Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education,Hospitals,Other Non-Profit,and Commercial Organizations ❑ 15 CFR Part 24,Uniform Administrative Requirements for Grants and Agreements to States and Local Governments E] OMB Circular A-21,Cost Principles for Educational Institutions ❑ OMB Circular A-87,Cost Principles for State,Local,and Indian Tribal Governments ❑ OMB Circular A-122,Cost Principles for Non-Profit Organizations ❑ 48 CFR Part 31,Contract Cost Principles and Procedures El OMB Circular A-133,Audits of States,Local Governments,and Non-Profit Organizations Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements © REF: 73 FR 7696(February 11,2008). • Other(s) DOC American Recovery and Reinvestment Act Award Terms: 75 FR 3792 January 22,2010. 75 FR 10464 March 8,2010. SIGNATURE OF DEPARTMENT OF COMMERCE GRANTS OFFICER TITLE DATE Sonja Wyatt Grants Officer 07/18/2010 TYPE NAME AND SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL TITLE DATE Charlene Miller Assistant Vice President 09/13/2010 TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit B Statement of Work and Schedule Overview of Scope of Work Texas A&M University (TAMU) has been awarded a grant from the DOC-National Telecommunications Information Administration for the project entitled "Texas Pipes Project." TAMU has chosen to partner with the City of Corpus Christi (City) and others to complete this grant. As part of the grant project, fiber optic cables will be constructed and a network switch will be installed in support of City owned facilities as well as Texas A&M University-Corpus Christi owned facilities. In each case, the fiber network expansions will leverage existing City fibers. The project will also provide network switches for the network connections. The work contemplated in this scope of work is budgeted at $655,403, of which the City of Corpus Christi has agreed to fund $466,590.00 in cash, labor and material. The fiber optic cables will be installed by City of Corpus Christi staff with the conduits and handholes installed by Texas A&M University contracted personnel per City of Corpus Christi specifications under City supervision. Sites that will be connected under this Agreement in the City of Corpus Christ include: City Sites O.N. Stevens Waste Water Treatment Plant, 1301 Leopard St. Northwest Senior Center, 9725 Up River Road Northwest Library, 3202 McKinzie Road Flint Hills Police Department, Tuloso Road Fire Station Number 12, 2120 Rand Morgan Rd. OSO Waste Water Treatment Plant, 501 Nile Drive. In addition to the fiber construction, TAMU is also building fiber optic plant to several sites in the City of Corpus Christi. One of the sites that is connected under the TAMU portion of the grant is the carrier Hotel in Corpus Christi that houses Valley Telephone. This connection will make carrier access available for Internet access to customers of Valley Telephone Internet services. TAMU is also working on a WiMax 4G data network in the Corpus Christi area and a Public Safety 4G Broadband LTE network working in conjunction with Harris County. Financial Responsibilities: Under this agreement, Texas A&M University-Corpus Christi and network affiliates of the TAMUS Trans Texas Video Network (TTVN) will have no cost access to the fiber facilities for 20 years. This agreement is for use of the fiber only and does not include any maintenance agreements that may exist for TAMUCC fiber. TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT TAMU Tasks Consistent with the budget in Exhibt G, TAMU will order material and coordinate delivery/installation with the City. The City of Corpus Christi will develop the draft purchase order for the equipment to be used in the City's buildings according to TAMU Policies, State law and NTIA BTOP requirements. TAMU will provide project management and oversigtht of the installation. In addition, TAMU will facilitate a public event in the Corpus Christi area which will be coordinated with the City of Corpus Christi. TAMU contractors will provide the labor and material for City of Corpus Christi fiber raceways for buried fiber. This will include conduits, subducts, handholes, manholes, fiber markers building penetrations and any other material required. Once completed, operational control of all equipment will be transferred to The City of Corpus Christi. Ownership of asset will remain within Texas A&M University Sub-Recipient Tasks The City of Corpus Christi will provide specifications to Texas A&M University for both the fiber optic cables and the network switches. Once the equipment is delivered, The City will ensure its security until the installation. The City of Corpus Christi shall be responsible for the initial turn-up testing and ongoing monitoring of all systems, including any operational/repair/power costs of their switches. The City of Corpus Christi IT department will also assist with any City Permits required. The City of Corpus Christi will install all of the aerial fiber runs within the City Network, will splice BTOP fiber to the City fiber and will provide all material and labor for the O. N. Stevens Waste Water Treatment Plant. The City of Corpus Christi will support a public event with TAMU related to the project. Services Available to TAMU TAMU-CC will have unlimited access to fiber pairs made available by the City of Corpus Christi on the city fiber network at no cost. The fiber pairs will be lit using University owned optronics at data speeds deemed appropriate at that time. Services Available to Sub-Recipient The City of Corpus Christi will have the use of any of the fiber optic cables installed as a part of the Agreement. The City will allocate City fiber pairs as required, available and agreed to by the City and the University for University and related University use in support of the enbeth fiber installed under the Grant. In addition, TAMU-CC and TTVN will provide access to services, at a reasonable cost connecting outside of the City and Region on TAMU available networks. These services can include Public Safety networks, off-site data centers, Internet access and other services. Operational Responsibilities The City will provide maintenance and monitoring for this fiber network seven days a week, 24 hours a day for the duration of the 10 years. Network outages will occur from time to time. The City of Corpus Christi will notify the Texas A&M University Network Operations Center (TAMU-NOC) as soon as possible after a network TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT outage has occurred or prior to needing to take the network out of service for planned maintenance. Every effort will be made by the City of Corpus Christi to minimize the time required to get the network back in service after an outage and to coordinate planned network maintenance time with the TAMU-NOC Reporting Responsibilities The City of Corpus Christi will provide information required for TAMU to complete the quarterly, final and any other reports required by the NTIA during the three years of the grant. This information could include anchor tenants connected, data rates provisioned and costs charged. The request for the information will be provided four weeks before the official required reporting date and must be submitted to TAMU two weeks before the reporting date. Ownership of Assets Any equipment will remain the property of Texas A&M University for the period of 10 years or the useful life of the equipment, whichever is shorter. At the end of the 10 years TAMU will convey ownership of the equipment to The City of Corpus Christi. Timeline This project must be complete no later than September of 2013 with substantial completion by March of 2013 in order to meet the grant requirements. TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit C Flow-Down Provisions The following provisions of the Grant are incorporated by reference into this Agreement as if set forth in full text. Non-Discrimination Requirements: Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and DOC implementing regulations published at 15 C.F.R. Part 8 which prohibit discrimination on the grounds of race, color, or national origin under programs or activities receiving Federal financial assistance; Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibiting discrimination on the basis of sex under Federally assisted education programs or activities; Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794) and DOC implementing regulations published at 15 C.F.R. Part 8b prohibiting discrimination on the basis of handicap under any program or activity receiving or benefiting from Federal assistance; The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.) and DOC implementing regulations published at 15 C.F.R. Part 20 prohibiting discrimination on the basis of age in programs or activities receiving Federal financial assistance; The Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) prohibiting discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto, as well as public or private entities that provide public transportation; Parts II and III of EO 11246 (30 Fed. Reg. 12319, 1965), as amended by EO 11375 (32 Fed. Reg. 14303, 1967) and 12086 (43 Fed. Reg. 46501, 1978), require Federally assisted construction contracts to include the nondiscrimination provisions of §§ 202 and 203 of that EO and Department of Labor regulations implementing EO 11246 (41 C.F.R. § 60- 1.4(b), 1991); and EO 13166 (August 11, 2000), "Improving Access to Services for Persons With Limited English Proficiency," and DOC policy guidance issued on March 24, 2003 (68 Fed. Reg. 14180) to Federal financial assistance recipients on the Title VI prohibition against national origin discrimination affecting Limited English Proficient (LEP) persons. TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Environmental Requirements: The National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321-4327); Floodplain Management, EO 11988 and, Protection of Wetlands, EO 11990, May 24, 1977; Clean Air Act, Clean Water Act, and EO 11738; The Flood Disaster Protection Act of 1973 (42 U.S.C. § 4002 et seq.); The Endangered Species Act of 1973, as amended(16 U.S.C. § 1531 et seq.); The Coastal Zone Management Act, as amended (16 U.S.C. § 1451 et seq.); The Coastal Barriers Resources Act (16 U.S.C. § 3501 et seq.); The Wild and Scenic Rivers Act, as amended (16 U.S.C. §§ 1271 et seq.); The Safe Drinking Water Act of 1974, as amended (42 U.S.C. §§ 300E j); The Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§ 6901 et seq.); The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the Superfund Amendments and Reauthorization Act of 1986, and the Community Environmental Response Facilitation Act of 1992, as amended, (42 U.S.C. §§ 9601 et seq.); and Environmental Justice in Minority Populations and Low Income Populations, EO 12898, February 11, 1994. Whistleblower Protection Act Requirements: American Recovery and Reinvestment Act, Section 553 of Division A, Title XV, Public law 111-5. Drug Free Workplace Requirements: Drug-Free Workplace Act of 1988 (Public Law 100-690, title V, Sec. 5153, as amended by Public Law 105-85, Div. A, Title VIII, Sec. 809, as codified at 41 U.S.C. § 702) and DOC implementing regulations published at 15 C.F.R. Part 29, "Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)" (published in the Federal Register on November 26, 2003, 68 Fed. Reg. 66534). TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Other Requirements, as applicable: Fly America Act (49 U.S.C. § 40118). The implementing regulations of the Fly America Act are found at 41 C.F.R. §§ 301-10.131 through 301-10.143. Copeland Anti-Kickback Act, 18 U.S.C. § 874 and 40 U.S.C. § 276 Davis-Bacon Act, as amended, 40 U.S.C. § 276a et.seq. Contract Work Hours and Safety Standards Act, 40 U.S.C. § § 237-333 Rights to Inventions Made under a Contract or Agreement, 37 C.F.R. Part 401. EO 13202 , "Preservation of Open Competition and Government neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects." Department of Commerce Bureau of Industry and Security Export Administration Regulations, including 15 C.F.R. § § 730-774 and 22 C.F.R. § § 120-130 The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended, and the implementing regulations at 2 C.F.R. Part 175 Any and all other provisions of statutes or regulations that are required to be incorporated in this Sub-Recipient Grant Agreement. TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit D Department of Commerce Financial Assistance Standard Terms and Conditions, March 2008 DEPARTMENT OF COMMERCE FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS cO 4iA, oql" OF CO N- e V` a ‘. _., 7 G Q- 2 % ...C.) cs'O S , • TES pF March 2008 DEPARTMENT OF COMMERCE FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS PREFACE 1 A. FINANCIAL REQUIREMENTS 1 .01 Financial Reports 1 .02 Award Payments 1 .03 Federal and Non-Federal Sharing 2 .04 Budget Changes and Transfer of Funds Among Categories 3 .05 Indirect Costs 3 .06 Incurring Costs of Obligating Federal Funds Beyond the Expiration Date 5 .07 Tax Refunds 6 B. PROGRAMMATIC REQUIREMENTS 6 .01 Performance (Technical) Reports 6 .02 Unsatisfactory Performance 6 .03 Programmatic Changes 7 .04 Other Federal Awards with Similar Programmatic Activities 7 .05 Non-Compliance With Award Provisions 7 .06 Prohibition Against Assignment by the Recipient 7 .07 Disclaimer Provisions 7 C. NON-DISCRIMINATION REQUIRMENTS 8 .01 Statutory Provisions 8 .02 Other Provisions 8 .03 Title VII Exemption for Religious Organizations 9 D. AUDITS 9 .01 Organization-Wide, Program-Specific, and Project Audits 9 .02 Audit Resolution Process 10 E. DEBTS 11 .01 Payment of Debts Owed the Federal Government 11 .02 Late Payment Charges 12 .03 Barring Delinquent Federal Debtors From Obtaining Federal Loans or Loan Insurance Guarantees 12 .04 Effect of Judgment Lien On Eligibility For Federal Grants, Loans, or Programs 12 F. INDIVIDUAL BACKGROUND SCREENING 13 .01 Results of Individual Background Screening 13 .02 Action(s) Taken as a Result of Individual Background Screening 13 G. GOVERNMENTWIDE DEBARMENT AND SUSPENSION(NONPROCUREMENT) 14 H. DRUG-FREE WORKPLACE 14 I. LOBBYING RESTRICTIONS 14 .01 Statutory Provisions 14 .02 Disclosure of Lobbying Activities 14 J CODES OF CONDUCT AND SUBAWARD, CONTRACT, AND SUBCONTRACT PROVISIONS 15 .01 Code of Conduct for Recipients 15 .02 Applicability of Award Provisions to Subrecipients 15 .03 Competition and Codes of Conduct for Subawards 16 .04 Applicability of Provisions to Subawards, Contracts, and Subcontracts 16 .05 Minority Owned Business Enterprise 17 .06 Subaward and/or Contract to a Federal Agency 18 K. PROPERTY 18 .01 Standards 18 .02 Real Property 18 L. ENVIRONMENTAL REQUIREMENTS 19 .01 The National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321-4327) 19 .02 Floodplain Management, EO 11988 and, Protection of Wetlands, EO 11990, May 24, 1977 19 .03 Clean Air Act, Clean Water Act, and EO 11738 20 .04 The Flood Disaster Protection Act of 1973 (42 U.S.C. § 4002 et seq.) 20 .05 The Endangered Species Act of 1973, as amended, (16 U.S.C. § 1531 et seq.) 20 .06 The Coastal Zone Management Act, as amended, (16 U.S.C. § 1451 et seq.) 20 .07 The Coastal Barriers Resources Act, (16 U.S.C. § 3501 et seq.) 20 .08 The Wild and Scenic Rivers Act, as amended (16 U.S.C. §§ 1271 et seq.) 20 .09 The Safe Drinking Water Act of 1974, as amended (42 U.S.C. §§ 300f-j) 21 .10 The Resource Conservation and Recovery Act of 1976, as amended, (42 U.S.C. §§ 6901 et seq.) 21 .11 The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the Superfund Amendments and Reauthorization Act of 1986, and the Community Environmental Response Facilitation Act of 1992, as amended, (42 U.S.C. §§ 9601 et seq.) 21 .12 Environmental Justice in Minority Populations and Low Income Populations, EO 12898, February 11, 1994. 21 M. MISCELLANEOUS REQUIREMENTS 21 .01 Criminal and Prohibited Activities 21 .02 Foreign Travel 22 .03 American-Made Equipment and Products 23 .04 Intellectual Property Rights 23 a. Inventions 23 1. Ownership 23 (a) Recipient 23 (b) Department 23 (c) Inventor/Employee 23 (d) Joint inventions 23 2. Responsibilities - iEdison 24 b. Patent Notification Procedures 24 c. Data, Databases, and Software 24 d. Copyright 24 .05 Increasing Seat Belt Use in the United States 25 .06 Research Involving Human Subjects 25 .07 Federal Employee Expenses 26 .08 Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects. 26 .09 Minority Serving Institutions (MSIs) Initiative 26 .10 Research Misconduct 27 .11 Publications, Videos and Acknowledgement of Sponsorship 27 .12 Care and Use of Live Vertebrate Animals 27 .13 Homeland Security Presidential Directive— 12 28 .14 Compliance with Department of Commerce Bureau of Industry and Security Export Administration Regulations 28 .15 The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended, and the implementing regulations at 2 CFR Part 175. 29 .16 The Federal Funding Accountability and Transparency Act of 2006 (Pub. L.No. 109-282). 29 PREFACE The recipient and any subrecipients must, in addition to the assurances made as part of the application, comply and require each of its contractors and subcontractors employed in the completion of the project to comply with all applicable statutes, regulations, executive orders (EOs), Office of Management and Budget(OMB) circulars,terms and conditions, and approved applications. This award is subject to the laws and regulations of the United States. Any inconsistency or conflict in terms and conditions specified in the award will be resolved according to the following order of precedence: public laws, regulations, applicable notices published in the Federal Register, EOs, OMB circulars, Department of Commerce (DOC)Financial Assistance Standard Terms and Conditions, agency standard award conditions (if any), and special award conditions. Special award conditions may amend or take precedence over DOC standard terms and conditions, on a case-by-case basis, when allowed by the DOC standard term and condition. Some of the DOC terms and conditions herein contain, by reference or substance, a summary of the pertinent statutes, or regulations published in the Federal Register or Code of Federal Regulations (CFR), EOs, OMB circulars or the assurances (Forms SF-424B, 424D). To the extent that it is a summary, such provision is not in derogation of, or an amendment to, any such statute, regulation, E0, or OMB circular. A. FINANCIAL REQUIREMENTS .01 Financial Reports a. The recipient shall submit a "Financial Status Report" (SF-269) on a semi-annual basis for the periods ending March 31 and September 30, or any portion thereof, unless otherwise specified in a special award condition. Reports are due no later than 30 days following the end of each reporting period. A final SF-269 shall be submitted within 90 days after the expiration date of the award. b. The reports must be submitted to the Grants Officer in hard copy (no more than an original and two copies), or electronically when specified in the special award conditions. .02 Award Payments a. The advance method of payment shall be authorized unless otherwise specified in a special award condition. The Grants Officer determines the appropriate method of payment. Payments will be made through electronic funds transfers directly to the 1 recipient's bank account and in accordance with the requirements of the Debt Collection Improvement Act of 1996 and the Cash Management Improvement Act. The DOC Award Number must be included on all payment-related correspondence, information, and forms. b. When the "Request for Advance or Reimbursement" (SF-270) is used to request payment, the recipient shall submit the request no more frequently than monthly, and advances shall be approved for periods to cover only expenses anticipated over the next 30 days. When the SF-270 is used, the recipient must complete the SF-3881, "ACH Vendor Miscellaneous Payment Enrollment Form," and return it to the Grants Officer. c. Unless otherwise provided for in the award terms, payments under this award will be made using the Department of Treasury's Automated Standard Application for Payment(ASAP) system. Under the ASAP system,payments are made through preauthorized electronic funds transfers, in accordance with the requirements of the Debt Collection Improvement Act of 1996. In order to receive payments under ASAP, recipients are required to enroll with the Department of Treasury, Financial Management Service, Regional Financial Centers, which allows them to use the on- line and Voice Response System (VRS) method of withdrawing funds from their ASAP established accounts. The following information will be required to make withdrawals under ASAP: (1)ASAP account number—the award number found on the cover sheet of the award; (2)Agency Location Code (ALC); and Region Code. Recipients enrolled in the ASAP system do not need to submit a"Request for Advance or Reimbursement" (SF-270), for payments relating to their award. Awards paid under the ASAP system will contain a special award condition, clause, or provision describing enrollment requirements and any controls or withdrawal limits set in the ASAP system. d. Advances shall be limited to the minimum amounts necessary to meet immediate disbursement needs, but in no case should advances exceed the amount of cash required for a 30-day period. Advanced funds not disbursed in a timely manner and any applicable interest must be promptly returned to DOC. If a recipient demonstrates an unwillingness or inability to establish procedures which will minimize the time elapsing between the transfer of funds and disbursement or if the recipient otherwise fails to continue to qualify for the advance method of payment, the Grants Officer may change the method of payment to reimbursement only. .03 Federal and Non-Federal Sharing a. Awards which include Federal and non-Federal sharing incorporate a budget consisting of shared allowable costs. If actual allowable costs are less than the total approved budget,the Federal and non-Federal cost shares shall be calculated by applying the approved Federal and non-Federal cost share ratios to actual allowable costs. If actual allowable costs are greater than the total approved budget,the Federal 2 share shall not exceed the total Federal dollar amount authorized by the award. b. The non-Federal share, whether in cash or in-kind, is expected to be paid out at the same general rate as the Federal share. Exceptions to this requirement may be granted by the Grants Officer based on sufficient documentation demonstrating previously determined plans for, or later commitment of, cash or in-kind contributions. In any case, the recipient must meet its cost share commitment over the life of the award. .04 Budget Changes and Transfer of Funds Among Categories a. Requests for budget changes to the approved estimated budget in accordance with the provision noted below must be submitted to the Grants Officer who shall make the final determination on such requests and notify the recipient in writing. b. Transfers of funds by the recipient among direct cost categories are permitted for awards in which the Federal share of the project is $100,000 or less. For awards in which the Federal share of the project exceeds $100,000, transfers of funds among direct cost categories must be approved in writing by the Grants Officer when the cumulative amount of such direct cost transfers exceed 10 percent of the total Federal and non-Federal funds authorized by the Grants Officer. The 10 percent threshold applies to the total Federal and non-Federal funds authorized by the Grants Officer at the time of the transfer request. This is the accumulated amount of Federal funding obligated to date by the Grants Officer along with any non-Federal share. The same criteria apply to the cumulative amount of transfer of funds among programs, functions, and activities. Transfers will not be permitted if such transfers would cause any Federal appropriation, or part thereof, to be used for purposes other than those intended. This transfer authority does not authorize the recipient to create new budget categories within an approved budget unless the Grants Officer has provided prior approval. In addition,this does not prohibit the recipient from requesting Grants Officer approval for revisions to the budget. c. The recipient is not authorized at any time to transfer amounts budgeted for direct costs to the indirect costs line item or vice versa, without written prior approval of the Grants Officer. .05 Indirect Costs a. Indirect costs will not be allowable charges against the award unless specifically included as a cost item in the approved budget incorporated into the award. (The term "indirect cost" has been replaced with the term"facilities and administrative costs" under OMB Circular A-21, "Cost Principles for Educational Institutions.") b. Excess indirect costs may not be used to offset unallowable direct costs. 3 c. If the recipient has not previously established an indirect cost rate with a Federal agency, the negotiation and approval of a rate is subject to the procedures in the applicable cost principles and the following subparagraphs: 1. (a) State, Local, and Indian Tribal Governments; Educational Institutions; and Non-Profit Organizations (Non-Commercial Organizations) For the above listed organizations, cognizant federal agency is generally defined as the agency that provides the largest dollar amount of direct federal funding. For those organizations for which DOC is cognizant or has oversight, DOC or its designee will either negotiate a fixed rate with carry forward provisions for the recipient or, in some instances, will limit its review to evaluating the procedures described in the recipient's cost allocation methodology plan. Indirect cost rates and cost allocation methodology reviews are subject to future audits to determine actual indirect costs. (b) Commercial Organizations For commercial organizations, cognizant federal agency is defined as the agency that provides the largest dollar amount of negotiated contracts, including options. If the only federal funds received by a commercial organization are DOC award funds, then DOC becomes the cognizant federal agency for the purpose of indirect cost negotiations. For those organizations for which DOC is cognizant, DOC or its designee will negotiate a fixed rate with carryforward provisions for the recipient. Fixed rate means an indirect cost rate which has the same characteristics as a pre-determined rate, except that the difference between the estimated costs and the actual costs of the period covered by the rate is carried forward as an adjustment to the rate computation of the subsequent period. DOC or its designee will negotiate indirect cost rates using the cost principles found in 48 CFR Part 31, "Contract Cost Principles and Procedures." For guidance on how to put an indirect cost plan together go to: http://www.dol.gov/oasam/programs/boc/costdeterminationguide/main.htm 2. Within 90 days of the award start date,the recipient shall submit to the address listed below documentation (indirect cost proposal, cost allocation plan, etc.) necessary to perform the review. The recipient shall provide the Grants Officer with a copy of the transmittal letter. Office of Acquisition Management U.S. Department of Commerce 14th Street and Constitution Avenue,N.W., Room 6412 Washington, DC 20230 4 3. The recipient can use the fixed rate proposed in the indirect cost plan until such time as the DOC provides a response to the submitted plan. Actual indirect costs must be calculated annually and adjustments made through the carryforward provision used in calculating next year's rate. This calculation of actual indirect costs and the carryforward provision is subject to audit. Indirect cost rate proposals must be submitted annually. Organizations that have previously established indirect cost rates must submit a new indirect cost proposal to the cognizant agency within six months after the close of each of the recipients' fiscal years. d. When DOC is not the oversight or cognizant Federal agency, the recipient shall provide the Grants Officer with a copy of a negotiated rate agreement or a copy of the transmittal letter submitted to the cognizant or oversight Federal agency requesting a negotiated rate agreement. e. If the recipient fails to submit the required documentation to DOC within 90 days of the award start date,the Grants Officer may amend the award to preclude the recovery of any indirect costs under the award. If the DOC, oversight, or cognizant Federal agency determines there is a finding of good and sufficient cause to excuse the recipient's delay in submitting the documentation, an extension of the 90-day due date may be approved by the Grants Officer. f. Regardless of any approved indirect cost rate applicable to the award, the maximum dollar amount of allocable indirect costs for which DOC will reimburse the recipient shall be the lesser of: 1. The line item amount for the Federal share of indirect costs contained in the approved budget of the award; or 2. The Federal share of the total allocable indirect costs of the award based on the indirect cost rate approved by a cognizant or oversight Federal agency and current at the time the cost was incurred, provided the rate is approved on or before the award end date. .06 Incurring Costs of Obligating Federal Funds Beyond the Expiration Date a. The recipient shall not incur costs or obligate funds for any purpose pertaining to the operation of the project,program, or activities beyond the expiration date stipulated in the award. The only costs which are authorized for a period of up to 90 days following the award expiration date are those strictly associated with closeout activities. Closeout activities are normally limited to the preparation of final progress, financial, and required project audit reports unless otherwise approved in writing by the Grants Officer. b. Unless otherwise authorized in 15 CFR § 14.25(e)(2) or a special award condition, 5 any extension of the award period can only be authorized by the Grants Officer in writing. Verbal or written assurances of funding from other than the Grants Officer shall not constitute authority to obligate funds for programmatic activities beyond the expiration date. c. The DOC has no obligation to provide any additional prospective funding. Any amendment of the award to increase funding and to extend the period of performance is at the sole discretion of DOC. .07 Tax Refunds Refunds of FICA/FUTA taxes received by the recipient during or after the award period must be refunded or credited to DOC where the benefits were financed with Federal funds under the award. The recipient agrees to contact the Grants Officer immediately upon receipt of these refunds. The recipient further agrees to refund portions of FICA/FUTA taxes determined to belong to the Federal Government, including refunds received after the award end date. B. PROGRAMMATIC REQUIREMENTS .01 Performance (Technical) Reports a. The recipient shall submit performance (technical) reports in triplicate (one original and two copies)or electronically to the Federal Program Officer as specified in the special award conditions in the same frequency as the Financial Status Report(SF- 269) unless otherwise authorized by the Grants Officer. b. Unless otherwise specified in the award provisions,performance (technical) reports shall contain brief information as prescribed in the applicable uniform administrative requirements incorporated into the award. .02 Unsatisfactory Performance Failure to perform the work in accordance with the terms of the award and maintain at least a satisfactory performance rating or equivalent evaluation may result in designation of the recipient as high risk and assignment of special award conditions or other further action as specified in the standard term and condition entitled"Non-Compliance With Award Provisions." 6 .03 Programmatic Changes The recipient shall report programmatic changes to the Grants Officer, and shall request prior approvals in accordance with 15 CFR § 14.25 or 15 CFR § 24.30. .04 Other Federal Awards with Similar Programmatic Activities The recipient shall immediately provide written notification to the Federal Program Officer and the Grants Officer in the event that, subsequent to receipt of the DOC award, other financial assistance is received to support or fund any portion of the scope of work incorporated into the DOC award. DOC will not pay for costs that are funded by other sources. .05 Non-Compliance With Award Provisions Failure to comply with any or all of the provisions of the award may have a negative impact on future funding by DOC and may be considered grounds for any or all of the following actions: establishment of an account receivable, withholding payments under any DOC awards to the recipient, changing the method of payment from advance to reimbursement only, or the imposition of other special award conditions, suspension of any DOC active awards, and termination of any DOC active awards. .06 Prohibition Against Assignment by the Recipient The recipient shall not transfer,pledge, mortgage, or otherwise assign the award, or any interest therein, or any claim arising thereunder, to any party or parties, banks, trust companies, or other financing or financial institutions without the express written approval of the Grants Officer. .07 Disclaimer Provisions a. The United States expressly disclaims any and all responsibility or liability to the recipient or third persons for the actions of the recipient or third persons resulting in death, bodily injury,property damages, or any other losses resulting in any way from the performance of this award or any other losses resulting in any way from the performance of this award or any subaward or subcontract under this award. b. The acceptance of this award by the recipient does not in any way constitute an agency relationship between the United States and the recipient. 7 C. NON-DISCRIMINATION REQUIRMENTS No person in the United States shall, on the ground of race, color, national origin, handicap, age, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. The recipient agrees to comply with the non-discrimination requirements below: .01 Statutory Provisions a. Title VI of the Civil Rights Act of 1964 (42 USC §§ 2000d et seq.) and DOC implementing regulations published at 15 CFR Part 8 which prohibit discrimination on the grounds of race, color, or national origin under programs or activities receiving Federal financial assistance; b. Title IX of the Education Amendments of 1972 (20 USC §§ 1681 et seq.)prohibiting discrimination on the basis of sex under Federally assisted education programs or activities; c. Section 504 of the Rehabilitation Act of 1973, as amended (29 USC § 794) and DOC implementing regulations published at 15 CFR Part 8b prohibiting discrimination on the basis of handicap under any program or activity receiving or benefiting from Federal assistance; d. The Age Discrimination Act of 1975, as amended (42 USC §§ 6101 et seq.) and DOC implementing regulations published at 15 CFR Part 20 prohibiting discrimination on the basis of age in programs or activities receiving Federal financial assistance; e. The Americans with Disabilities Act of 1990 (42 USC §§ 12101 et seq.)prohibiting discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto, as well as public or private entities that provide public transportation; f. Any other applicable non-discrimination law(s). .02 Other Provisions a. Parts II and III of EO 11246 (30 FR 12319, 1965), as amended by EO 11375 (32 FR 14303, 1967) and 12086 (43 FR 46501, 1978), require Federally assisted construction contracts to include the nondiscrimination provisions of§§ 202 and 203 of that EO and Department of Labor regulations implementing EO 11246 (41 CFR § 60-1.4(b), 1991). 8 b. EO 13166 (August 11, 2000), "Improving Access to Services for Persons With Limited English Proficiency," and DOC policy guidance issued on March 24, 2003 (68 FR 14180)to Federal financial assistance recipients on the Title VI prohibition against national origin discrimination affecting Limited English Proficient(LEP) persons. .03 Title VII Exemption for Religious Organizations Generally, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides that it shall be an unlawful employment practice for an employer to discharge any individual or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin. However, Title VII, 42 U.S.C. § 2000e-1(a), expressly exempts from the prohibition against discrimination on the basis of religion, a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. D. AUDITS Under the Inspector General Act of 1978, as amended, 5 USC App. 3, § 1 et seq., an audit of the award may be conducted at any time. The Inspector General of the DOC, or any of his or her duly authorized representatives, shall have access to any pertinent books, documents, papers and records of the recipient, whether written,printed, recorded,produced or reproduced by any electronic, mechanical, magnetic or other process or medium, in order to make audits, inspections, excerpts, transcripts or other examinations as authorized by law. When the OIG requires a program audit on a DOC award,the OIG will usually make the arrangements to audit the award, whether the audit is performed by OIG personnel, an independent accountant under contract with DOC, or any other Federal, state or local audit entity. .01 Organization-Wide, Program-Specific, and Project Audits a. Organization-wide or program-specific audits shall be performed in accordance with the Single Audit Act Amendments of 1996, as implemented by OMB Circular A-133, "Audits of States, Local Governments, and Non-Profit Organizations." Recipients that are subject to the provisions of OMB Circular A-133 and that expend $500,000 or more in a year in Federal awards shall have an audit conducted for that year in accordance with the requirements contained in OMB Circular A-133. A copy of the audit shall be submitted to the Bureau of the Census, which has been designated by 9 OMB as a central clearinghouse. The address is: Federal Audit Clearinghouse Bureau of the Census 1201 E. 10th Street Jeffersonville, IN 47132 b. Unless otherwise specified in the terms and conditions of the award, in accordance with 15 CFR § 14.26(c) and (d), for-profit hospitals, commercial entities, and other organizations not required to follow the audit provisions of OMB Circular A-133 shall have an audit performed when the federal share amount awarded is $500,000 or more over the duration of the project period. An audit is required at least once every two years using the following schedule for audit report submission. 1. For awards less than 24 months, an audit is required within 90 days from the project expiration date, including the close-out period for the award. 2. For 2-, or 3 -year awards, an audit is required within 90 days after the end of the first year and within 90 days from the project expiration date including the close- out period for the award. 3. For 4-, or 5-year awards, an audit is required within 90 days after the end of the first year and third year, and within 90 days from the project expiration date including the close-out period for the award. c. Some DOC programs have specific audit guidelines that will be incorporated into the award. When DOC does not have a program-specific audit guide available for the program, the auditor will follow the requirements for a program-specific audit as described in OMB Circular A-133, § .235. The Recipient may include a line item in the budget for the cost of the audit. A copy of the program-specific audit shall be submitted to the Grants Officer and to the OIG at the following address: Office of Inspector General U.S. Department of Commerce Atlanta Regional Office of Audits 401 West Peachtree Street,N.W., Suite 2742 Atlanta, GA 30308 .02 Audit Resolution Process a. An audit of the award may result in the disallowance of costs incurred by the recipient and the establishment of a debt(account receivable) due DOC. For this reason,the recipient should take seriously its responsibility to respond to all audit findings and recommendations with adequate explanations and supporting evidence 10 whenever audit results are disputed. b. In accordance with the Federal Register notice dated January 27, 1989 (54 FR 4053), a recipient whose award is audited has the following opportunities to dispute the proposed disallowance of costs and the establishment of a debt: 1. Unless the Inspector General determines otherwise, the recipient has 30 days from the date of the transmittal of the draft audit report to submit written comments and documentary evidence. 2. The recipient has 30 days from the date of the transmittal of the final audit report to submit written comments and documentary evidence. There will be no extension of this deadline. 3. The DOC shall review the documentary evidence submitted by the recipient and shall notify the recipient of the results in an Audit Resolution Determination Letter. The recipient has 30 days from the date of receipt of the Audit Resolution Determination Letter to submit a written appeal. There will be no extension of this deadline. The appeal is the last opportunity for the recipient to submit written comments and documentary evidence that dispute the validity of the audit resolution determination. 4. An appeal of the Audit Resolution Determination does not prevent the establishment of the audit-related debt nor does it prevent the accrual of interest on the debt. If the Audit Resolution Determination is overruled or modified on appeal, appropriate corrective action will be taken retroactively. An appeal will stay the offset of funds owed by the auditee against funds due to the auditee. 5. The DOC shall review the recipient's appeal and notify the recipient of the results in an Appeal Determination Letter. After the opportunity to appeal has expired or after the appeal determination has been rendered, DOC will not accept any further documentary evidence from the recipient. No other administrative appeals are available in DOC. E. DEBTS .01 Payment of Debts Owed the Federal Government Any debts determined to be owed the Federal Government shall be paid promptly by the recipient. In accordance with 15 CFR § 21.4, a debt will be considered delinquent if it is not paid within 15 days of the due date, or if there is no due date, within 30 days of the billing date. Failure to pay a debt by the due date, or if there is no due date,within 30 days of the billing date, shall result in the imposition of late payment charges as noted 11 below. In addition, failure to pay the debt or establish a repayment agreement by the due date, or if there is no due date, within 30 days of the billing date, will also result in the referral of the debt for collection action, including referral to the Treasury Offset Program, 31 C.F.R. § 285.5, and may result in DOC taking further action as specified in the standard term and condition entitled "Non-Compliance With Award Provisions". Funds for payment of a debt must not come from other Federally sponsored programs. Verification that other Federal funds have not been used will be made, e.g., during on-site visits and audits. .02 Late Payment Charges a. An interest charge shall be assessed on the delinquent debt as established by the Debt Collection Act(31 U.S.C. 3701 et seq.), as amended. The minimum annual interest rate to be assessed is the Department of the Treasury's Current Value of Funds Rate. This rate is published in the Federal Register by the Department of the Treasury. The assessed rate shall remain fixed for the duration of the indebtedness. b. A penalty charge shall be assessed on any portion of a debt that is delinquent for more than 90 days, although the charge will accrue and be assessed from the date the debt became delinquent. c. An administrative charge shall be assessed to cover processing and handling the amount due. .03 Barring Delinquent Federal Debtors From Obtaining Federal Loans or Loan Insurance Guarantees Pursuant to 31 U.S.C. § 3720B, unless waived,the DOC is not permitted to extend financial assistance in the form of a loan, loan guarantee, or loan insurance to any person delinquent on a nontax debt owed to a Federal agency. This prohibition does not apply to disaster loans. .04 Effect of Judgment Lien On Eligibility For Federal Grants, Loans, or Programs Pursuant to 28 U.S.C. § 3201(e), unless waived by the DOC, a debtor who has a judgment lien against the debtor's property for a debt to the United States shall not be eligible to receive any grant, or loan which is made, insured, guaranteed, or financed directly or indirectly by the United States or to receive funds directly from the Federal Government in any program, except funds to which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise satisfied. 12 F. INDIVIDUAL BACKGROUND SCREENING An individual background screening will be performed by the OIG on key individuals of organizational units associated with the application at the beginning of the award and at three year intervals thereafter for the life of the award unless (1)the proposed award amount is $100,000 or less; (2) applicants are accredited colleges and universities; (3) applicants are units of a State or local government; (4) applicants are economic development districts designated by EDA, including those entities whose designations are pending, and councils of governments; or(5)the key individual(s) is/are elected officials of State and local governments who are serving in capacities other than their elected capacities when applying for assistance. In addition, if there is a change in the status of the organization and/or key individuals, or the program officer, OIG, or Grants Officer believes there is good reason to conduct a review sooner, a background screening may be required more frequently. Individual background screenings are intended to reveal if any key individuals associated with the applicant have been convicted of or are presently facing criminal charges (e.g., fraud,theft, perjury), or other matters which significantly reflect on the applicant's business integrity, responsibility, or financial integrity. Key individuals of non-exempt organizations associated with this award shall complete Form CD-346, "Applicant for Funding Assistance." An original signature is required. The form is to be submitted to the Grants Specialist named in the award document within 30 days of receipt of this award. .01 Results of Individual Background Screening DOC reserves the right to take any of the actions described in section F.02 if any of the following occurs as a result of the individual background screening: a. A key individual fails to submit the required Form CD-346, "Applicant for Funding Assistance"within 30 days of receipt of this award; b. A key individual makes a false statement or omits a material fact on the Form CD-346; c. The individual background screening reveals significant adverse findings that reflect on the business integrity or responsibility of the recipient and/or key individual. .02 Action(s) Taken as a Result of Individual Background Screening If any situation noted in F.01 occurs, DOC, at its discretion, may take one or more of the following actions: a. Consider suspension/termination of an award immediately for cause; b. Require the removal of any key individual from association with management and/or implementation of the award and require Grants Officer approval of personnel 13 replacements; c. Require the recipient to make other changes as appropriate; and/or d. Designate the recipient as high risk and amend the award to assign special award conditions, as appropriate, including making changes with respect to the method of payment and/or financial reporting requirements. G. GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) The recipient shall comply with the provisions of Subpart C of 2 CFR Part 1326, "Governmentwide Debarment and Suspension (Nonprocurement)" (published in the Federal Register on December 21, 2006, 71 FR 76573), which generally prohibit entities that have been debarred, suspended, or voluntarily excluded from participating in Federal nonprocurement transactions either through primary or lower tier covered transactions. H. DRUG-FREE WORKPLACE The recipient shall comply with the provisions of the Drug-Free Workplace Act of 1988 (Public Law 100-690,title V, Sec. 5153, as amended by Public Law 105-85, Div. A, Title VIII, Sec. 809, as codified at 41 U.S.C. § 702) and DOC implementing regulations published at 15 CFR Part 29, "Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)" (published in the Federal Register on November 26, 2003, 68 FR 66534), which require that the recipient take steps to provide a drug-free workplace. I. LOBBYING RESTRICTIONS .01 Statutory Provisions The recipient shall comply with the provisions of 31 U.S.C. § 1352 and DOC implementing regulations published at 15 CFR Part 28, "New Restrictions on Lobbying." These provisions generally prohibit the use of Federal funds for lobbying the Executive or Legislative Branches of the Federal government in connection with the award, and require the disclosure of the use of non-Federal funds for lobbying. .02 Disclosure of Lobbying Activities The recipient receiving in excess of$100,000 in Federal funding shall submit a 14 completed Form SF-LLL, "Disclosure of Lobbying Activities,"regarding the use of non- Federal funds for lobbying. The Form SF-LLL shall be submitted within 30 days following the end of the calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed. The recipient must submit the Forms SF-LLL, including those received from subrecipients, contractors, and subcontractors, to the Grants Officer. J. CODES OF CONDUCT AND SUBAWARD, CONTRACT,AND SUBCONTRACT PROVISIONS .01 Code of Conduct for Recipients Pursuant to the certification in SF-424B, paragraph 3, the recipient must maintain written standards of conduct to establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain in the administration of this award. .02 Applicability of Award Provisions to Subrecipients a. The recipient shall require all subrecipients, including lower tier subrecipients, under the award to comply with the provisions of the award, including applicable cost principles, administrative, and audit requirements. b. A recipient is responsible for subrecipient monitoring, including the following: 1. Award Identification - At the time of the award, identifying to the subrecipient the Federal award information (e.g., CFDA title and number, award name, name of Federal agency)and applicable compliance requirements. 2. During-the-Award Monitoring -Monitoring the subrecipient's use of Federal awards through reporting, site visits, regular contact, or other means to provide reasonable assurance that the subrecipient administers Federal awards in compliance with laws, regulations, and the provisions of contracts or grant agreements and that performance goals are achieved. 3. Subrecipient Audits - Ensuring that subrecipients expending $500,000 or more in Federal awards during the subrecipient's fiscal year have met the audit requirements of OMB Circular A-133, and that the required audits are completed within 9 months of the end of the subrecipient's audit period. In addition,the recipient is required to issue a management decision on audit findings within 6 months after receipt of the subrecipient's audit report, and ensuring that the subrecipient takes timely and appropriate corrective action on all audit findings. 15 In cases of continued inability or unwillingness of a subrecipient to have the required audits,the pass-through entity shall take appropriate action using sanctions. .03 Competition and Codes of Conduct for Subawards a. All subawards will be made in a manner to provide, to the maximum extent practicable, open and free competition. The recipient must be alert to organizational conflicts of interest as well as other practices among subrecipients that may restrict or eliminate competition. In order to ensure objective subrecipient performance and eliminate unfair competitive advantage, subrecipients that develop or draft work requirements, statements of work, or requests for proposals shall be excluded from competing for such subawards. b. The recipient shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of subawards. No employee, officer, or agent shall participate in the selection, award, or administration of a subaward supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization in which he/she serves as an officer or which employs or is about to employ any of the parties mentioned in this section, has a financial interest or other interest in the organization selected or to be selected for a subaward. The officers, employees, and agents of the recipient shall neither solicit nor accept anything of monetary value from subrecipients. However,the recipient may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the recipient. c. A financial interest may include employment, stock ownership, a creditor or debtor relationship, or prospective employment with the organization selected or to be selected for a subaward. An appearance of impairment of objectivity could result from an organizational conflict where, because of other activities or relationships with other persons or entities, a person is unable or potentially unable to render impartial assistance or advice. It could also result from non-financial gain to the individual, such as benefit to reputation or prestige in a professional field. .04 Applicability of Provisions to Subawards,Contracts, and Subcontracts a. The recipient shall include the following notice in each request for applications or bids: Applicants/bidders for a lower tier covered transaction (except procurement contracts for goods and services under$25,000 not requiring the consent of a 16 DOC official) are subject to 2 CFR Part 1326, Subpart C "Governmentwide Debarment and Suspension (Nonprocurement)." In addition, applicants/bidders for a lower tier covered transaction for a subaward, contract, or subcontract greater than $100,000 of Federal funds at any tier are subject to 15 CFR Part 28, "New Restrictions on Lobbying." Applicants/bidders should familiarize themselves with these provisions, including the certification requirement. Therefore, applications for a lower tier covered transaction must include a Form CD-512, "Certification Regarding Lobbying--Lower Tier Covered Transactions," completed without modification. b. The recipient shall include a term or condition in all lower tier covered transactions (subawards, contracts, and subcontracts), that the award is subject to Subpart C of 2 CFR Part 1326, "Governmentwide Debarment and Suspension (Nonprocurement)." c. The recipient shall include a statement in all lower tier covered transactions (subawards, contracts, and subcontracts) exceeding $100,000 in Federal funds, that the subaward, contract, or subcontract is subject to 31 U.S.0 § 1352, as implemented at 15 CFR Part 28, "New Restrictions on Lobbying." The recipient shall further require the subrecipient, contractor, or subcontractor to submit a completed "Disclosure of Lobbying Activities" (Form SF-LLL) regarding the use of non-Federal funds for lobbying. The Form SF-LLL shall be submitted within 15 days following the end of the calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed. The Form SF-LLL shall be submitted from tier to tier until received by the recipient. The recipient must submit all disclosure forms received, including those that report lobbying activity on its own behalf, to the Grants Officer within 30 days following the end of the calendar quarter. .05 Minority Owned Business Enterprise DOC encourages recipients to utilize minority and women-owned firms and enterprises in contracts under financial assistance awards. The Minority Business Development Agency will assist recipients in matching qualified minority owned enterprises with contract opportunities. For further information contact: U.S. Department of Commerce Minority Business Development Agency Herbert C. Hoover Building 14th Street and Constitution Avenue,N.W. Washington, D.C. 20230 17 .06 Subaward and/or Contract to a Federal Agency a. The recipient, subrecipient, contractor, and/or subcontractor shall not sub-grant or sub-contract any part of the approved project to any agency or employee of DOC and/or other Federal department, agency or instrumentality, without the prior written approval of the Grants Officer. b. Requests for approval of such action must be submitted to the Federal Program Officer who shall review and make recommendation to the Grants Officer. The Grants Officer shall make the final determination and will notify the recipient in writing of the final determination. K. PROPERTY .01 Standards The recipient shall comply with the property management standards as stipulated in the applicable uniform administrative requirements. .02 Real Property The recipient shall execute a security interest or other statement of the Federal Interest in real property acquired or improved with Federal funds, acceptable in form and substance to the DOC,which statement must be perfected and placed of record in accordance with local law, with continuances re-filed as appropriate. The recipient must provide the DOC with a written statement from a licensed attorney in the jurisdiction where the property is located certifying that the Federal Interest has been protected, as required under the award and in accordance with local law. The attorney's statement, along with a copy of the instrument reflecting the recordation of the Federal Interest, shall be returned to the Grants Officer. The recipient may not dispose of, modify the use of, or change the terms of the real property title, or other interest in the project site and facilities without permission and instructions from the Grants Officer. No funds under this award shall be released until the recipient has complied with this provision, unless other arrangements satisfactory to the DOC are made. 18 L. ENVIRONMENTAL REQUIREMENTS Environmental impacts must be considered by Federal decision makers in their decisions whether or not to (1) approve a proposal for Federal assistance; (2)approve the proposal with mitigation; or(3) approve a different proposal/grant having less adverse environmental impacts. Federal environmental laws require that the funding agency initiate a planning process with an early consideration of potential environmental impacts that projects funded with Federal assistance may have on the environment. The recipient and subrecipients must comply with all environmental standards, to include those prescribed under the following statutes and Executive Orders, and shall identify to the awarding agency any impact the award may have on the environment. In some cases, award funds can be withheld by the Grants Officer under a special award condition requiring the recipient to submit additional environmental compliance information sufficient to enable the DOC to make an assessment on any impacts that a project may have on the environment. .01 The National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321-4327) The National Environmental Policy Act(NEPA) and the Council on Environmental Quality(CEQ) implementing regulations(40 CFR parts 1500 through 1508)require that an environmental analysis be completed for all major Federal actions significantly affecting the environment. NEPA applies to the actions of Federal agencies and may include a Federal agency's decision to fund non-Federal projects under grants and cooperative agreements. Recipients of Federal assistance are required to identify to the awarding agency any impact an award will have on the quality of the human environment, and assist the agency to comply with the National Environmental Policy Act. Recipients may also be requested to assist NOAA in drafting of an environmental assessment, if the Department determines an assessment is required, when the award activities remain subject to Federal authority and control. If additional information is required during the period of the award, funds can be withheld by the Grants Officer under a special award condition requiring the recipient to submit additional environmental compliance information sufficient to enable the Department to make an assessment on any impacts that a project may have on the environment. .02 Floodplain Management, EO 11988 and,Protection of Wetlands, EO 11990, May 24, 1977 Recipients must identify proposed actions in Federally defined floodplains and wetlands to enable the agency to make a determination whether there is an alternative to minimize any potential harm. 19 .03 Clean Air Act, Clean Water Act,and EO 11738 Recipients must comply with the provisions of the Clean Air Act(42 U.S.C. §§ 7401 et seq.), Clean Water Act(33 U.S.C. §§1251 et seq.), and EO 11738, and shall not use a facility on EPA's List of Violating Facilities in performing any award that is nonexempt under 40 CFR §15.5, and shall notify the Program Officer in writing if it intends to use a facility that is on the EPA List of Violating Facilities or knows that the facility has been recommended to be placed on the List. .04 The Flood Disaster Protection Act of 1973 (42 U.S.C. § 4002 et seq.) Flood insurance,when available, is required for Federally assisted construction or acquisition in flood-prone areas. .05 The Endangered Species Act of 1973, as amended, (16 U.S.C. § 1531 et seq.) Recipients must identify any impact or activities which may involve a threatened or endangered species. Federal agencies have the responsibility to ensure that no adverse effects to a protected species or habitat occur from actions under Federal assistance awards and conduct the required reviews under the Endangered Species Act, as applicable. .06 The Coastal Zone Management Act, as amended, (16 U.S.C. § 1451 et seq.) Funded projects must be consistent with a coastal state's approved management program for the coastal zone. .07 The Coastal Barriers Resources Act, (16 U.S.C. §3501 et seq.) Restrictions are placed on Federal Funding for actions within the Coastal Barrier System. .08 The Wild and Scenic Rivers Act, as amended (16 U.S.C. §§ 1271 et seq.) This Act applies to awards that may affect existing or proposed components of the National Wild and Scenic Rivers system. 20 .09 The Safe Drinking Water Act of 1974, as amended (42 U.S.C. §§300f-j) This Act precludes Federal assistance for any project that the EPA determines may contaminate a sole source aquifer so as to threaten public health. .10 The Resource Conservation and Recovery Act of 1976, as amended,(42 U.S.C. §§ 6901 et seq.) This Act regulates the generation,transportation, treatment, and disposal of hazardous wastes, and also provides that recipients of Federal funds give preference in their procurement programs to the purchase of recycled products pursuant to EPA guidelines. .11 The Comprehensive Environmental Response, Compensation,and Liability Act of 1980, as amended, and the Superfund Amendments and Reauthorization Act of 1986,and the Community Environmental Response Facilitation Act of 1992, as amended, (42 U.S.C. §§ 9601 et seq.) These requirements address responsibilities of hazardous substance releases,threatened releases and environmental cleanup. There is also a requirement to impose reporting and community involvement requirements to ensure disclosure of the release or disposal of regulated substances and cleanup of hazards. .12 Environmental Justice in Minority Populations and Low Income Populations,EO 12898,February 11, 1994. This order identified and addresses adverse human health or environmental effects of programs,policies and activities on low income and minority populations. M. MISCELLANEOUS REQUIREMENTS .01 Criminal and Prohibited Activities a. The Program Fraud Civil Remedies Act (31 U.S.C. §§ 3801-3812), provides for the imposition of civil penalties against persons who make false, fictitious, or fraudulent claims to the Federal government for money (including money representing grants, loans or other benefits). b. False statements (18 U.S.C. §§ 287 and 1001), provides that whoever makes or 21 presents any false, fictitious, or fraudulent statements, representations, or claims against the United States shall be subject to imprisonment of not more than five years and shall be subject to a fine in the amount provided by 18 U.S.C. § 287. c. False Claims Act (31 U.S.C. 3729 et seq.),provides that suits under this act can be brought by the government, or a person on behalf of the government, for false claims under Federal assistance programs. d. Copeland "Anti-Kickback"Act(18 U.S.C. § 874 and 40 U.S.C. § 276c), prohibits a person or organization engaged in a Federally supported project from enticing an employee working on the project from giving up a part of his compensation under an employment contract. .02 Foreign Travel a. The recipient shall comply with the provisions of the Fly America Act(49 USC § 40118). The implementing regulations of the Fly America Act are found at 41 CFR §§ 301-10.131 through 301-10.143. b. The Fly America Act requires that Federal travelers and others performing U.S. Government-financed foreign air travel must use U.S. flag air carriers,to the extent that service by such carriers is available. Foreign air carriers may be used only in specific instances, such as when a U.S. flag air carrier is unavailable, or use of U.S. flag air carrier service will not accomplish the agency's mission. c. Use of foreign air carriers may also be used only if bilateral agreements permit such travel pursuant to 49 USC § 40118(b). DOC is not aware of any bilateral agreements which meet these requirements. Therefore, it is the responsibility of the recipient to provide the Grants Officer with a copy of the applicable bilateral agreement if use of a foreign carrier under a bilateral agreement is anticipated. d. If a foreign air carrier is anticipated to be used for any part of foreign travel, the recipient must receive prior approval from the Grants Officer. When requesting such approval,the recipient must provide a justification in accordance with guidance provided by 41 CFR § 301-10.142, which requires the recipient to provide the Grants Officer with the following: name; dates of travel; origin and destination of travel; detailed itinerary of travel, name of the air carrier and flight number for each leg of the trip; and a statement explaining why the recipient meets one of the exceptions to the regulations. If the use of a foreign air carrier is pursuant to a bilateral agreement, the recipient must provide the Grants Officer with a copy of the agreement. The Grants Officer shall make the final determination and notify the recipient in writing. Failure to adhere to the provisions of the Fly America Act will result in the recipient not being reimbursed for any transportation costs for which the recipient improperly used a foreign air carrier. 22 .03 American-Made Equipment and Products Recipients are hereby notified that they are encouraged, to the greatest extent practicable, to purchase American-made equipment and products with funding provided under this award. .04 Intellectual Property Rights a. Inventions. The rights to any invention made by a recipient under a DOC financial assistance award are determined by the Bayh-Dole Act, Pub. L. 96-517, as amended, and codified in 35 U.S.C. § 200 et seq., except as otherwise required by law. The specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from financial assistance awards are described in more detail in 37 CFR Part 401 and in particular, in the standard patent rights clause in 37 CFR § 401.14, which is hereby incorporated by reference into this award. 1. Ownership. (a) Recipient. The recipient has the right to own any invention it makes (conceived or first actually reduced to practice) or made by its employees. The recipient may not assign its rights to a third party without the permission of DOC unless it is to a patent management organization (i.e., a university's Research Foundation.) The recipient's ownership rights are subject to the Government's nonexclusive paid-up license and other rights. (b) Department. If the recipient elects not to own or does not elect rights or file a patent application within the time limits set forth in the standard patent rights clause, DOC may request an assignment of all rights, which is normally subject to a limited royalty free nonexclusive revocable license for the recipient. DOC owns any invention made solely by its employees but may license the recipient in accordance with the procedures in 37 CFR Part 404. (c) Inventor/Employee. If neither the recipient nor the Department is interested in owning an invention by a recipient employee,the recipient,with the written concurrence of DOC, may allow the inventor/employee to own the invention subject to certain restrictions as described in 37 CFR § 401.9. (d) Joint inventions. Inventions made jointly by a recipient and a DOC employee will be owned jointly by the recipient and DOC. However, DOC may transfer its rights to the recipient as authorized by 35 U.S.C. § 202(e)and 37 CFR § 401.10 if the recipient is willing to patent and license the invention usually in exchange for a share of"net"royalties based on the number of inventors (e.g., 50-50 if there is one recipient and DOC employee). The agreement will be prepared by DOC and may include other provisions, such as a royalty free license to the Government and certain other entities. 35 U.S.C. § 202(e) also 23 authorizes the recipient to transfer its rights to the Government which can agree to share royalties similarly as described above. 2. Responsibilities - iEdison. The recipient has responsibilities and duties set forth in the standard patent rights clause, which are not described below. The recipient is expected to comply with all the requirements of the standard patent rights clause and 37 CFR Part 401. Recipients of DOC financial assistance awards are required to submit their disclosures and elections electronically using the Interagency Edison extramural invention reporting system (iEdison) at www.iEdison.gov. Recipients may obtain a waiver of this electronic submission requirement by providing to DOC compelling reasons for allowing the submission of paper copies of reports related to inventions. b. Patent Notification Procedures. Pursuant to E.O. 12889, DOC is required to notify the owner of any valid patent covering technology whenever the DOC or its financial assistance recipients, without making a patent search, knows (or has demonstrable reasonable grounds to know) that technology covered by a valid United States patent has been or will be used without a license from the owner. To ensure proper notification, if the recipient uses or has used patented technology under this award without a license or permission from the owner, the recipient must notify the Grants Officer. However,this notice does not necessarily mean that the Government authorizes and consents to any copyright or patent infringement occurring under the financial assistance. c. Data, Databases, and Software. The rights to any work produced or purchased under a DOC Federal financial assistance award are determined by 15 CFR § 24.34 and 15 CFR § 14.36. Such works may include data, databases or software. The recipient owns any work produced or purchased under a DOC Federal financial assistance award subject to DOC's right to obtain, reproduce,publish or otherwise use the work or authorize others to receive, reproduce,publish or otherwise use the data for Government purposes. d. Copyright. The recipient may copyright any work produced under a DOC Federal financial assistance award subject to DOC's royalty-free nonexclusive and irrevocable right to reproduce,publish or otherwise use the work or authorize others to do so for Government purposes. Works jointly authored by DOC and recipient employees may be copyrighted but only the part authored by the recipient is protected because, under 17 U.S.C. § 105,works produced by Government employees are not copyrightable in 24 the United States. On occasion, DOC may ask the recipient to transfer to DOC its copyright in a particular work when DOC is undertaking the primary dissemination of the work. Ownership of copyright by the Government through assignment is permitted by 17 U.S.C. § 105. .05 Increasing Seat Belt Use in the United States Pursuant to EO 13043, recipients should encourage employees and contractors to enforce on-the-job seat belt policies and programs when operating company-owned, rented or personally-owned vehicles. .06 Research Involving Human Subjects a. All proposed research involving human subjects must be conducted in accordance with 15 CFR Part 27, "Protection of Human Subjects." No research involving human subjects is permitted under this award unless expressly authorized by Special Award Condition, or otherwise in writing by the Grants Officer. b. Federal policy defines a human subject as a living individual about whom an investigator conducting research obtains (1) data through intervention or interaction with the individual, or(2) identifiable private information. Research means a systematic investigation, including research development,testing and evaluation, designed to develop or contribute to generalizable knowledge. c. DOC regulations, 15 CFR Part 27, require that recipients maintain appropriate policies and procedures for the protection of human subjects. In the event it becomes evident that human subjects may be involved in this project, the recipient shall submit appropriate documentation to the Federal Program Officer for approval by the appropriate DOC officials. This documentation may include: 1. Documentation establishing approval of the project by an institutional review board (IRB) approved for Federal-wide use under Department of Health and Human Services guidelines, see 15 CFR § 27.103; 2. Documentation to support an exemption for the project under 15 CFR § 27.101(b); 3. Documentation to support deferral for an exemption or IRB review under 15 CFR § 27.118; 4. Documentation of IRB approval of any modification to a prior approved protocol or to an informed consent form. d. No work involving human subjects may be undertaken, conducted, or costs incurred 25 and/or charged for human subjects research, until the appropriate documentation is approved in writing by the Grants Officer. Notwithstanding this prohibition, work may be initiated or costs incurred and/or charged to the project for protocol or instrument development related to human subjects research. .07 Federal Employee Expenses Federal agencies are generally barred from accepting funds from a recipient to pay transportation, travel, or other expenses for any Federal employee unless specifically approved in the terms of the award. Use of award funds (Federal or non-Federal) or the recipient's provision of in-kind goods or services, for the purposes of transportation, travel, or any other expenses for any Federal employee may raise appropriation augmentation issues. In addition, DOC policy prohibits the acceptance of gifts, including travel payments for Federal employees, from recipients or applicants regardless of the source. .08 Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects. Pursuant to EO 13202, "Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects,"unless the project is exempted under section 5(c) of the order, bid specifications, project agreements, or other controlling documents for construction contracts awarded by recipients of grants or cooperative agreements, or those of any construction manager acting on their behalf, shall not: a. include any requirement or prohibition on bidders, offerors, contractors, or subcontractors about entering into or adhering to agreements with one or more labor organizations on the same or related construction project(s); or b. 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). .09 Minority Serving Institutions (MSIs) Initiative Pursuant to Eos13256, 13230, and 13270, DOC is strongly committed to broadening the participation of MSIs in its financial assistance programs. DOC's goals include achieving full participation of MSIs in order to advance the development of human potential, strengthen the Nation's capacity to provide high-quality education, and increase opportunities for MSIs to participate in and benefit from Federal financial assistance 26 programs. DOC encourages all applicants and recipients to include meaningful participation of MSIs. Institutions eligible to be considered MSIs are listed on the Department of Education website. .10 Research Misconduct Scientific or research misconduct refers to the fabrication, falsification, or plagiarism in proposing,performing, or reviewing research, or in reporting research results. It does not include honest errors or differences of opinion. The recipient organization has the primary responsibility to investigate allegations and provide reports to the Federal Government. Funds expended on an activity that is determined to be invalid or unreliable because of scientific misconduct may result in a disallowance of costs for which the institution may be liable for repayment to the awarding agency. The Office of Science and Technology Policy at the White House published in the Federal Register on December 6, 2000, a final policy that addressed research misconduct. The policy was developed by the National Science and Technology Council (65 FR 76260). The DOC requires that any allegation be submitted to the Grants Officer,who will also notify the OIG of such allegation. Generally,the recipient organization shall investigate the allegation and submit its findings to the Grants Officer. The DOC may accept the recipient's findings or proceed with its own investigation. The Grants Officer shall inform the recipient of the DOC's final determination. .11 Publications, Videos and Acknowledgement of Sponsorship Publication of the results or findings of a research project in appropriate professional journals and production of video or other media is encouraged as an important method of recording and reporting scientific information. It is also a constructive means to expand access to federally funded research. The recipient is required to submit a copy to the funding agency and when releasing information related to a funded project include a statement that the project or effort undertaken was or is sponsored by DOC. The recipient is also responsible for assuring that every publication of material (including Internet sites and videos) based on or developed under an award, except scientific articles or papers appearing in scientific,technical or professional journals, contains the following disclaimer: "This [report/video] was prepared by [recipient name] under award [number] from [name of operating unit], U.S. Department of Commerce. The statements, findings, conclusions, and recommendations are those of the author(s)and do not necessarily reflect the views of the [name of operating unit] or the U.S. Department of Commerce." This also applies to videos produced under DOC financial assistance awards. .12 Care and Use of Live Vertebrate Animals Recipients must comply with the Laboratory Animal Welfare Act of 1966 (Public Law 27 89-544), as amended, (7 U.S.C. §§ 2131 et seq.) (animal acquisition, transport, care, handling, and use in projects), and implementing regulations, 9 CFR Parts 1, 2, and 3; the Endangered Species Act(16 U.S.C. §§ 1531 et seq.); Marine Mammal Protection Act(16 U.S.C. §§ 1361 et seq.) (taking possession, transport, purchase, sale, export or import of wildlife and plants); The Nonindigenous Aquatic Nuisance Prevention and Control Act (16 U.S.C. §§ 4701 et seq.) (ensure preventive measures are taken or that probable harm of using species is minimal if there is an escape or release); and all other applicable statutes pertaining to the care, handling, and treatment of warm blooded animals held for research,teaching, or other activities supported by Federal financial assistance. No research involving vertebrate animals is permitted under any DOC financial assistance award unless authorized by the Grants Officer. .13 Homeland Security Presidential Directive— 12 If the performance of a grant award requires recipient organization personnel to have unsupervised physical access to a Federally controlled facility for more than 180 days or access to a Federal information system, such personnel must undergo the personal identity verification credential process. In the case of foreign nationals, the DOC will conduct a check with U.S. Citizenship and Immigration Services' (USCIS)Verification Division, a component of the Department of Homeland Security (DUS),to ensure the individual is in a lawful immigration status and that they are eligible for employment within the US. Any items or services delivered under a financial assistance award shall comply with the Department of Commerce personal identity verification procedures that implement Homeland Security Presidential Directive -12, FIPS PUB 201, and OMB Memorandum M-05-24. The recipient shall insert this clause in all subawards or contracts when the subaward recipient or contractor is required to have physical access to a Federally controlled facility or access to a Federal information system. .14 Compliance with Department of Commerce Bureau of Industry and Security Export Administration Regulations a. This clause applies to the extent that this financial assistance award involves access to export-controlled information or technology. b. In performing this financial assistance award, the recipient may gain access to export- controlled information or technology. The recipient is responsible for compliance with all applicable laws and regulations regarding export-controlled information and technology, including deemed exports. The recipient shall establish and maintain throughout performance of the financial assistance award effective export compliance procedures at non-DOC facilities. At a minimum,these export compliance procedures must include adequate controls of physical, verbal, visual and electronic access to export-controlled information and technology. 28 c. Definitions 1. Deemed Export. The Export Administration Regulations (EAR) define a deemed export as any release of technology or source code subject to the EAR to a foreign national, both in the United States and abroad. Such release is"deemed"to be an export to the home country of the foreign national. 15 CFR § 734.2(b)(2)(ii). 2. Export-controlled information and technology. Export-controlled information and technology subject to the EAR(15 CFR §§ 730-774), implemented by the DOC Bureau of Industry and Security, or the International Traffic In Arms Regulations (ITAR) (22 CFR §§ 120-130), implemented by the Department of State, respectively. This includes, but is not limited to, dual-use items, defense articles and any related assistance, services, software or technical data as defined in the EAR and ITAR. d. The recipient shall control access to all export-controlled information and technology that it possesses or that comes into its possession in performance of this financial assistance award, to ensure that access is restricted, or licensed, as required by applicable Federal laws, Executive Orders, and/or regulations. e. Nothing in the terms of this financial assistance award is intended to change, supersede, or waive the requirements of applicable Federal laws, Executive Orders or regulations. f. The recipient shall include this clause, including this paragraph (f), in all lower tier transactions (subawards, contracts, and subcontracts) under this financial assistance award that may involve access to export-controlled information technology. .15 The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended, and the implementing regulations at 2 CFR Part 175. This Act authorizes termination of financial assistance provided to a private entity, without penalty to the Federal Government, if the recipient or subrecipient engages in certain activities related to trafficking in persons. .16 The Federal Funding Accountability and Transparency Act of 2006 (Pub. L. No. 109-282). This Act requires that the Federal government establish a single searchable awards website by January 1, 2008 to enable the public to see where Federal funds for grant and contract awards are being spent. Subaward and subcontract data will be required on the website by January 1, 2009. Funding data retroactive to October 1, 2006 must be reported by all Federal agencies and their recipient and subrecipient organizations. 29 Data elements will include: Name of entity receiving award; Award amount; Transaction type, funding agency, Catalog of Federal Domestic Assistance Number, and descriptive award title; Location of: entity,primary location of performance (City/State/Congressional District/Country; and Unique identifier of entity. The data will be required within 30 days of an award. The DOC will be implementing this Act, which will require recipients and subrecipients to report the required data. 30 TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit E American Recovery and Reinvestment Act of 2009 U.S. Department of Commerce American Recovery and Reinvestment Act Award Terms NOTE: This award is subject to the terms and conditions of the award,the requirements of federal law and the provisions of the American Recovery and Reinvestment Act of 2009,Pub.L.No. 111-5, 123 STAT. 115, including section 1553 of the Recovery Act,Protecting State and Local Government and Contractor Whistleblowers(123 STAT.297). A. Award Terms Required Pursuant to 2 CFR Part 176 1. Reporting and Registration Requirements under Section 1512 of the American Recovery and Reinvestment Act of 2009,Public Law 111-5. (a) This award requires the Recipient to complete projects or activities which are funded under the American Recovery and Reinvestment Act of 2009 ("Recovery Act") and to report on use of Recovery Act funds provided through this award. Information from these reports will be made available to the public. (b) The reports are due no later than ten calendar days after each calendar quarter in which the Recipient receives the assistance award funded in whole or in part by the Recovery Act. (c)Recipients and their first-tier Recipients must maintain current registrations in the Central Contractor Registration (www.ccr.gov) at all times during which they have active federal awards funded with Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System (DUNS)Number(www.dnb.com) is one of the requirements for registration in the Central Contractor Registration. (d) The Recipient shall report the information described in section 1512(c)using the reporting instructions and data elements that will be provided online at www.FederalReporting.gov and ensure that any information that is pre-filled is corrected or updated as needed. 2. Use of American Iron, Steel, and Manufactured Goods under Section 1605 of the Recovery Act. (a)None of the funds appropriated or otherwise made available by the Recovery Act may be used 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. (b) Subsection (a) shall not apply in any case or category of cases in which the head of the Federal department or agency involved finds that-- (1)applying subsection (a)would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent. 2 (c) If the head of a Federal department or agency determines that it is necessary to waive the application of subsection (a) based on a finding under subsection (b),the head of the department or agency shall publish in the Federal Register a detailed written justification as to why the provision is being waived. (d) This award term shall be applied in a manner consistent with United States obligations under international agreements. (e) AWARD TERM.--The award term required by 2 CFR Part 176, Subpart B is set out in full as Recovery Act Award Terms—Addendum to Award Term A.2 below. 3. Wage Rate Requirements under Section 1606 of the Recovery Act. (a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to the Recovery Act shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR Parts 1, 3, and 5 to implement the Davis- Bacon and related Acts. Regulations in 29 CFR 5.5 instruct agencies concerning application of the standard Davis-Bacon contract clauses set forth in that section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall ensure that the standard Davis-Bacon contract clauses found in 29 CFR 5.5(a) are incorporated in any resultant covered contracts that are in excess of$2,000 for construction, alteration or repair(including painting and decorating). (b)For additional guidance on the wage rate requirements of section 1606, contact your awarding agency. Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning the application of Davis-Bacon requirements to a particular federally assisted project to the Federal agency funding the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14. 4. Single Audit Requirements: Recovery Act Transactions listed in Schedule of Expenditures of Federal Awards; Recipient Responsibilities for Informing Sub-Recipients. (a)To maximize the transparency and accountability of funds authorized under the Recovery Act as required by Congress and in accordance with 2 CFR 215, subpart . 21 "Uniform Administrative Requirements for Grants and Agreements"and OMB A-102 Common Rules provisions, Recipients agree to maintain records that identify adequately the source and application of Recovery Act funds. (b)For Recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A-133, "Audits of States,Local Governments, and Non-Profit Organizations,"Recipients agree to separately identify the expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards(SEFA)and the Data Collection Form (SF-SAC)required by OMB Circular A-133. This shall be accomplished by identifying expenditures for Federal awards made 3 under Recovery Act separately on the SEFA, and as separate rows under Item 9 of Part III on the SF- SAC by CFDA number, and inclusion of the prefix"ARRA-" in identifying the name of the Federal program on the SEFA and as the first characters in Item 9d of Part III on the SF-SAC. (c)Recipients agree to separately identify to each sub-recipient, and document at the time of sub-award and at the time of disbursement of funds,the Federal award number, CFDA number, and amount of Recovery Act funds. When a Recipient awards Recovery Act funds for an existing program,the information furnished to sub-recipients shall distinguish the sub-awards of incremental Recovery Act funds from regular sub-awards under the existing program. (d)Recipients agree to require their sub-recipients to include on their SEFA information to specifically identify Recovery Act funding similar to the requirements for the Recipient SEFA described above. This information is needed to allow the Recipient to monitor sub-recipient expenditure of Recovery Act funds properly,and to allow oversight by the Federal awarding agencies, Offices of Inspector General and the Government Accountability Office. B. Additional Recovery Act Award Terms 1. Limitation on Expenditures Relating to Certain Activities. Pursuant to section 1604 of the Recovery Act, expenses related to any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool are not eligible expenses under this award and will not be reimbursed. 2. Use of the American Recovery and Reinvestment Act Logo on Construction Signs. All projects which are funded by the Recovery Act shall display signage that features the Primary Emblem throughout the construction phase. The signage should be displayed in a prominent location on site. Some exclusions may apply. The Primary Emblem should not be displayed at a size less than 6 inches in diameter. The agency awarding funds will provide additional instructions regarding specifications. 3. SEC. 1511 Certification. Pursuant to section 1511 of the Recovery Act, with respect to funds made available to State or local governments for infrastructure investments,the Governor, mayor, or other chief executive, as appropriate, shall certify that the infrastructure investment has received the full review and vetting required by law and that the chief executive accepts responsibility that the infrastructure investment is an appropriate use of taxpayer dollars. Such certification shall include a description of the investment, the estimated total cost, and the amount of covered funds to be used, and shall be posted on a website and linked to the website established by section 1526. A State or local agency may not receive a disbursement of infrastructure investment funding from funds made available in this Act unless this certification is made and posted. 4. Quick Start Activities. Pursuant to section 1602 of the Recovery Act, in using funds made available in this Act for infrastructure investment, Recipient shall give preference to activities that can be started and completed expeditiously, including a goal of using at least 50 percent of the funds for activities that can be initiated not later than 120 days after the date of the award of funds.1 Recipients ' In lieu of"within 120 days of enactment of this Act"as provided in section 1602. 4 shall also use grant funds in a manner that maximizes job creation and economic benefit. 5. SEC. 1515 Access of Offices of Inspector General to Certain Records and Employees. (a) Access- With respect to each contract or grant awarded using covered funds, any representative of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.), is authorized-- (1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local agency administering such contract, that pertain to, and involve transactions relating to, the contract, subcontract, grant, or subgrant; and (2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions. 6. First Tier Subrecipients' Planning Activities. Recipients shall require first tier subrecipients to obtain a DUNS number (or update an existing DUNS record), and to register with the Central Contractor Registration (CCR) no later than the first time Recovery Act data requirements are due (October 10, 2009). 7. Referral of False Claims to Department of Commerce Inspector General. Recipients and subrecipients awarded funds made available under the Recovery Act shall promptly refer to the Department of Commerce Inspector General any credible evidence that a principal, employee, agent, contractor, subrecipient, subcontractor, or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving those funds. Referrals can be made online at http://www.oig.doc.gov/oig/hotline/000016.html or by calling 1-800-424-5197. 8. Recovery Act One-Time Funding. This award is made with funds available under the Recovery Act and is intended to provide a one-time injection of funds for purposes of stimulating the American economy. 5 Recovery Act Award Terms—Addendum to Award Term A.2 2.01. Buy American: Projects Not Implicating International Agreements--Funds Used for Construction,Alteration, Maintenance, or Repair of a Public Building or Public Work that Does NOT Involve Iron, Steel,or Manufactured Goods Covered under International Agreement REQUIRED USE OF AMERICAN IRON, STEEL,AND MANUFACTURED GOODS-SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (RECOVERY ACT) (a)Definitions. As used in this award term and condition— "Manufactured good"means a good brought to the construction site for incorporation into the building or work that has been-- (1)Processed into a specific form and shape; or (2)Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. "Public building"and "public work" means a public building of, and a public work of, a governmental entity(the United States; the District of Columbia; commonwealths,territories, and minor outlying islands of the United States; State and local governments; and multi-State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation,bridges, dams, plants,highways, parkways, streets, subways, tunnels, sewers, mains,power lines, pumping stations, heavy generators, railways, airports,terminals, docks, piers, wharves, ways, lighthouses, buoys,jetties, breakwaters, levees, and canals, and the construction, alteration,maintenance, or repair of such buildings and works. "Steel"means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. (b)Domestic preference. (1)This award term and condition implements Section 1605 of the Recovery Act, by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3)and(b)(4)of this term and condition. (2)This requirement does not apply to the material listed by the Federal Government as follows: [Award official to list applicable excepted materials or indicate"none"] (3)The award official may add other iron, steel, and/or manufactured goods to the list in paragraph(b)(2)of this term and condition if the Federal government determines that- (i)The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; (ii)The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities 6 and of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. (c)Request for determination of inapplicability of Section 1605 of the Recovery Act. (1)(i)Any Recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(3)of this term and condition shall include adequate information for Federal Government evaluation of the request, including— (A)A description of the foreign and domestic iron, steel, and/or manufactured goods; (B)Unit of measure; (C)Quantity; (D)Cost; (E)Time of delivery or availability; (F)Location of the project; (G)Name and address of the proposed supplier; and (H)A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph(b)(3)of this term and condition. (ii)A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph(d)of this term and condition. (iii)The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the construction site and any applicable duty. (iv)Any Recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the Recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the Recipient does not submit a satisfactory explanation,the award official need not make a determination. (2)If the Federal government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies,the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest,the amended award shall reflect adjustment of the award amount,redistribution of budgeted funds, and/or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a). (3)Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies,use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the Recovery Act. 7 (d)Data. To permit evaluation of requests under paragraph(b)of this term and condition based on unreasonable cost,the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: FOREIGN AND DOMESTIC ITEMS COMPARISON Description Unit of Measure Quantity Price(Dollars)* Item 1: Foreign steel,iron,or manufactured good Domestic steel,iron,or manufactured good Item 2: Foreign steel,iron,or manufactured good Domestic steel,iron,or manufactured good [List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] [*Include all delivery costs to the construction site.] 8 2.02. Buy American: Projects Implicating International Agreements --Funds Used for Construction,Alteration, Maintenance, or Repair of a Public Building or Public Work that DO Involve Iron, Steel,or Manufactured Goods Covered under International Agreement (a)Definitions. As used in this award term and condition— "Designated country" -- (1)A World Trade Organization Government Procurement Agreement country (Aruba,Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea(Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands,Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom; (2)A Free Trade Agreement(FTA)country(Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); or (3)A United States-European Communities Exchange of Letters (May 15, 1995) country(Austria,Belgium, Bulgaria, Cyprus, Czech Republic, Denmark,Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom). "Designated country iron, steel, and/or manufactured goods"-- (1)Is wholly the growth,product, or manufacture of a designated country; or (2)In the case of a manufactured good that consist in whole or in part of materials from another country, has been substantially transformed in a designated country into a new and different manufactured good distinct from the materials from which it was transformed. "Domestic iron, steel, and/or manufactured good" -- (1)Is wholly the growth,product, or manufacture of the United States; or (2)In the case of a manufactured good that consists in whole or in part of materials from another country,has been substantially transformed in the United States into a new and different manufactured good distinct from the materials from which it was transformed. There is no requirement with regard to the origin of components or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the United States. "Foreign iron, steel, and/or manufactured good" means iron, steel and/or manufactured good that is not domestic or designated country iron, steel, and/or manufactured good. "Manufactured good"means a good brought to the construction site for incorporation into the building or work that has been-- (1)Processed into a specific form and shape; or (2)Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. "Public building"and "public work" means a public building of,and a public work of, a governmental entity(the United States; the District of Columbia; commonwealths,territories, and minor outlying islands of the United States; State and local governments;and multi-State, regional, 9 or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants,highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations,heavy generators, railways, airports, terminals, docks, piers, wharves,ways, lighthouses, buoys,jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. "Steel" means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. (b)Iron, steel, and manufactured goods. (1)This award term and condition implements-- (i) Section 1605(a)of the Recovery, by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States; and (ii) Section 1605(d),which requires application of the Buy American requirement in a manner consistent with U.S. obligations under international agreements. The restrictions of section 1605 of the Recovery Act do not apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section 1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Party to an international agreement that obligates the Recipient to treat the goods and services of that Party the same as domestic goods and services. This obligation shall only apply to projects with an estimated value of $7,443,000 or more. (2)The Recipient shall use only domestic or designated country iron, steel, and manufactured goods in performing the work funded in whole or part with this award, except as provided in paragraphs(b)(3)and(b)(4)of this term and condition. (3)The requirement in paragraph(b)(2)of this term and condition does not apply to the iron, steel, and manufactured goods listed by the Federal Government as follows: [Award official to list applicable excepted materials or indicate"none"] (4)The award official may add other iron, steel, and manufactured goods to the list in paragraph(b)(3)of this award term and condition if the Federal government determines that- (i)The cost of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the overall cost of the project by more than 25 percent; (ii)The iron, steel, and/or manufactured goods is not produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or (iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. (c)Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American Act. 10 (1)(i)Any Recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph(b)(4)of this term and condition shall include adequate information for Federal Government evaluation of the request, including— (A)A description of the foreign and domestic iron, steel, and/or manufactured goods; (B)Unit of measure; (C)Quantity; (D)Cost; (E)Time of delivery or availability; (F)Location of the project; (G)Name and address of the proposed supplier; and (H)A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph(b)(4)of this term and condition. (ii)A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph(d)of this term and condition. (iii)The cost of iron, steel, or manufactured goods shall include all delivery costs to the construction site and any applicable duty. (iv)Any Recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the Recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the Recipient does not submit a satisfactory explanation,the award official need not make a determination. (2)If the Federal government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies,the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest,the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds,and/or other appropriate actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods.. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods,the award official shall adjust the award amount or redistribute budgeted funds, as appropriate, by at least the differential established in 2 CFR 176.110(a). (3)Unless the Federal Government determines that an exception to the section 1605 of the Recovery Act applies,use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or manufactured goods is noncompliant with the applicable Act. 11 (d)Data. To permit evaluation of requests under paragraph(b)of this term and condition based on unreasonable cost,the applicant shall include the following information and any applicable supporting data based on the survey of suppliers: FOREIGN AND DOMESTIC ITEMS COMPARISON Description Unit of Measure Quantity Price(Dollars)* Item 1: Foreign steel,iron,or manufactured good Domestic steel,iron,or manufactured good Item 2: Foreign steel,iron,or manufactured good Domestic steel,iron,or manufactured good [List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] [*Include all delivery costs to the construction site.] TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit F Special Award Conditions, NT10B1X5570107 Special Award Conditions Award Number: NT10BIX5570107 Amendment Number: 0 1)ARRA Special Award Condition for Reporting Requirements Reporting Requirements: Pursuant to ARRA Special award conditions which are incorporated into this award. The recipient will report on the progress of their approved projects as reflected in the description of work which is incorporated by reference. Information from the progress reports will be available to the public. The Recipient shall report the information described in section 1512(c)of the ARRA special award Condition using the reporting instructions and data elements that are provided online at www.FederalReporting.gov and ensure that any information that is pre-filled is corrected or updated as needed. Note: This is the primary reporting requirement under ARRA. Additional progress reports are needed for the program office which is identified in a separate special award condition. The ARRA report is due no later than 10 days following the end of each calendar reporting period. For example, for the period ending September 30,due October 10th, period ending December 31, due January 10th, period ending March 31, due April 10th,period ending June 30, due July 10, following this pattern until the expiration date of the award is reached. Failure to provide acceptable reporting by the due date may result in the suspension or termination of your award. 2)BTOP-Wide SACs A. Guidelines for Matching Funds: Recipient will provide, from non-Federal sources,not less than 20 percent of the total project cost. Matching funds can be in the form of either cash or in-kind contributions consistent with the 15 CFR 14.23,24.3 and 24.24 as applicable. The recipient may be asked to provide supporting documentation upon request from the Grants Officer or NTIA. B. Incorporation of Requirements from the Notice of Funding Availability(NOFA): The recipient shall comply with the requirements found in the Department of Commerce,National Telecommunications and Information Administration Broadband Technology Opportunities Program, 75 FR 3792,January 22,2010 (http://www.ntia.doc.gov/frnotices/2010/FR_BTOPNOFA_100115.pdf) C. Notice of Limited Waiver of Section 1605 (Buy American Requirement)of the American Recovery and Reinvestment Act of 2009(ARRA) In accordance with Section 1605 of the Recovery Act,the Secretary of Commerce has granted a limited waiver of the Recovery Act's Buy American requirements with respect to certain broadband equipment that will be used in projects funded under the BTOP.A description of this equipment is included in the notice of waiver published in the Federal Register at 74 FR31410(July 1,2009). D. Whistleblower Protection Act Requirement: Page 1 of 9 The Recipient shall comply with the Whistleblower Protection requirements of the American Recovery and Reinvestment Act(Recovery Act), Section 553 of Division A, Title XV, Public Law 111-5 which provides protection for employees of non-federal employers including employees of state and local governments,contractors, subcontractors,recipients, and any other non-federal employers receiving Recovery Act fund recipients,making specified disclosures relating to possible fraud,waste, or abuse of Recovery Act funds. The act requires any non-federal employer receiving Recovery Act funds to post a notice of the rights and remedies provided under the Act. The Recipient shall post notice of employees rights and remedies for whistleblower protections provided under section 1553 of the American Recovery and Reinvestment Act of 2009(Pub. L. 111-5)and shall include this notice requirement in all contracts with subrecipients, contractors, and subcontractors Recipients are reminded that the Office of Inspector General will verify the appropriate place of this poster as part of any field work conducted. Failure to display the poster may result in an audit finding. The poster can be downloaded from the following web site: http://www.oig.doc.gov/recovery/whistleblower.html E. Interest-Bearing Accounts This award is subject to 15 CFR 24.21 requiring recipients of Federal financial assistance to maintain advances of Federal funds in interest bearing accounts. Interest earned on Federal advances deposited in such accounts(with the exception of $100 per year,which may be retained for administrative expenses) shall be remitted promptly. The complete address for remitting checks for interest earned on Federal advances is Department of Health and Human Services,Payment Management System,P.O. Box 6021, Rockville,MD 20852. Recipients that do not have electronic remittance capability should send a check to this address. In keeping with Electronic Funds Transfer rules(31 USC part 206), interest should be remitted to the HHS Payment Management System through an electronic medium such as the FEDWIR Deposit System. Electronic remittances should be in the format and should include any data that are specified by the HHS as being necessary to facilitate direct deposit in HHS'account at the Department of Treasury. F. Nondiscrimination and Interconnection The recipient shall comply with the nondiscrimination and network interconnection obligations set forth in section V.D.3.b of the NOFA and in Section 6001(j)of the Recovery Act. Recipients may be asked to provide supporting documentation upon request from the Grants Officer. Failure to comply with this provision of the award may be considered grounds for any or all of the following actions: establishment of an account receivable for affected BTOP award,withholding payments under any and all BTOP awards to the recipient,changing the method of payment from advance to reimbursement only,or the imposition of other special award conditions, suspension of any BTOP active awards, and termination of any BTOP active awards. G. Davis-Bacon Act The Recipient shall obtain and maintain in its official records documentation of weekly certified payroll reports and the Statement of Compliance from itself and all subrecipients, contractors,and subcontractor(s)in accordance with Section 1606 of the American Recovery and Reinvestment Act of 2009 and the Davis-Bacon Act and related acts. The Recipient is not required to submit this documentation to the Grants Office except in response to a request for this information from its Grants Officer. The authorized representatives and agents of the Grants Office shall be permitted to inspect all work,materials,payrolls,personnel records, invoices of materials,and other relevant data and records. Page 2 of 9 Ten days prior to bid opening, any party soliciting a subrecipient,contractor, or subcontractor for work under this Award to which Davis-Bacon wage determinations apply must verify whether there have been any updates to the applicable Davis-Bacon wage determinations by reviewing the Department of Labor Wage Determinations OnLine website, free of charge,at www.wdol.gov. If there have been updates to the wage determinations,then these updated wage rates must be issued in a bid addendum. The Davis Bacon wage rates that are current ten days prior to the bid opening are the wage rates that will govern work performed under such solicitation. 3)Automated Standard Application for Payment System Automated Standard Application for Payments system(ASAP) Notwithstanding Section A.02 of the DoC Financial Assistance Standard Terms and Conditions, dated March 2008: a. The advanced method of payment shall be authorized unless otherwise specified in a special award condition. b. Payments will be made through electronic funds transfers, using the Department of Treasury's Automated Standard Application for Payment(ASAP)system and in accordance with the requirements of the Debt Collection Improvement Act of 1996. The following information is required when making withdrawals for this award: (1)ASAP account identification(id)=award number found on the cover sheet of this award; (2)Agency Location Code(ALC)= 13060001;and(3)Region Code=02. Recipients do not need to submit a"Request for Advance or Reimbursement" (SF-270)for payments relating to this award. All non-ASAP Recipient Organizations must enroll electronically. The ASAP system no longer accepts paper forms for enrollment. If you are not currently enrolled in the ASAP system you must provide the Federal Awarding Agency with a Point of Contact name,e-mail address,mailing address,telephone number,EIN and DUNS numbers of your organization in order for the Federal Awarding Agency Enrollment Initiator(EI)to begin the on-line enrollment. If you have questions on this requirement please contact the Grant Specialist responsible for this award. If you have questions on the electronic process step-by-step instructions you may contact your responsible Regional Finance Center. Advances taken through the ASAP shall be limited to the minimum amounts necessary to meet immediate disbursement needs. Advanced funds not disbursed in a timely manner must be promptly returned,via an ASAP credit,to the account from which the advanced funding was withdrawn. Advances shall be for periods not to exceed 30 days. c. This award has the following control or withdrawal limits set in ASAP: _X_None Agency Review required for all withdrawals(see explanation below) Agency review required for all withdrawal requests over $ (see explanation below) Maximum Draw Amount controls(see explanation below) Page 3 of 9 $ each month $ each quarter $ each year d. Funds that have been withdrawn through ASAP may be returned to ASAP via the Automated Clearing House(ACH) or via FEDWIRE. The ACH or FEDWIRE transaction may only be performed by the Recipient's financial institution. Full or partial payments received by a Payment Requestor/Recipient Organization may be returned to ASAP. All funds returned to the ASAP system will be credited to the ASAP Suspense Account. The Suspense Account allows the Regional Financial Center to monitor returned funds and ensure that they are credited to the correct ASAP account. Returned funds that cannot be identified and classified to an ASAP account will not be accepted and will be returned to the originating depository financial institution(ODFI). It is essential that the Payment Requestor/Recipient Organization provide its financial institution with ASAP account information(ALC, Recipient ID and Account ID)to which the returned funds are to be credited. Additional detailed information can be found at: http://www.fms.treas.gov/asap/pay-return2.pdf There is a 10-day deadline for the head of the organization to initiate recipient enrollment upon receipt of ASAP registration notification. Failure to comply could subject the award to a change in the method of payment to reimbursement only. 4)Post-Award Reporting Requirements The recipient shall submit a"Financial Status Report" (SF-425)on a quarterly basis for the periods ending March 31,June 30, September 30, and December 31 or any portion thereof Reports are due no later than 30 days following the end of each reporting period.A final SF-425 shall be submitted within 90 days after the expiration date of the award. The recipient shall submit program-specific quarterly performance reports electronically to the Federal Program Officer in the same frequency as the Financial Status Report(SF-425)unless otherwise authorized by the Grants Officer. The Federal Program Officer will provide updated instructions for accurate report completion at least 30 days prior to reporting period end date. 5)Infrastructure-Wide SACs A. Sale or Lease of Real Property Purchased with Award Funds: Recipients may not sell or lease any portion of the award-funded broadband facilities or equipment during their life, except as otherwise approved by NTIA. NTIA will consider a petition for waiver of the restriction if: (1)the transaction is for adequate consideration; (2)the purchaser or lessee agrees to fulfill the terms and conditions relating to the project after such sale or lease;and(3)the transaction would be in the best interests of those served by the project. The petition for waiver may be submitted at any time during the life of the award-funded faculties and equipment, and it must include supporting documentation and justification regarding why the petition should be granted. This requirement is not meant to limit CCI awardees from leasing facilities to another service provider for the provision of broadband services,nor is this section meant to restrict a transfer of control of the awardee(NOFA, Section IX.C.2). Page 4 of 9 B. Security Interest in Real Property including Broadband Facilities and Equipment The recipient shall execute a security interest or other statement of NTIA's interest in real property including broadband facilities and equipment acquired or improved with Federal funds acceptable to NTIA,which must be perfected and placed on record in accordance with local law. This security interest will provide that, for the estimated useful life of the real property, facilities, or equipment,the recipient will not sell,transfer,convey, or mortgage any interest in the real property including broadband equipment acquired or improved in whole or in part with Federal funds made available under the award,nor shall the recipient use the real property including broadband facilities and equipment and for purposes other than the purposes for which the award was made, without the prior written approval of the Grants Officer. Such approval may be withheld until such time as the recipient first pays to NTIA the Federal share of the real property including broadband facilities and equipment as provided in 15 CFR 14.32 (15 CFR 24.31 for state, local, or other government entities). This security interest shall be executed in advance of any sale or lease and not later than closeout of the grant. C. Construction-Related Requirements - Maintenance. The recipient agrees that, for the estimated useful life of the facility funded with this award,the project will be properly and efficiently administered, operated, and maintained for the purpose authorized by this award and in accordance with the terms, conditions,requirements,and provisions of the award. If NTIA determines at any time during the estimated useful life of the project,that the project and any project property is not being properly and efficiently administered, operated,and maintained,NTIA shall have the right to terminate this award for cause and pursue any other remedies allowed by law. - Compliance. The recipient shall comply, and must require each contractor or subcontractor to comply,with all applicable Federal, state, and local laws and regulations. - Energy Efficiency. The recipient shall apply,where feasible, sustainable, and energy efficient, design principles for the purpose of reducing pollution and energy costs and optimizing lifecycle costs associated with the construction. - Signs. The recipient is responsible for constructing,erecting,and maintaining in good condition throughout the construction period a sign(s)satisfactory to NTIA that identifies the project and indicates that the project is Federally funded.NTIA also may require that the recipient maintain a permanent plaque or sign at the project site with the same or similar information. - Land,Easements,and Rights of Way. The recipient must disclose all encumbrances to the operating unit. The operating unit will not accept any encumbrance that interferes with the construction, intended use, operation, or maintenance of the project during its estimated useful life. Unless otherwise provided for in the award,prior to grant of the award and commencement of construction,or when requested by the operating unit,the recipient must furnish evidence, satisfactory in form and substance to the operating unit,that title to real property is vested in the recipient, and that it has obtained any rights-of-way, easements, State and local government permits, long-term leases, or other property interests. - Relocation Assistance. The provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,as amended, (Pub. L.No. 91-646;42 U.S.C. 4601 et seq.), are applicable to each recipient of assistance from Page 5 of 9 an operating unit. This Act provides assistance to persons, businesses, or farm operations affected by the acquisition, rehabilitation or demolition of real property acquired for a project financed wholly or in part with Federal assistance funds. It also requires compliance with specific guidelines pertaining to reimbursable costs incidental to such land acquisition. - Tribal Employment Rights Ordinances. In accordance with Departmental policy,all operating units must recognize Tribal Employment Rights Ordinances("TEROs"),which may provide for preferences in contracting and employment, in connection with its financial assistance awards. Tribal ordinances requiring preference in contracting, hiring,and firing and the payment of a TERO fee are allowable provisions under Federal awards and should be incorporated by the operating unit under its grants and contracts with American Indian and Alaska Native tribal governments. The payment of the TERO fee, which supports the tribal employment rights office to administer the preferences, should generally be allowable as an expense that is "necessary and reasonable for proper and efficient performance and administration" of an award, as provided under the applicable cost principles set out in 2 CFR 225. 6)New Award SAC This award number NT10BIX5570107,to Texas A&M University, supports the work described in the Recipient's proposal entitled Recovery Act- Texas Pipes dated 03/26/2010, and Revisions dated 06/17/2010 for AOR Certification,06/14/2010 for Budget Narrative,6/14/2010 for Budget Overview, 06/17/2010 for SF424C,06/17/2010 for SF424D,and 06/14/2010 for Detailed Budget which are incorporated into the award by reference. Where the terms of the award and proposal differ,the terms of the award shall prevail. 7)Matching Requirement Since this award requires the Recipient to provide$2,992,286 in project-related costs from non-federal sources,the Recipient must maintain it its official accounting records an accounting of$9,543,061. 8)Accounting System Verification The recipient shall submit a signed statement from an authorized official, verifying the ability of the recipient's financial management system to appropriately track and account for federal grant funds and expenditures associated with the funded project. This statement must be received within 30 days of the award start date and the recipient is not allowed to draw down any funds until this statement is received and accepted by the Grants Officer. 9)Baseline Project Plan Recipients shall submit baseline project plans and details regarding key outputs and outcomes from their projects within 45 days of the close of the first quarter. Federal Program Officers will provide guidance on the format and content of these baseline plans and details for this one-time data gathering activity. Due Date: 11/15/2010 Page 6 of 9 10)Environmental Assessment SACs The grantee may not expend any Federal funds other than Management and Administration(M&A)funds and limited, preliminary procurement funds prior to the following: - The completion of an environmental assessment(EA)that meets the requirements of the National Environmental Policy Act of 1969(42 U.S.C. 4321 et seq.); - The completion of any required consultations,to include consultations with the State Historic Preservation Office (SHPO)and the appropriate federally recognized Native American tribes,under Section 106 of the National Historic Preservation Act of 1966(16 U.S.C. 470 et seq.)(NHPA), and consultations with the U.S. Fish and Wildlife Service (USFWS)under Section 7 of the Endangered Species Act(16 U.S.C. 1531 et seq.); - Demonstration of compliance with all other applicable federal,state, and local environmental laws and regulations. Project implementation(site preparation,demolition,construction, ground disturbance, or any other project implementation activities)may not begin prior to the completion of the above activities. The completion of a draft EA, and completion of any required consultations under Section 106 of the NHPA,must be completed no later than six months after the award date unless a formal request for extension is submitted and approved by the Grants Officer. The grantee must comply with all conditions placed on the project as the result of consultation processes. The allowable use of M&A funds prior to beginning project implementation includes,but is not limited to,activities necessary for the completion of the following: - Pre-construction project planning, including collecting environmentally-related information; - Applications for environmental permits; - Studies such as the EA, and any wetland delineations, biological assessments,archaeological surveys,or other required analyses,and; - Required consultation activities. The allowable use of funds for limited,preliminary procurements prior to beginning project implementation includes,but is not limited to,the initiation of activities necessary to meet the project completion requirements as specified in the award, including the following: - Purchase or lease of equipment,or entering into binding contracts to do so; - Purchase of applicable or conditional insurance; - Funds used to secure land or building leases, including right-of-way easements. The allowable use of preliminary procurement funds is limited;must not result in an irrevocable commitment of resources;and is only allowed after inclusion in and approval of a revised 6-month expenditure plan. The revised 6- month expenditure plan is due within 30 days of receipt of this Special Award Condition(SAC)and will be reviewed by Page 7 of 9 the Environmental Program Officer,who will make recommendations to the Grants Officer(who has final approval authority)to ensure all proposed procurement funds are reasonable and necessary to ensure that the project completion deadline requirements are met. All contracts must contain early termination clauses with termination costs clearly specified. All equipment purchased or leased in advance of project implementation and before completion of the EA and applicable consultations must be stored in locations other than the proposed project site and where there will be no impact to the environment,human health, or cultural resources(in most cases,this means equipment must be stored in existing warehouses). Under no circumstances will grant funds be drawn down for clearing or excavating land, or demolition or construction of buildings or towers, before all environmental SACs are completed and cleared. This limited,preliminary allowable use of funds for purchases and leases is designed for recipient flexibility and to streamline preparation for project implementation simultaneously during development of the EA and conduct of consultations; the clause,and all applicable restrictions, is lifted once the EA,applicable consultations, and Finding of No Significant Impact(FONSI; if applicable)are complete and approved. While this Special Award Condition is in effect,the Recipient shall submit, in advance of any draw downs from Automated Standard Application for Payments(ASAP), a revised 6-month expenditure plan that presents the proposed M&A and limited,preliminary procurement activities and costs. The revised 6-month expenditure plan will be submitted electronically to the Environmental Program Officer,who will review it and provide recommendations to the Grants Officer for final approval to ensure that the proposed activities and expenditures are reasonable and necessary in the context of environmental compliance. The Environmental Program Officer must review and the Grants Officer must approve the revised 6-month expenditure plan prior to fund draw downs through ASAP. Once the EA has been completed,NTIA will review all documentation and determine whether the EA sufficiently addresses all resource areas and whether the project may qualify for a FONSI. Projects found to have significant impacts to environmental or historic resources may face de-obligation of funding if impacts cannot be mitigated. The grantee is required to provide any information requested by NTIA to ensure both initial and ongoing compliance with environmental and historic preservation laws,regulations, and best practices. The grantee shall notify NTIA within twenty-four(24) hours upon receipt of any notices of foreclosure;notices for continuing consultation received from the SHPO, Tribal Historic Preservation Office(THPO),USFWS,or other consulting party;or notices of noncompliance received from consulting authorities or regulatory agencies. Any change to the approved project scope that has the potential for altering the nature or extent of environmental or cultural resources impacts must be brought to the attention of NTIA and will be re-evaluated for compliance with applicable regulatory requirements. For all ground disturbing activities that occur during project implementation in the vicinity of known archaeological sites or suspected or known burials,the grant recipient must ensure that an archaeologist who meets the Secretary of the Interior's Professional Qualification Standards monitors ground disturbance,and if any potential archeological resources or buried human remains are discovered,then the grantee must immediately cease construction in that area and notify NTIA and the interested State Historic Preservation Offices, Tribal Historic Preservation Offices, and tribes. Such construction activities may then only continue with the written approval of NTIA. Due Date: 02/01/2011 Page 8 of 9 11)Overlap No Federal funds may be used to duplicate the construction, acquisition, or lease of broadband facilities funded by NTIA or RUS. The recipient must provide a detailed, street-level network map confirming that there is no duplication of construction. If it is determined by NTIA that there is overlap,the recipient must submit a revised budget and associated documentation that removes the costs associated with the duplication or reallocates costs to allowable activities within the same proposed funded service area. The detailed, street-level network map must be submitted no later than six months after the award date unless a formal request for extension is submitted and approved by the Grants Officer. Due Date: 02/01/2011 Page 9 of 9 TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit G Line Item Budget City of Corpus Christi Cash Match $144,000 Paid to TAMU under this Agreement City of Corpus Christi In-Kind Match $322,590 provided under this Agreement (Network Switch for Water Tower, Fiber Optic Cable and Conduit to Flour Bluff, and labor for a portion of installation) TAMU's NTIA Grant (Federal funds) $188,813 Total $655,403 TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit H 73 Fed. Reg. 7696 (February 11, 2008) 7696 Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices ADDRESSES:Copies of the ROD are The decisions made by the Forest your notice of appeal.Copies of the available upon request from the Field Service and the BLM,respectively, notice of appeal and petition for a stay Manager,Taos Field Office,Bureau of affect only those lands managed by each must also be submitted to the Interior Land Management,226 Cruz Alta Road, agency.The decision related to National Board of Land Appeals and to the Taos,NM 87571,or via the internet on Forest System lands is subject to Regional Office of the Solicitor at the the following Web site:http:// administrative review(appeal)in same time the original documents are www.blm.gov/nm.Copies of the ROD accordance with 36 CFR 215 (June filed with this office. and approved Final Environmental 2003).A written notice of appeal— Dated:January 15,2008. Impact Statement(FEIS)will also be clearly stating it is a notice of appeal Sam Des Georges, available at the following locations: being filed pursuant to 36 CFR 215.14— Forest Service,Santa Fe National Forest, must be filed within 45 days from the BLM—Taos Field Office Manager. 1474 Rodeo Road,Santa Fe,NM 87505, date of publication of legal notice of this Dated:January 15,2008. and Forest Service,Espanola Ranger decision in the Albuquerque Journal. Steve Romero, District, 1710 North Riverside Dr., The publication date in the Acting Forest Supervisor,Santa Fe National Espanola,NM 87533. Albuquerque Journal,newspaper of Forest. FOR FURTHER INFORMATION CONTACT: Sam record,is the exclusive means for [FR Doc.E8-2305 Filed 2-8-08;8:45 am] Des Georges,Field Office Manager, calculating the time to file an appeal. BILLING CODE 4310-FB-p Bureau of Land Management,Taos Field Those wishing to appeal this decision Office,226 Cruz Alta Rd.,Taos,NM should not rely upon dates or timeframe 87571,telephone—(505) 751-4713;or information provided by any other DEPARTMENT OF COMMERCE Sanford Hurlocker,District Ranger, source.Individuals or organizations that submitted substantive comments during [Docket No.080204117-8119-01] Forest Service,Espanola Ranger District, P.O.Box 3307,Espanola,NM 87533; the comment period specified at 36 CFR telephone—(505) 753-7331.Requests 215.6 may appeal this decision.The Department of Commerce Pre-Award q Notification Requirements for Grants for information may be submitted notice of appeal must meet the appeal and Cooperative Agreements electronically at http://www.blm.gov/ content requirements at 36 CFR 215.14. nm. An appeal must be filed(regular mail, AGENCY:Department of Commerce fax,e-mail,hand delivery,or express (DOC). SUPPLEMENTARY INFORMATION:The delivery)with the Appeal Deciding Water Diversion Project(the . PP g ACTION:Notice. Project)is designed to address the Officer.Written appeals must be submitted to:Deputy Regional Forester, SUMMARY:This notice revises and immediate need for accessing water Southwestern Region Appeal Deciding updates the Department of Commerce supplies for the Project Applicants.The Officer,333 Broadway Blvd.,SE., (DOC)Pre-Award Notification Forest Service and BLM are joint lead Albuquerque,NM 87102.Appeals may Requirements for Grants and agencies for this project,and the be faxed or e-mailed at Fax: (505)842– Cooperative Agreements,as published Department of Interior,Bureau of 3173,and E-mail:appeals- in the Federal Register(66 FR 49917)on Reclamation,City of Santa Fe,and Santa southwestern@fs.fed.us. October 1,2001,as amended on October Fe County are cooperating agencies.The The Forest Service's office business 30,2002 (67 FR 66109)and on City of Santa Fe,Santa Fe County,and hours for those submitting hand- December 30,2004 (69 FR 78389).This Las Campanas Limited Partnership are delivered appeals are:8 a.m.to 4:30 announcement constitutes a the"Project Applicants." p.m.Monday through Friday,excluding recompilation of the Department of The BLM's and Forest Service's holidays.Electronic comments must be Commerce pre-award requirements for decision is to authorize rights-of-way submitted in a format such as an e-mail grants and cooperative agreements, and easements to the Project Applicants message,plain text(.txt),rich text including all amendments and revisions so that they may construct,operate,and format(.rtf),Adobe(.pdf)and Word to date. maintain the road improvements,major (.doc)to appeals- facilities and associated infrastructure, southwestern@fs.fed.us.The appeal DATES:The provisions are effective and their locations as described in the must have an identifiable name attached Feburary 11se,2008. Proposed Action.In addition,several or verification of identity will be FOR FURTHER INFORMATION CONTACT:Gary options have been selected for the required.A scanned signature may serve Johnson,Office of Acquisition proposed sediment facility and sand as verification on electronic appeals. Management,Telephone Number-202- disposal systems;and for a section of The decision related to BLM managed 482-1679. treated water pipeline.Power upgrades lands may be appealed to the Interior SUPPLEMENTARY INFORMATION:The DOC to service the proposed facilities are also Board of Land Appeals,Office of the is authorized to award grants and described in the Final Environmental Secretary,in accordance with the cooperative agreements under a wide Impact Statement(FEIS). regulations contained in 43 CFR range of programs that support This decision conforms to existing 2801.10(a).If an appeal is filed,the economic development;international laws and regulations,provides for notice of appeal must be filed with the trade;minority businesses;standards resource protection and mitigation,and Bureau of Land Management,Taos Field and technology;oceanic/atmospheric is consistent with the Santa Fe National Office,Field Office Manager,226 Cruz services;and telecommunications and Forest Plan and the Taos Resource Alta Road,Taos,NM 87571,within 30 information. Management Plan.This decision is days of the date the notice of the It is the policy of the DOC to seek full based on a comparison of the potential decision appears in the Federal and open competition for award of environmental effects of the Proposed Register.If you wish to file a petition discretionary financial assistance funds Action,other alternatives considered in pursuant to 43 CFR 2801.10(b)for a stay whenever possible.Moreover,DOC the FEIS,and comments received during (suspension)of the effectiveness of this financial assistance must be awarded scoping and the 60-day public comment decision during the time that your through a merit-based review and period on the Draft Environmental appeal is being reviewed by the Board, selection process.Notices announcing Impact Statement. the petition for a stay must accompany the availability of Federal funds for new Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices 7697 awards for each DOC competitive obtaining certification from lower tier applicants who have been recipients of financial assistance program will be applicants/bidders. financial assistance from the DOC for published in the Federal Register and 3.Pre-Award Screening of Applicant's three or more consecutive years without posted on http://www.grants.gov by the and Recipient's Management any adverse programmatic or audit sponsoring operating unit in the Capabilities,Financial Condition,and findings;and(3)applicants that are uniform format for an announcement of Present Responsibility.It is the policy of units of a State or local government or Federal Funding Opportunity(FFO) the DOC to make awards to applicants that are accredited colleges and mandated by the Office of Management and recipients that are competently universities. and Budget(OMB).These managed,responsible,financially (e)Individual Background Screening. announcements will reference or capable and committed to achieving the Unless an exemption applies,an include the DOC Pre-Award Notification objectives of the award(s)they receive. individual background screening will be Requirements identified in sections A Therefore,pre-award screening may performed by the OIG on key and B of this notice,and the program- include,but is not limited to,the individuals of organizational units specific information identified in following reviews: section C of this notice,and will follow (a)Past Performance.Unsatisfactory associated with the application at the the uniform format for announcements performance under prior Federal awards beginning of the award and at three year of funding opportunities as identified in may result in an application not being intervals thereafter for the life of the section D. considered for funding. award.The exemptions are:the This announcement provides notice (b)Credit Checks.A credit check will proposed award amount is$100,000 or of the DOC Pre-Award Notification be performed on individuals,for-profit, less;applicants are accredited colleges Requirements that apply to all DOC- and non-profit organizations. and universities;applicants are units of sponsored grant and cooperative (c)Delinquent Federal Debts.No a State or local government;applicants agreement programs and that may award of Federal funds shall be made to are economic development districts supplement those program an applicant that has an outstanding designated by EDA,including those announcements which make reference delinquent Federal debt until: entities whose designations are pending, to this notice.Some of the DOC general (1)The delinquent account is paid in and councils of governments;or the key provisions published herein contain,by full; individual(s)is/are elected officials of reference or substance,a summary of (2)A negotiated repayment schedule State and local governments who are the pertinent statutes or regulations is established and at least one payment serving in capacities other than their published in the U.S.Code(U.S.C.), is received;or elected capacities when applying for Federal Register,or Code of Federal (3)Other arrangements satisfactory to assistance.In addition,if there is a Regulations (CFR),or requirements the DOC are made. change in the status of the organization provided in Executive Orders,OMB Pursuant to 31 U.S.C. 3720B,unless and/or key individuals,or the program Circulars(circulars),or Assurances waived,the DOC is not permitted to officer,OIG,or Grants Officer believes (Forms SF-424B and SF-424D).This extend financial assistance in the form there is good reason to conduct a review notice does not intend to be a of a loan,loan guarantee,or loan sooner,a background screening may be derogation of,or amend,any statute, insurance to any person delinquent on requested more frequently.Individual regulation,Executive Order,circular,or a nontax debt owed to a Federal agency. background screenings are conducted to Standard Form. This prohibition does not apply to reveal if any key individuals associated Each individual award notice will disaster loans. with the applicant have been convicted complete and include the relevant Pursuant to 28 U.S.C. 3201(e),a of or are presently facing criminal analyses pursuant to the requirements debtor who has a judgment lien against charges e. fraud,theft,perjury),Executive Order 12866,Executive the debtor's property for a debt to the r (matters P 1 ry)>or Order 13132,the Administrative United States shall not be eligible to other matters which significantly reflect Procedure Act,the Regulatory receive any grant or loan which is made, on the applicant's business integrity, Flexibility Act,and the Paperwork insured,guaranteed,or financed responsibility,or financial integrity.If Reduction Act,as applicable. directly or indirectly by the United any of the conditions listed below in A.The following pre-award notice States or to receive funds directly from paragraphs(1),(2),or(3)occur,then the provisions will apply to all applicants the Federal Government in any program, mor reserves the right to take one or for and recipients of DOC grants and except funds to which the debtor is more of the following actions:consider cooperative agreements: entitled as beneficiary,until the suspension/termination of an award 1.Federal Policies and Procedures. judgment is paid in full or otherwise immediately for cause;require the Applicants,recipients and subrecipients satisfied.The DOC sponsoring operating removal of any key individual from are subject to all Federal laws and units may promulgate regulations to association with management of and/or Federal and DOC policies,regulations, allow for waiver of this restriction on implementation of the award and and procedures applicable to Federal eligibility for such grants and require Grants Officer approval of financial assistance. cooperative agreements. personnel replacements;require the 2.Debarment,Suspension,Drug-Free (d)Financial Pre-Award Screening. recipient to make other changes as Workplace,and Lobbying Provisions. The DOC's Office of Inspector General appropriate;and/or designate the All applicants must comply with the (OIG)performs pre-award screening recipient as high risk and amend the requirements of subpart C of 2 CFR part procedures to review an applicant's award to assign special award 1326,"Nonprocurement Debarment and credit rating and related financial conditions,as appropriate,including Suspension," 15 CFR part 29, information,the status of previous making changes with respect to the "Governmentwide Requirements for Federal audit findings and method of payment and/or financial Drug-Free Workplace(Financial recommendations for the applicant,and reporting requirements. Assistance)"(November 26,2003,68 FR other relevant data.The following three (1)A key individual fails to submit 66534),and 15 CFR part 28,"New categories of applicants are exempt from the required Form CD-346,Applicant Restrictions on Lobbying,"including this review:(1)Applicants for awards in for Funding Assistance within 30 days the submission of required forms and amounts of$100,000 or less;(2) of receipt of the award; 7698 Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices (2)A key individual makes a false 7.False Statements.A false statement that a project may have on the statement or omits a material fact on the on an application is grounds for denial environment. Form CD-346;or or termination of an award,and/or (a)The National Environmental (3)The individual background possible punishment by a fine or Policy Act of 1969(42 U.S.C.4321 et screening reveals significant adverse imprisonment as provided in 18 U.S.C. seq.).Recipients of Federal assistance findings that reflect on the business 1001. are required to identify to the awarding integrity,responsibility,or financial 8.Application Forms.Unless the agency any impact an award will have integrity of the recipient and/or key individual programs specify differently on the quality of the human individual. in their Federal Register notice of environment,and assist the agency to (f)List of Parties Excluded from availability of funding and/or in the comply with the National Procurement and Nonprocurement Federal Funding Opportunity Environmental Policy Act,when the Programs.The Excluded Parties Listing announcement,the following forms, award activities remain subject to System(EPLS)maintained by the family of forms,and/or certifications are Federal authority and control. General Services Administration(GSA) required,as applicable,for DOC grants Applicants for assistance may be (found at http://www.epls.gov)that lists and cooperative agreements:OMB required to prepare environmental parties excluded from Federal Standard Forms(SF)SF-424, impact information as part of a procurement and nonprocurement Application for Federal Assistance;SF– proposal. SF– programs will be checked to assure that 424A,Budget Information—Non- an (b)Floodplain Management, applicant is not debarred or Construction Programs;SF-424B, Executive Order 11988 and,Protection suspended on a government-wide basis Assurances—Non-Construction of Wetlands,Executive Order 11990, from receiving financial assistance. programs;SF-424C,Budget May 24, 1977.Recipients must identify (g)Pre-Award Accounting System Information—Construction Programs; proposed actions located in Federally Surveys.The Grants Office,in SF-424D,Assurances—Construction defined floodplains and wetlands to cooperation with the OIG when Programs;SF-424 Family of Forms for enable the agency to make a appropriate,may require a pre-award Research and Related Programs;SF-424 determination whether there is an survey of the applicant's financial Short Organizational Family;SF-424 alternative to minimize any potential management system in cases where the Individual Form Family;and SF-424 harm. recommended applicant has had no y' riot Federal support,the operating unit Mandatory Family.In addition, (c)Clean Air Act,Clean Water Act, has reason to question whether the Department( )Forms CD– and Executive Order 11738.Recipients Commerce De artment CD must comply with the provisions of the financial management system meets 346,Applicant for Funding Assistance; g y CD-511,Certification Regarding Clean Air Act(42 U.S.C. 7401 et seq.), Federal financial management f Clean Water Act(33 U.S.C. §§1251 et standards,or the applicant is being Lobbying;CD-512, Certification considered for a high-risk designation. Regarding Lobbying—Lower-Tier seq.),and Executive Order 11738. g g Covered Transactions;and SF–LLL, Recipients shall not use a facility that 4.No Obligation for Future Funding. EPA has placed on the Excluded Parties If an application is selected for funding, Disclosure of Lobbying Activities,will List System(EPLS)(http:// the DOC has no obligation to provide be used as appropriate. www.epls.gov)in performing any award any additional future funding in 9.Environmental Requirements. that is nonexempt under Subpart J of 2 connection with that award.Any Environmental impacts must be CFR part 1532. amendment of an award to increase considered by Federal decision makers (d)The Flood Disaster Protection Act funding or to extend the period of in their decisions whether or not to(1) of 1973 (42 U.S.C.4002 et seq.).Flood performance is at the total discretion of approve a proposal for Federal insurance,when available,is required the DOC. assistance; (2)approve the proposal for Federally assisted construction or 5.Pre-Award Activities.If an with mitigation;or(3)approve a acquisition in flood-prone areas. applicant incurs any costs prior to different proposal/grant having less (e)The Endangered Species Act of receiving an award,it does so solely at adverse environmental impacts.Federal 1973,as amended(16 U.S.C. 1531 et its own risk of not being reimbursed by environmental laws require that the seq.).Recipients must identify any the Government.Notwithstanding any funding agency initiate a planning impact or activities that may involve a verbal or written assurance that may process with an early consideration of threatened or endangered species. have been received,there is no potential environmental impacts that Federal agencies have the responsibility obligation on the part of DOC to cover projects funded with Federal assistance for ensuring that a protected species or pre-award costs unless approved by the may have on the environment. habitat does not incur adverse effects Grants Officer as part of the terms when Applicants,recipients and subrecipients from actions under Federal assistance the award is made,or as authorized for must comply with all environmental awards,and for conducting the required awards that support research by 15 CFR standards,to include those prescribed reviews under the Endangered Species 14.25(e)(4). under the following statutes and Act,as applicable. 6.Freedom of Information Act(FOIA) Executive Orders,and shall identify to (f)The Coastal Zone Management Act, Disclosure.The FOIA(5 U.S.C. 552 and the awarding agency any impact the as amended(16 U.S.C. 1451 et seq.). DOC regulations at 15 CFR part 4)sets award may have on the environment. Funded projects must be consistent with forth the process and procedure by The failure to do so shall be grounds for a coastal state's approved management which the DOC follows to make not selecting an application.In some program for the coastal zone. requested material,information,and cases,if additional information is (g)The Coastal Barriers Resources Act records publicly available.Unless required after an application is selected, (16 U.S.C. 3501 et seq.).Restrictions are prohibited by law and to the extent funds can be withheld by the Grants placed on Federal funding for actions required under the FOIA,contents of Officer under a special award condition within a Coastal Barrier System. applications,proposals,and other requiring the recipient to submit (h)The Wild and Scenic Rivers Act, information submitted by applicants additional environmental compliance as amended(16 U.S.C. 1271 et seq.). may be released in response to FOIA information sufficient to enable the DOC This Act applies to awards that may requests. to make an assessment on any impacts affect existing or proposed components Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices 7699 of the National Wild and Scenic Rivers principles,which are incorporated by shared allowable costs.If actual system. reference in 15 CFR parts 14 and 24,are allowable costs are less than the total (i)The Safe Drinking Water Act of included in the DOC's grants and approved budget,the Federal and non- 1974,as amended(42 U.S.C. 300f—j). cooperative agreements:OMB Circular Federal cost shares shall be calculated This Act precludes Federal assistance A-21 (2 CFR part 220),"Cost Principles by applying the approved Federal and for any project that the EPA determines for Educational Institutions";OMB non-Federal cost share ratios to actual may contaminate a sole source aquifer Circular A-87(2 CFR part 225),"Cost allowable costs.If actual allowable costs so as to threaten public health. Principles for State,Local and Indian are greater than the total approved (j)The Resource Conservation and Tribal Governments";OMB Circular A— budget,the Federal share will not Recovery Act of 1976,as amended(42 122 (2 CFR part 230), "Cost Principles exceed the total Federal dollar amount U.S.C.6901 et seq.).This act regulates for Nonprofit Organizations";and authorized by the award. the generation,transportation, Federal Acquisition Regulation subpart (b)The non-Federal share,whether in treatment,and disposal of hazardous 31.2,"Contracts with Commercial cash or in-kind,will be expected to be wastes,and also provides that recipients Organizations,"codified at 48 CFR 31.2. paid out at the same general rate as the of Federal funds give preference in their Applicable administrative requirements Federal share.Exceptions to this procurement programs to the purchase and cost principles are identified in requirement may be granted by the of recycled products pursuant to EPA each award and are incorporated by Grants Officer based on sufficient guidelines. reference into the award.Expenditures documentation demonstrating (k)The Comprehensive for any financial assistance award must previously determined plans for or later Environmental Response, be necessary to carry out the authorized commitment of cash or in-kind Compensation,and Liability Act of project and be consistent with the contributions.In any case,recipients 1980,as amended,the Superfund applicable cost principles. must meet the cost share commitment Amendments and Reauthorization Act 2.Award Payments.Advances will be over the life of the award. of 1986,and the Community limited to the minimum amounts 4.Budget Changes and Transfers Environmental Response Facilitation necessary to meet immediate Among Cost Categories.When the terms Act of 1992,as amended(42 U.S.C. 9601 disbursement needs,but in no case of an award allow the recipient to et seq.).These requirements address should advances exceed the amount of transfer funds among approved direct responsibilities for actual or threatened cash required for a 30-day period.Any cost categories,the transfer authority hazardous substance releases and advanced funds that are not disbursed does not authorize the recipient to environmental cleanup.There are also in a timely manner must be returned create new budget categories within an requirements regarding reporting and promptly to the DOC.Certain bureaus approved budget unless the Grants community involvement to ensure within the DOC use the Department of Officer has provided prior approval.In disclosure of the release or disposal of Treasury's Automated Standard addition,the recipient will not be regulated substances and cleanup of Application for Payment(ASAP) authorized at any time to transfer hazards. system.In order to receive payments amounts budgeted for direct costs to the (1)Environmental Justice in Minority under ASAP,recipients will be required indirect costs line item or vice versa, Populations and Low Income to enroll electronically in the ASAP without written prior approval of the Populations,Executive Order 12898, system by providing their Federal Grants Officer. February 11,1994.This Order identifies Awarding Agency with pertinent 5.Indirect Costs. and addresses adverse human health or information to begin the enrollment (a)Indirect costs will not be allowable environmental effects of programs, process,which allows them to use the charges against an award unless policies and activities on low income on-line and Voice Response System specifically included as a line item in and minority populations. (VRS)method of withdrawing funds the approved budget incorporated into 10.Limitation of Liability.In no event from their ASAP established accounts.It the award. (The term"indirect cost"has will the Department of Commerce be is the recipient's responsibility to been replaced with the term"facilities responsible for proposal preparation ensure that its contact information is and administrative costs"under OMB costs if a program fails to receive correct.The funding agency must be Circular A-21 (2 CFR part 220),"Cost funding or is cancelled because of other provided a Point of Contact name, Principles for Educational agency priorities.The publication of an mailing address,e-mail address, Institutions.") announcement of funding availability telephone number,DUNS and TIN (b)Excess indirect costs may not be does not oblige the agency to award any numbers to commence the enrollment used to offset unallowable direct costs. specific project or to obligate any process.In order to be able to complete (c)If the recipient has not previously available funds. the enrollment process,the recipient established an indirect cost rate with a B.The following general provisions will need to identify a Head of Federal agency,the negotiation and will apply to all DOC grant and Organization,an Authorizing Official, approval of a rate will be subject to the cooperative agreement awards: and a Financial Officer.It is very procedures in the applicable cost 1.Administrative Requirements and important that the recipient's banking principles and the following Cost Principles.The uniform data be linked to the funding agency's subparagraphs: administrative requirements for all DOC Agency Location Code in order to (1)a.State,local,and Indian Tribal grants and cooperative agreements are ensure proper payment under an award. Governments;Educational Institutions; codified at 15 CFR part 14,"Uniform For additional information on this and Non-Profit Organizations(Non- Administrative Requirements for Grants requirement,prospective applicants Commercial Organizations). and Agreements with Institutions of should contact their Federal Awarding For those organizations for which the Higher Education,Hospitals,Other Non- Agency. DOC is cognizant or has oversight,the Profit,and Commercial Organizations," 3.Federal and Non-Federal Cost DOC or its designee will either negotiate and at 15 CFR part 24,"Uniform Sharing. a fixed rate with carryforward Administrative Requirements for Grants (a)Awards that include Federal and provisions or,in some instances,limit and Agreements to State and Local non-Federal cost sharing will its review to evaluating the procedures Governments."The following list of cost incorporate a budget consisting of described in the recipient's cost 7700 Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices allocation methodology plan.Indirect agreement or a copy of the transmittal reimbursement only,or the imposition cost rates and cost allocation letter submitted to the cognizant or of other special award conditions, methodology reviews are subject to oversight Federal agency requesting a suspension of any DOC active awards, future audits to determine actual negotiated rate agreement. and termination of any DOC active indirect costs. (5)If the recipient fails to submit the awards. b.Commercial Organizations. required documentation to the DOC 9.Prohibition Against Assignment by For commercial organizations, within 90 days of the award start date, the Recipient.Notwithstanding any "cognizant federal agency"is defined as the recipient may be precluded from other provision of an award,recipients the agency that provides the largest recovering any indirect costs under the may not transfer,pledge,mortgage,or dollar amount of negotiated contracts, award.If the DOC,oversight,or otherwise assign an award,or any including options.If the only federal cognizant Federal agency determines interest therein,or any claim arising funds received by a commercial there is a finding of good cause to thereunder,to any party or parties, organization are DOC award funds,then excuse the recipient's delay in banks,trust companies,or other the DOC becomes the cognizant federal submitting the documentation,an financing or financial institutions agency for the purpose of indirect cost extension of the 90-day due date may be without the express written approval of negotiations.For those organizations for approved by the Grants Officer. the Grants Officer. which the DOC is cognizant,DOC or its (6)Regardless of any approved 10.Non-Discrimination designee will negotiate a fixed rate with indirect cost rate applicable to the Requirements.There are several Federal carry forward provisions for the award,the maximum dollar amount of statutes,regulations,Executive Orders, recipient."Fixed rate"means an allocable indirect costs for which the and policies relating to indirect cost rate which has the same DOC will reimburse the recipient shall nondiscrimination.No person in the characteristics as a pre-determined rate, be the lesser of the line item amount for United States shall,on the grounds of except that the difference between the the Federal share of indirect costs race,color,national origin,handicap, estimated costs and the actual costs of contained in the approved budget of the religion,age,or sex,be excluded from the period covered by the rate is carried award,or the Federal share of the total participation in,be denied the benefits forward as an adjustment to the rate allocable indirect costs of the award of,or be subject to discrimination under computation of the subsequent period. based on the indirect cost rate approved any program or activity receiving DOC or its designee will negotiate by an oversight or cognizant Federal Federal financial assistance.These indirect cost rates using the cost agency and current at the time the cost requirements include but are not limited principles found in 48 CFR part 31, was incurred,provided the rate is to: "Contract Cost Principles and approved on or before the award end (a)Title VI of the Civil Rights Act of Procedures."For guidance on how to date. 1964(42 U.S.C. 2000d et seq.)and the 6.Tax Refunds.Refunds of FICA/ DOC's implementing regulations put an indirect cost plan together go to: http://www.dol.gov/oasm/programs/ FUTA taxes received by a recipient published at 15 CFR part 8 prohibiting boc/costdeterminationguide/main.htm. during or after an award period must be discrimination on the grounds of race, (2)Within 90 days of the award start refunded or credited to the DOC where color,or national origin under programs date,the recipient shall submit to the the benefits were financed with Federal or activities receiving Federal financial address listed below documentation funds under the award.Recipients are assistance; (indirect cost proposal,cost allocation required to contact the Grants Officer (b)Title IX of the Education plan,etc.)necessary to perform the immediately upon receipt of these Amendments of 1972 (20 U.S.C. 1681 et review.The recipient shall provide the refunds.Recipients are required to seq.)and the DOC's implementing Grants Officer with a copy of the refund portions of FICA/FUTA taxes regulations at 15 CFR part 8a transmittal letter, determined to belong to the Federal prohibiting discrimination on the basis Government,including refunds received of sex under Federally assisted Office of Acquisition Management,U.S. after the award end date. education programs or activities; Department of Commerce,14th Street 7.Other Federal Awards with Similar (c)Section 504 of the Rehabilitation and Constitution Avenue,NW.,Room Programmatic Activities.Recipients will Act of 1973,as amended(29 U.S.C. 794) 6054,Washington,DC 20230. be required to provide written and the DOC's implementing (3)The recipient can use the fixed notification to the Federal Program regulations published at 15 CFR part 8b rate proposed in the indirect cost plan Officer and the Grants Officer in the prohibiting discrimination on the basis until such time as the DOC provides a event that,subsequent to receipt of the of handicap under any program or response to the submitted plan.Actual DOC award,other financial assistance is activity receiving or benefiting from indirect costs must be calculated received to support or fund any portion Federal assistance; annually and adjustments made through of the scope of work incorporated into (d)The Age Discrimination Act of the carryforward provision used in the DOC award.The DOC will not pay 1975,as amended(42 U.S.C.6101 et calculating next year's rate.This for costs that are funded by other seq.)and the DOC's implementing calculation of actual indirect costs and sources. regulations published at 15 CFR part 20 the carryforward provision is subject to 8.Non-Compliance With Award prohibiting discrimination on the basis audit.Indirect cost rate proposals must Provisions.Failure to comply with any of age in programs or activities receiving be submitted annually.Organizations or all of the provisions of an award,or Federal financial assistance; that have previously established the requirements of this notice,may (e)The Americans with Disabilities indirect cost rates must submit a new have a negative impact on future Act of 1990(42 U.S.C. 12101 et seq.) indirect cost proposal to the cognizant funding by the DOC and may be prohibiting discrimination on the basis agency within six months after the close considered grounds for any or all of the of disability under programs,activities, of each recipient's fiscal year. following enforcement actions: and services provided or made available (4)When the DOC is not the oversight Establishment of an account receivable, by state and local governments or or cognizant Federal agency,the withholding payments under any DOC instrumentalities or agencies thereto,as recipient shall provide the Grants awards to the recipient,changing the well as public or private entities that Officer with a copy of a negotiated rate method of payment from advance to provide public transportation; Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices 7701 (f)Title VIII of the Civil Rights Act of the project expiration date including the (a)Require the recipient to correct the 1968,as amended(42 U.S.C. 3601 et close-out period for the award. conditions. seq.),relating to nondiscrimination in (c)For 4-,or 5-year awards,an audit (b)Consider the recipient to be"high the sale,rental or financing of housing; is required within 90 days after the end risk"and unilaterally impose special (g)Parts II and III of Executive Order of the first year and third year,and award conditions to protect the Federal 11246,as amended by Executive Orders within 90 days from the project Government's interest. 11375 and 12086 requiring Federally expiration date including the close-out (c)Suspend or terminate an active assisted construction contracts to period for the award. award.The recipient will be afforded include the nondiscrimination Some DOC programs have specific due process while effecting such provisions of sections 202 and 203 of audit guidelines that will be actions. that Executive Order and the incorporated into the award.When DOC (d)Require the removal of personnel Department of Labor's regulations at 41 does not have a program-specific audit from association with the management CFR 60-1.4(b)implementing Executive guide available for the program,the of and/or implementation of the project auditor will follow the requirements for Order 11246; and require Grants Officer approval of (h)Executive Order 13166(August 11, a program specific audit as described in Personnel replacements. 2000),"Improving Access to Services OMB Circular A-133, .235.The 16.Competition and Codes of for Persons With Limited English — Conduct. Proficiency,"and DOC policy guidance Recipient may include a line item in the (a)Pursuant to the certification in issued on March 24,2003 (68 FR 14180) budget for the cost of the audit. Form SF-424B,paragraph 3,recipients to Federal financial assistance recipients 13.Policies and Procedures for P must maintain written standards of on the Title VI prohibition against Resolution of Audit-Related Debts.The conduct to establish safeguards to DOC has established policies and national origin discrimination affecting procedures for handling the resolution prohibit employees from using their Limited English Proficient(LEP) positions for a purpose that constitutes and reconsideration of financial persons;and or presents the appearance of a personal (i)In recognition of the assistance audits which have resulted or organizational conflict of interest,or constitutionally-protected interest of in,or may result in,the establishment personal gain in the administration of religious organizations in making of a debt(account receivable)for this award and any subawards. religiously-motivated employment financial assistance awards.These (b)Recipients must maintain written decisions,Title VII of the Civil Rights policies and procedures are contained standards of conduct governing the Act of 1964,42 U.S.C.2000e et seq., in the Federal Register notice dated performance of their employees engaged which expressly exempts religious January 27, 1989. See 54 FR 4053.The in the award and administration of organizations from the prohibition policies and procedures also are subawards.No employee,officer,or against discrimination on the basis of provided in more detail in the agent shall participate in the selection, religion. See 42 U.S.C. 2000e-1(a). Department of Commerce Financial award,or administration of a subaward 11.Audits of Organizations Covered Assistance Standard Terms and supported by Federal funds if such by OMB Circular A-133,"Audits of Conditions. participation would cause a real or States,Local Governments,and Non- 14.Debts.Any debts determined to be apparent conflict of interest.Such a Profit Organizations"and the related owed the Federal Government shall be conflict would arise when the Compliance Supplement.Recipients paid promptly by the recipient.In employee,officer,or agent,any member that are subject to OMB Circular A-133, accordance with 15 CFR 21.4,a debt of his or her immediate family,his or and that expend$500,000 or more in will be considered delinquent if it is not her partner,or an organization in which Federal awards in a fiscal year shall paid within 15 days of the due date,or he/she serves as an officer or which have an audit conducted for that year in if there is no due date,within 30 days employs or is about to employ any of accordance with the requirements of of the billing date.Failure to pay a debt the parties mentioned in this section, OMB Circular A-133,issued pursuant by the due date,or if there is no due has a financial or other interest in the to the Single Audit Act of 1984(Pub.L. date,within 30 days of the billing date, organization selected or to be selected No. 98-502),as amended by the Single shall result in the imposition of late for a subaward.The officers,employees, Audit Act Amendments of 1996 (Pub.L. payment charges.In addition,failure to and agents of the recipient may not No. 104-156). pay the debt or establish a repayment solicit or accept anything of monetary 12.Unless otherwise specified in the agreement by the due date,or if there is value from subrecipients.However,the terms and conditions of the award,in no due date,within 30 days of the recipient may set standards for accordance with 15 CFR 14.26(c)and billing date,will also result in the situations in which the financial interest (d),for-profit hospitals,commercial referral of the debt for collection action is not substantial or the gift is an entities,and other organizations not and may result in the DOC taking unsolicited item of nominal value.The required to follow the audit provisions further action as specified in the terms standards of conduct must provide for of OMB Circular A-133 shall have an of the award.Funds for payment of a disciplinary actions to be applied for audit performed when the federal share debt must not come from other federally violations of such standards by officers, amount awarded is$500,000 or more sponsored programs.Verification that employees,or agents of a recipient. over the duration of the project period. other Federal funds have not been used (c)All subawards will be made in a An audit is required at least once every will be made,e.g.,during on-site visits manner to provide,to the maximum two years using the following schedule and audits. extent practicable,open and free for audit report submission. 15.Post-Award Discovery of Adverse competition.Recipients must be alert to (a)For awards less than 24 months,an Information.After an award is made,if organizational conflicts of interest as audit is required within 90 days from adverse information on a recipient or well as other practices among the project expiration date,including any key individual associated with a subrecipients that may restrict or the close-out period for the award. recipient is discovered which reflects eliminate competition.In order to (b)For 2-,or 3-year awards,an audit significantly and adversely on the ensure objective subrecipient is required within 90 days after the end recipient's responsibility,the Grants performance and eliminate unfair of the first year and within 90 days from Officer may take the following actions: competitive advantage,subrecipients 7702 Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices that develop or draft work requirements, as otherwise required by law.The its copyright in a particular work when statements of work,or requests for specific rights and responsibilities are the DOC is undertaking the primary proposals will be excluded from described in more detail in 37 CFR part dissemination of the work.Ownership competing for such subawards. 401 and in particular,in the standard of copyright by the Federal Government (d)For purposes of the award,a patent rights clause in 37 CFR 401.14, through assignment is permitted by 17 financial interest may include which is incorporated by reference into U.S.C. 105. employment,stock ownership,a awards.Recipients of DOC financial 22.Seat Belt Use.Pursuant to creditor or debtor relationship,or assistance awards are required to submit Executive Order 13043,recipients shall prospective employment with an their disclosures and elections seek to encourage employees and applicant.An appearance of impairment electronically using the Interagency contractors to enforce on-the-job seat of objectivity could result from an Edison extramural invention reporting belt policies and programs when organizational conflict where,because system(iEdison)at http:// operating recipient/company-owned, of other activities or relationships with www.iedison.gov.Recipients may obtain rented or personally owned vehicles. other persons or entities,a person is a waiver of this electronic submission 23.Research Involving Human unable or potentially unable to act in an requirement by providing to the DOC Subjects.All proposed research impartial manner.It also could result compelling reasons for allowing the involving human subjects must be from non-financial gain to the submission of paper copies of reports conducted in accordance with 15 CFR individual,such as benefit to reputation related to inventions. part 27,"Protection of Human Subject." or prestige in a professional field. (b)Patent Notification Procedures. No research involving human subjects is 17.Minority Owned Business Pursuant to Executive Order 12889,the permitted under any DOC financial Enterprise.The DOC encourages DOC is required to notify the owner of assistance award unless expressly recipients to utilize minority and any valid patent covering technology authorized by the Grants Officer. women-owned firms and enterprises in whenever the DOC or its financial 24.Federal Employee Expenses. contracts under financial assistance assistance recipients,without making a Federal agencies are generally barred awards.The Minority Business patent search,knows(or has from accepting funds from a recipient to Development Agency can assist demonstrable reasonable grounds to pay transportation,travel,or other recipients in matching qualified know)that technology covered by a expenses for any Federal employee minority owned enterprises with valid United States patent has been or unless specifically approved in the contract opportunities. will be used without a license from the terms of the award.Use of award funds 18.Subaward and/or Contract to a owner.To ensure proper notification,if (Federal or non-Federal)or the Federal Agency.Recipients, the recipient uses or has used patented recipient's provision of in-kind goods or subrecipients,contractors,and/or technology under this award without a services for the purposes of subcontractors may not sub-grant or license or permission from the owner, transportation,travel,or any other sub-contract any part of an approved the recipient will be required to notify expenses for any Federal employee,may project to any Federal department, the Grants Officer.This notice does not raise appropriation augmentation issues. agency,instrumentality,or employee necessarily mean that the government In addition,DOC policy prohibits the thereof,without the prior written authorizes and consents to any acceptance of gifts,including travel approval of the Grants Officer. copyright or patent infringement payments for Federal employees,from 19.Foreign Travel.Recipients must occurring under the financial assistance. recipients or applicants regardless of the comply with the provisions of the Fly (c)Data,Databases,and Software.The source. America Act,49 U.S.C.40118.The Fly rights to any work produced or 25.Preservation of Open Competition America Act requires that Federal purchased under a DOC financial and Government Neutrality Towards travelers and others performing U.S. assistance award are determined by 15 Government Contractors'Labor Government-financed foreign air travel CFR 14.36 or 24.34,as applicable.Such Relations on Federal and Federally must use U.S.flag carriers,to the extent works may include data,databases or Funded Construction Projects.Pursuant that service by such carriers is available. software.The recipient owns any work to Executive Order 13202,"Preservation Foreign air carriers may be used only in produced or purchased under a DOC of Open Competition and Government specific instances,such as when a U.S. financial assistance award subject to Neutrality Towards Government flag air carrier is unavailable,or use of DOC's right to obtain,reproduce, Contractors'Labor Relations on Federal U.S.flag carrier service will not publish or otherwise use the work or and Federally Funded Construction accomplish the agency's mission.The authorize others to receive,reproduce, Projects,"as amended by Executive implementing Federal Travel publish or otherwise use the data for Order 13208,unless the project is Regulations are found at 41 CFR 301— Federal Government purposes. exempted under section 5(c)of the 10.131 through 301-10.143. (d)Copyright.The recipient may Order,bid specifications,project 20.Purchase of American-Made copyright any work produced under a agreements,or other controlling Equipment and Products.Recipients are DOC financial assistance award subject documents for construction contracts hereby notified that they are to the DOC's royalty-free nonexclusive awarded by recipients of grants or encouraged,to the greatest extent and irrevocable right to reproduce, cooperative agreements,or those of any practicable,to purchase American-made publish or otherwise use the work or construction manager acting on their equipment and products with funding authorize others to do so for Federal behalf,shall not:(1)Include any provided under DOC financial Government purposes.Works jointly requirement or prohibition on bidders, assistance awards. authored by the DOC and recipient offerors,contractors,or subcontractors 21.Intellectual Property Rights. employees may be copyrighted but only about entering into or adhering to (a)Inventions.The rights to any the part authored by the recipient is agreements with one or more labor invention made by a recipient under a protected because,under 17 U.S.C. 105, organizations on the same or related DOC financial assistance award are works produced by Government construction project(s);or(2)otherwise determined by the Bayh-Dole Act,as employees are not copyrightable in the discriminate against bidders,offerors, amended(Pub.L.No. 96-517),and United States.On occasion,the DOC contractors,or subcontractors for codified at 35 U.S.C.200 et seq.,except may ask the recipient to transfer to DOC becoming or refusing to become or Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices 7703 remain signatories or otherwise allegation.Generally,the recipient 35.Care and Use of Live Vertebrate adhering to agreements with one or organization shall investigate the Animals.Recipients must comply with more labor organizations,on the same or allegation and submit its findings to the the Laboratory Animal Welfare Act of other related construction project(s). Grants Officer.The DOC may accept the 1966 (Pub.L.No.89-544),as amended 26.Minority Serving Institutions recipient's findings or proceed with its (7 U.S.C. 2131 et seq.)(animal (MSIs)Initiative.Pursuant to Executive own investigation.The Grants Officer acquisition,transport,care,handling, Orders 13256, 13230,and 13270,the shall inform the recipient of the DOC's and use in projects)and implementing DOC is strongly committed to final determination. regulations,9 CFR parts 1,2,and 3;the broadening the participation of MSIs in 29.Intergovernmental Personnel Act Endangered Species Act(16 U.S.C. 1531 its financial assistance award programs. of 1970(42 U.S.C.4728-4763). et seq.);Marine Mammal Protection Act The DOC's goals include achieving full Recipients must comply with this Act (16 U.S.C. 1361 et seq.)(taking participation of MSIs in order to relating to prescribed standards for possession,transport,purchase,sale, advance the development of human merit systems for programs funded export or import of wildlife and plants); potential,strengthen the Nation's under one of the 19 statutes or The Nonindigenous Aquatic Nuisance capacity to provide high-quality regulations specified in Appendix A of Prevention and Control Act(16 U.S.C. education,and increase opportunities the Office of Personnel Management 4701 et seq.)(ensure preventive for MSIs to participate in and benefit Standards for a Merit System of measures are taken or that probable from Federal financial assistance Personnel Administration(5 CFR part harm of using species is minimal if programs.The DOC encourages all 900,Subpart F). there is an escape or release);and all applicants and recipients to include 30.Uniform Relocation Assistance other applicable statutes pertaining to meaningful participation of MSIs. and Real Property Acquisition Policies the care,handling,and treatment of Institutions eligible to be considered Act of 1970,as amended(42 U.S.C.4601 warm blooded animals held for MSIs are listed on the Department of et seq.)and the DOC's implementing research,teaching,or other activities Education's Web site at:http:// regulations issued at 15 CFR part 11. supported by Federal financial www.ed.gov/offices/OCR/ These provide for fair and equitable assistance.No research involving minorityinst.html. treatment of persons displaced or whose vertebrate animals is permitted under 27.Access to Records.The Inspector property is acquired as a result of any DOC financial assistance award General of the DOC,or any of his or her Federal or Federally-assisted programs. unless authorized by the Grants Officer. duly authorized representatives,the These requirements apply to all 36.Publications,Videos,and Comptroller of the United States and,if interests in real property acquired for Acknowledgment of Sponsorship. appropriate,the State,shall have access project purposes regardless of Federal Publication of the results of a research to any pertinent books,documents, participation in purchases. project in appropriate professional papers and records of the parties to a 31.Historic Preservation.Recipients journals and production of videos or grant or cooperative agreement,whether must assist the DOC in assuring other media is encouraged as an written,printed,recorded,produced,or compliance with Section 106 of the important method of recording and reproduced by any electronic, National Historic Preservation Act of reporting scientific information.It is mechanical,magnetic or other process 1966,as amended,and the Advisory also a constructive means to expand or medium,in order to make audits, Council on Historic Preservation access to federally funded research.The inspections,excerpts,transcripts,or Guidelines(16 U.S.C.470 et seq.);the recipient is required to submit a copy to other examinations as authorized by Archaeological and Historic the funding agency and when releasing law.An audit of an award may be Preservation Act of 1974(16 U.S.C. information related to a funded project conducted at any time. 469a-1 et seq.);Protection and include a statement that the project or 28.Scientific or Research Misconduct. Enhancement of the Cultural effort undertaken was or is sponsored by Scientific or research misconduct refers Environment,Executive Order 11593; DOC.The recipient is also responsible to the fabrication,falsification,or Locating Federal Facilities on Historic for assuring that every publication of plagiarism in proposing,performing,or Properties in our Nation's Central Cities, material(including Internet sites and reviewing research,or in reporting Executive Order 13006;and Indian videos)based on or developed under an research results.It does not include Sacred Sites,Executive Order 13007. award,except scientific articles or honest errors or differences of opinion. 32.Lead-Based Paint Poisoning papers appearing in scientific,technical The recipient organization has the Prevention Act(42 U.S.C.4801 et seq.). or professional journals,contains the primary responsibility to investigate This Act prohibits the use of lead-based following disclaimer:"This [report/ allegations and provide reports to the paint in construction or rehabilitation of video]was prepared by[recipient name] Federal Government.Funds expended residential structures. under award[number]from [name of on an activity that is determined to be 33.Hatch Act(5 U.S.C. 1501-1508 operating unit],U.S.Department of invalid or unreliable because of and 7324-7328).This Act limits the Commerce.The statements,findings, scientific misconduct may result in a political activities of employees or conclusions,and recommendations are disallowance of costs for which the officers of State or local governments those of the author(s)and do not institution may be liable for repayment whose principal employment activities necessarily reflect the views of the to the awarding agency.The Office of are funded in whole or in part with [name of operating unit] or the U.S. Science and Technology Policy at the Federal funds. Department of Commerce." White House published in the Federal 34.Labor standards for Federally- 37.Homeland Security Presidential Register on December 6,2000,a final assisted construction subagreements Directive-12.If the performance of a policy that addressed research (wage guarantees).Recipients must grant award requires recipient misconduct.The policy was developed comply,as applicable,with the organization personnel to have by the National Science and Technology provisions of the Davis-Bacon Act(40 unsupervised physical access to a Council(65 FR 76260).The DOC U.S.C. 276a to 276a-7);the Copeland Federally controlled facility for more requires that any allegation be Act(40 U.S.C. 276c and 18 U.S.C.874); than 180 days or access to a Federal submitted to the Grants Officer,who and the Contract Work Hours and Safety information system,such personnel will also notify the OIG of such Standards Act(40 U.S.C. 327-333). must undergo the personal identity 7704 Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices verification credential process.In the not limited to,dual-use items,defense contain only the following program- case of foreign nationals,the DOC will articles and any related assistance, specific information:Summary conduct a check with U.S.Citizenship services,software or technical data as description of program; deadline date and Immigration Services' (USCIS) defined in the EAR and ITAR. for receipt of applications;addresses for Verification Division,a component of (d)The recipient shall control access submission of applications;information the Department of Homeland Security to all export-controlled information and contacts(including electronic access); (DHS),to ensure the individual is in a technology that it possesses or that the amount of funding available; lawful immigration status and that they comes into its possession in statutory authority;the applicable are eligible for employment within the performance of a financial assistance Catalog of Federal Domestic Assistance U.S.Any items or services delivered award,to ensure that access is (CFDA)number(s);eligibility under a financial assistance award shall restricted,or licensed,as required by requirements;cost-sharing or matching comply with the Department of applicable Federal laws,Executive requirements;Intergovernmental Commerce personal identity verification Orders,and/or regulations. Review requirements; evaluation criteria procedures that implement Homeland (e)Nothing in the terms of this used by the merit reviewers;selection Security Presidential Directive-12, financial assistance award is intended to procedures,including funding FIPS PUB 201,and OMB Memorandum change,supersede,or waive the priorities/selection factors/policy factors M-05-24.The recipient shall insert this requirements of applicable Federal laws, to be applied by the selecting official; clause in all subawards or contracts Executive Orders or regulations. and administrative and national policy the subaward recipient or (f)The recipient shall include this P y contractor is required to have physical clause,including this paragraph(f),in requirements. access to a Federally controlled facility all lower tier transactions(subawards, D.The DOC follows the uniform or access to a Federal information contracts,and subcontracts)under this format for an announcement of Federal system. financial assistance award that may Funding Opportunity(FFO)for 38.Compliance with Department of involve access to export-controlled discretionary grants and cooperative Commerce Bureau of Industry and information technology. agreements established by OMB in a Security Export Administration 39.The Trafficking Victims Protection policy letter published in the Federal Regulations Act of 2000 (22 U.S.C. 7104(g)),as Register(68 FR 37370,June 23,2003). (a)This clause applies to the extent amended,and the implementing These FFOs are available at http:// that a financial assistance award regulations at 2 CFR part 175.This Act www.grants.gov or from the information involves access to export-controlled authorizes termination of financial contact listed in the Federal Register information or technology. assistance provided to a private entity, notice.Applicants are strongly (b)In performing a financial without penalty to the Federal ed g y assistance award,the recipient may gain P y encouraged to apply through http:// P y g Government,if the recipient or www.grants.gov.It can take seven(7)to or to access to o export-controlled l linformation subrecipient engages in certain activities ten(10)business days to register with gy.The P related to trafficking in persons. htt //www. rants. ov,and registration responsible for compliance with all 40.The Federal Funding p' g g g applicable laws and regulations Accountability and Transparency Act of is should only once.Applicants regarding export-controlled information rhould i h tt the time needed to g g P 2006 (Pub.L.No. 109-282).This Act register with htt //www. rants. ov,and and technology,including deemed requires that the Federal government should registration begin the re process exports.The recipient shall establish establish a single searchable awards g g P and maintain effective export Web site by January 1,2008 to enable dell in advance of the application due compliance procedures at non-DOC the public to see where Federal funds date if they have never registered. financial a facilities assistance award.ed o At ace of the for grant and contract awards are being adequate time to submit the proposal spent.Subaward and subcontract data minimum,these export compliance will be required on the Web site by through http:/bmissirants.gov,as the procedures must include adequate January 1,2009.Funding data deadline for submission cannot be controls relating to physical,verbal, retroactive to October 1,2006 must be extended and there is the potential for visual and electronic access to export- reported by all Federal agencies and human or computer error during the controlled information and technology. their recipient and subrecipient electronic submission process. (c)Definitions organizations.Data elements will E.Universal Identifier:Applicants (1)Deemed Export.The Export include: should be aware that they will be Administration Regulations(EAR) • Name of entity receiving award; required to provide a Dun and define a deemed export as any release • Award amount; Bradstreet Data Universal Numbering of technology or source code subject to • Transaction type,funding agency, System number during the application the EAR to a foreign national,both in Catalog of Federal Domestic Assistance process.See the June 27,2003 Federal the United States and abroad.Such Number,and descriptive award title; Register notice(68 FR 38402)for release is"deemed"to be an export to • Location of:Entity,primary additional information.Organizations the home country of the foreign location of performance(City/State/ national. 15 CFR 734.2(b)(2)(ii). Congressional District/Country); can aecnvt a DUNS number fr at a cost g try);and by calling the dedicated toll-free Duns (2)Export-controlled information and • Unique identifier of entity. number request line at 1-866-705-5711 technology.Export-controlled The data will be required within 30 or by accessing the Grants.gov Web site information and technology subject to days of an award.The DOC will be at:http://www.grants.gov. the EAR(15 CFR 730-774), implementing this Act,which will implemented by the DOC's Bureau of require recipients and subrecipients to Executive Order 12866 Industry and Security,or the report the required data. International Traffic In Arms C.The Federal Register notice This notice has been determined to be Regulations(ITAR)(22 CFR 120-130), announcing the availability of Federal "not significant"for purposes of implemented by the Department of funds for each DOC competitive Executive Order 12866,"Regulatory State,respectively.This includes,but is financial assistance program will Planning and Review." Federal Register/Vol. 73, No. 28/Monday, February 11, 2008/Notices 7705 Administrative Procedure Act and programs-international,Reporting and Russian Federation,59 FR 15373(April Regulatory Flexibility Act recordkeeping requirements. 1, 1994);Amendments to the Agreement Because notice and comment are not Al Sligh,Jr., Suspending the Antidumping Director or Investigation on Uranium from the required under 5 U.S.C. 553,or any for Acquisition Management and Russian Federation,61 FR 56665 other law,for this notice relating to Procurement Executive. (November 4,1996);and Amendment to public property,loans,grants benefits or [FR Doc.E8-2482 Filed 2-8-08;8:45 am] Agreement Suspending the contracts(5 U.S.C. 553(a)),a Regulatory BILLING CODE 3510-FA-P Antidumping Investigation on Uranium Flexibility Analysis is not required and from the Russian Federation,62 FR has not been prepared for this notice. DEPARTMENT OF COMMERCE 37879(July 15,1997).On July 31, 1998, the Department notified interested Executive Order 13132(Federalism) parties of an administrative change with International Trade Administration respect to the Suspension Agreement. It has been determined that this notice [A-821-802J See Agreement Suspending the does not contain policies with Antidumping Investigatio non Uranium Federalism implications as that term is Amendment to the Agreement from the Russian Federation,63 FR defined in Executive Order 13132. Suspending the Antidumping 40879 (July 31,1998). Paperwork Reduction Act Investigation on Uranium From the On November 27,2007,the United Russian Federation States and Russia initialed a draft These regulatory actions do not AGENCY:Import Administration, amendment to the Suspension impose any new reporting or International Trade Administration, Agreement.On December 4,2007,the recordkeeping requirements under the Department of Commerce. Department published the draft Paperwork Reduction Act. amendment in the Federal Register and EFFECTIVE DATE:February 1, 2008. Notwithstanding any other provisions of SUMMARY:The Department of Commerce invited comments from interested the law,no person is required to ("the Department")and the Russian 8parties,to be submitted by January 3, 200 respond to,nor shall any person be Federation's Federal Atomic Energy 2008. See Initialed Draft Amendment to subject to a penalty for failure to comply Agency("Rosatom")have signed an the Agreement Suspending the with a collection-of-information,subject amendment to the Agreement Antidumping Investigation on Uranium to the requirements of the Paperwork from the Russian Federation;Request q P Suspending the Antidumping for Comment, 72 FR 68124(December 4, Reduction Act(PRA),44 U.S.C. 3501 et Investigation on Uranium from the 2007).On December 17,2007,the seq.,unless that collection of Russian Federation("Suspension Department received initial comments information displays a currently valid Agreement").The amendment will on the draft amendment from Power OMB control number.The use of the allow the Russian Federation("Russia") Resources,Inc. and Crow Butte following family of forms has been to export Russian uranium products to Resources,Inc.On December 31,2007, approved by OMB under the following the U.S.market in accordance with the pursuant to a request by interested control numbers:(1)SF-424 Family: export limits and other terms detailed in parties,the Department extended the 0348-0041,0348-0044,4040-0003,and the amendment. comment period deadline until January 4040-0004; (2)SF-424 Research and FOR FURTHER INFORMATION CONTACT: 10,2008. See Extension of Time to Related Family:4040-0001;SF-424 Sally C.Gannon at(202)482-0162, Submit Comments Concerning the Individual Family:4040-0005; (3)SF- Import Administration,International Initialed Draft Amendment to the 424 Mandatory Family:4040-0002;and Trade Administration,U.S.Department Agreement Suspending the (4)SF-424 Short Organizational Family: of Commerce,14th Street&Constitution Antidumping Investigation on Uranium 4040-0003.The use of Forms SF-LLL Avenue,NW.,Washington,DC 20230. from the Russian Federation,72 FR and CD-346 are approved by OMB Background 74272 (December 31,2007).The under the control numbers 0348-0046 Department received comments from and 0605-0001,respectively. On October 30, 1992,the Department the following parties:Ad Hoc Utilities suspended the antidumping duty Group;AREVA S.A.and its affiliated Catalog of Federal Domestic Assistance investigation involving uranium from entities;Fuelco LLC;General Electric; Russia on the basis of an agreement by Louisiana Energy Services,L.P.;Nuclear This notice affects all of the grant and its government to restrict the volume of Energy Institute;Nukem,Inc.;Power cooperative agreement programs funded direct or indirect exports to the United Resources,Inc.,Crow Butte Resources, by the DOC.The Catalog of Federal States in order to prevent the Inc.,and Uranium Resources,Inc.; Domestic Assistance can be accessed on suppression or undercutting of price Progress Energy;United Steel,Paper the Internet under the DOC Grants levels of U.S. domestic uranium. See and Forestry,Rubber,Manufacturing, Management Web site at http:// Antidumping;Uranium from Energy,Allied-Industrial and Service www.cfda.gov. Kazakhstan,Kyrgyzstan,Russia, Workers International Union;USEC Inc. List of Subjects Tajikistan, Ukraine,and Uzbekistan; and United States Enrichment Suspension of Investigations and Corporation;and Westinghouse Electric Accounting,Administrative practice Amendment of Preliminary Company LLC. and procedures,Grants administration, Determinations,57 FR 49220(October On February 1,2008,after Grant programs-economic 30,1992). consideration of the interested party development,Grant programs-oceans, The Suspension Agreement was comments received,U.S. Secretary of atmosphere and fisheries management, subsequently amended,by agreement of Commerce Carlos M.Gutierrez and the Gransphogeams fisheries businesses, both governments,on March 11, 1994, Director of Russia's Federal Atomic Grant programs-technology,min programs-minority businesses, October 3,1996,and May 7, 1997. See, Energy Agency(Rosatom),S.V. respectively,Amendment to Agreement Kiriyenko,signed a finalized programs-telecommunications,Grant Suspending the Antidumping amendment to the Suspension Investigation on Uranium from the Agreement.The amendment allows for TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit I NTIA Certification Regarding Lobbying FORM CD-511 U.S.DEPARTMENT OF COMMERCE (REV 1-05) CERTIFICATION REGARDING LOBBYING Applicants should also review the instructions for certification included in the regulations before completing this form. Signature on this form provides for compliance with certification requirements under 15 CFR Part 28, New Restrictions on Lobbying." The certifications shall be treated as a material representation of fact upon which reliance will be placed when the Department of Commerce determines to award the covered transaction, grant, or cooperative agreement. LOBBYING Statement for Loan Guarantees and Loan Insurance As required by Section 1352, Title 31 of the U.S. Code, and The undersigned states, to the best of his or her knowledge implemented at 15 CFR Part 28, for persons entering into a grant, and belief, that: cooperative agreement or contract over$100,000 or a loan or loan guarantee over$150,000 as defined at 15 CFR Part 28, Sections In any funds have been paid or will be paid to any person for 28.105 and 28.110,the applicant certifies that to the best of his or her influencing or attempting to influence an officer or employee knowledge and belief,that of any agency,a Member of Congress,an officer or employee of Congress, or an employee of a Member of Congress in (1) No Federal appropriated funds have been paid or will be paid, connection with this commitment providing for the United by or on behalf of the undersigned,to any person for influencing or States to insure or guarantee a loan, the undersigned shall attempting to influence an officer or employee of any agency, a complete and submit Standard Form-LLL, "Disclosure Form Member of Congress in conncection with the awarding of any to Report Lobbying," in accordance with its instructions. Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, Submission of this statement is a prerequisite for making or and the extension, continuation, renewal, amendment, or entering into this transaction imposed by section 1352, title modification of any Federal contract, grant, loan, or cooperative 31, U.S.Code. Any person who fails to file the required state- agreement. ment shall be subject to a civil penalty of not less than$10,000 and not more than $100,000 for each such failure occurring (2) If any funds other than Federal appropriated funds have been on or before October 23, 1996, and of not less than $11,000 paid or will be paid to any person for influencing or attempting to and not more than $110,000 for each such failure occurring influence an officer or employee of any agency, a Member of after October 23, 1996. 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, "Disdosure 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 occurring on or before October 23, 1996, and of not less than $11,000 and not more than$110,000 for each such failure occurring after October 23, 1996. As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above applicable certification. NAME OF APPLICANT AWARD NUMBER AND/OR PROJECT NAME PRINTED NAME AND TITLE OF AUTHORIZED REPRESENTATIVE SIGNATURE DATE TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit J Special Conditions Addendum for Department of Commerce Vendor Contracts r�uN�ve$ �m 0 e �Y N t O THE TEXAS A&M UNIVERSTTY SYSTEM Supplemental Provision Addendum for Vendor Purchase Orders and Contracts Using American Recovery and Reinvestment Act of 2009 Funds The contract to which these Special Conditions are attached will be funded, in whole or in part, with American Recovery and Reinvestment Act of 2009 ("ARRA") funds. Specifically, this addendum pertains to and has special requirements of: CFDA No: 11.557 Grant No: NT10B1X5570107("Grant")to Texas A&M University("Recipient") Granting Agency: United States Department of Commerce("DOC"),National Telecommunications and Information Administration("NTIA") For: Broadband Technology Opportunities Program(`STOP"), entitled Recovery Act- Texas Pipes("Texas Pipes") By accepting this contract, Vendor agrees to the Supplemental Conditions set out herein and shall assure that all subcontracts and other contracts under this ARRA funded project contain these Special Conditions. In the event of a conflict between these Special Conditions, the contract, or any attachments or exhibits incorporated into and made a part of the contract,these Special Conditions shall control. 1. Compliance. This project is funded by the DOC as part Section 6001 of the ARRA. Vendors must comply with all pertinent legislation, executive orders, and policies that pertain to projects funded by ARRA, including but not limited to these Special Conditions. Vendors must obtain any required permits and comply with applicable federal, state, and municipal laws, codes and regulations for work performed under the Purchase Order to which this Addendum is attached. Any revisions to such provisions or regulations shall automatically become a part of these Special Conditions, without the necessity of either party executing any further instrument. Recipient (as well as any Sub-Recipients under the Grant) may provide written notification to Vendor of such revisions,but such notice shall not be a condition precedent to the effectiveness of such revisions. 2. ARRA Contracts and Subcontracts. Vendor shall include these Special Conditions in all of its contracts and subcontracts using ARRA funds, in whole or in part, and shall provide written notification of revisions hereto to all parties to such contracts or subcontracts. Vendor shall ensure that all subcontractors comply with applicable provisions of ARRA. 3. Conflict of Laws. In the event of a conflict between the laws of the State of Texas or these Special Conditions and ARRA,ARRA shall control. 4. Equal Employment Opportunity. Vendor shall comply with all applicable provisions of Executive Order("E.O.") 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR, 1964-1965 Comp., p. 339), as amended by E.O. 11375, and as supplemented by regulations at 41 CFR Part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." 5. Copeland "Anti-Kickback Act" (18 U.S.C. 874 and 40 U.S.C. 276c). The Anti-Kickback Act, as supplemented by Department of Labor regulations (29 CFR part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"), requires that all contracts and subgrants in excess of$2000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Anti-Kickback Act, which provides that each contractor or subrecipient shall SPECIAL CONDITIONS ADDENDUM FOR DOC -ARRA VENDOR CONTRACTS Page 2 of 5 be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which they are otherwise entitled. All suspected or reported violations shall be reported to the Federal awarding agency identified herein. 6. Davis-Bacon Wage Rate Requirements. ARRA §1606. The Davis-Bacon Act ("DBA") as amended (40 USC §276a to a-7; 29 CFR Parts 1, 3, 5, 6 and 7), requires that each contract over $2,000 to which the United States is a party, for the construction, alteration, or repair of public buildings or public works, shall require the minimum wages to be paid to various classes of laborers and mechanics employed under the contract. In accordance with Davis-Bacon, Vendor and its subcontractors shall pay all laborers and mechanics employed on this ARRA funded project at wage rates not less than those prevailing on projects of a character similar in the locality. Wage determinations issued by the U.S. Department of Labor under the Davis-Bacon and related Acts are available at: http://www.Lpo.gov/davisbacon/. 7. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333). Where applicable, all contracts awarded by recipients exceeding $100,000 for construction contracts, and contracts that involve the employment of mechanics or laborers, require compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR Part 5). Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1.5 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions that are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 8. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended. For contracts and subgrants of amounts in excess of$100,000, Vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency(EPA). 9. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors who apply or bid for an award exceeding $100,000 shall file the required certification under the Anti-Lobbying Amendment. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the Recipient. 10. Debarment and Suspension. A contract award with an amount expected to equal or exceed $25,000 and certain other contract awards (see 2 CFR 180.220) shall not be made to parties listed on the government-wide Excluded Parties List System ("EPLS"), in accordance with the OMB guidelines at 2 CFR part 180 that implement E.O. 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), "Debarment and Suspension." The EPLS contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under other statutory or regulatory authorities. [69 FR 26281, May 11, 2004, as amended SPECIAL CONDITIONS ADDENDUM FOR DOC -ARRA VENDOR CONTRACTS Page 3 of 5 at 70 FR 51879,Aug. 31, 2005]. Vendor certifies that they are not on the Excluded Parties List and will not subcontract with parties listed on the EPLS. 11. Whistleblower Protection. ARRA §1553. Vendor shall not discharge, demote or otherwise discriminate against an employee as a reprisal for disclosures by the employee of information that the employee reasonably believes is evidence of: (a) gross mismanagement of a contract or grant relating to ARRA funds; (b) a gross waste of ARRA funds; (c)a substantial and specific danger to public health or safety related to the implementation or use of ARRA funds; (d) an abuse of authority related to implementation or use of ARRA funds; or (e) a violation of law, rule, or regulation related to a contract, including the competition for or negotiation of a contract or grant, awarded or issued relating to ARRA funds. Vendor specifically acknowledges that Vendor and its employees are aware of and shall abide by the provisions of ARRA §1553. Vendor shall include the language and requirements of this subsection ("Whistleblower Protection under §1553 of the ARRA") in all of its contracts and agreements with employees, subcontractors and anyone else who performs work on behalf of Vendor. Vendor shall post a notice of the rights and remedies available to employees under ARRA §1553 in all workplaces where employees perform work that is funded in whole or in part by money authorized under the ARRA. Copies of suitable notices are attached hereto and further copies can be obtained at: http://www.recovery.gov/Contact/ReportFraud/Pages/Report Fraud.aspx 12. False Claims Act, 31 U.S.C. §§3729-3733. Office of Management and Budget (OMB) Memorandum M-09-15 §5.9. Vendor shall promptly refer to an appropriate Federal Inspector General any credible evidence that a principal, employee, agent, contractor, subcontractor 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. 13. Access of Government Accountability Office.ARRA§902. Each contract awarded using ARRA funds must include a provision that provides the United States Comptroller General and representatives thereof with the authority to: 1) examine any records of the Vendor or any of its subcontractors, or any state or local agency administering such contract, that directly pertain to, and involve transactions relating to, this contract or any contract or subcontract using ARRA funds; and 2) interview any officer or employee of the Vendor or any of its subcontractors, or of any state or local government agency administering the contract, regarding such transactions. Accordingly, the Comptroller General and representatives thereof shall have the authority and rights as provided under Section 902 of ARRA with respect to this contract, which is funded with ARRA funds. Section 902 further states that nothing in that section shall be interpreted to limit or restrict in any way any existing authority of the Comptroller General. 14. Authority of Inspector General.ARRA§1515. Section 1515(a)of ARRA provides that, for each contract or grant awarded using ARRA funds, any representative of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.), has the authority to: 1) examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local agency administering such contract, that pertain to, and involve transactions relating to,the contract, subcontract, grant, or subgrant; and SPECIAL CONDITIONS ADDENDUM FOR DOC -ARRA VENDOR CONTRACTS Page 4 of 5 2) interview any officer or employee of the contactor, [subcontractors], grantee, subgrantee, or any [state or local government] agency [administering the contract], regarding such transactions. Accordingly, Vendor agrees that representatives of the Inspector General have the authority to examine any record and interview any employee or officer of the Vendor, its subcontractors, or other firms working on this contract. Section 1515(b) further provides that nothing in that section shall be interpreted to limit or restrict in any way any existing authority of an Inspector General. 15. Buy American Requirement - Construction. ARRA §1605. The ARRA requires that all iron, steel and manufactured goods used in any ARRA project for the construction, alteration, maintenance, or repair of a public building or public work shall be produced in the United States in a manner consistent with United States obligations under international agreements. This requirement can be waived only by the awarding Federal Agency in limited situations. However, in accordance with the Limited Waiver Section 1605 of the Recovery Act, the Secretary of Commerce has granted a limited waiver of the Recovery Act's Buy American requirements with respect to certain broadband equipment that will be used in projects funded under the BTOP. A description of this equipment is included in the Notice of Waiver published in the Federal Register at 74 FR 31410(July 1, 2009). As published the limited waiver currently applies to: • Broadband Switching Equipment — Equipment necessary to establish a broadband communications path between two points. • Broadband Routing Equipment — Equipment that routes data packets throughout a broadband network. • Broadband Transport Equipment — Equipment for providing interconnection within the broadband provider's network. • Broadband Access Equipment — Equipment facilitating the last mile connection to a broadband subscriber. • Broadband Customer Premises Equipment and End-User Devices — End-user equipment that connects to a broadband network. • Billing/Operations Systems — Equipment that is used to manage and operate a broadband network or offer a broadband service. Note that this list does not include fiber optic cables,coaxial cables, celltowers,and other facilities that are produced in the United States in sufficient quantities to be reasonably available as end products. IN OPERATING UNDER THIS ARRA PROJECT, VENDOR AGREES TO NOTIFY RECIPIENT OR SUB-RECIPIENT IF NEEDING TO UTILIZE ANY IRON, STEEL OR MANUFACTURED GOODS THAT ARE NOT PRODUCED IN THE UNITED STATES AND THAT ARE NOT SUBJECT TO A NOTICE OF WAIVER. 16. Fixed Price – Competitively Bid. ARRA §1554. Recipients and Subrecipients will, to the maximum extent possible, award subcontracts as fixed-price subcontracts under this Contract using competitive bid procedures. 17. Reporting. ARRA§1512. Recipient or Subrecipient may require, and Vendor agrees to provide if requested, reports and other employment information as evidence to document the number of jobs created and/or retained by this project under Recipient or Subrecipient's reporting requirements. No direct payment shall be made to Vendor for providing any reports required under these Special Conditions, as the cost of producing such reports shall be deemed included in the contract price. SPECIAL CONDITIONS ADDENDUM FOR DOC -ARRA VENDOR CONTRACTS Page 5 of 5 18. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Purchase Order with Recipient or Subrecipients under the Grant. Recipient or Subrecipients may terminate the Purchase Order upon 30 days prior written notice if the default is not cured within five calendar days following the date of notice. This remedy will be in addition to any other remedy available to Recipient or Subrecipients under the Purchase Order, at law or in equity. Agreed to: Vendor: By: Name: Title: Address: Date: Federal Employer Identification Number: Dun and Bradstreet Data Universal Numbering System (DUNS)Number: Know Your Rights Under the Recovery Act! Did you know? The American Recovery and Reinvestment Act of 2009 ' provides protections for certain employees of non-federal employers who make specified disclosures relating to possible fraud, waste and/or abuse or Recovery Act funds. Who is protected? Employees of non-federal employers receiving recovery funds. This includes State and local governments, contractors, subcontractors, grantees or professional membership organizations acting in the interest of recovery fund recipients. How are Whistleblowers Protected? You cannot be discharged, demoted or otherwise discriminated against as a reprisal for making a protected disclosure. What types of disclosures are protected? The disclosure must be made by the employee to the Recovery 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, a court or grand jury, or the head of a federal agency or his/her representatives. The disclosure must involve information that the employee_believes°is evidence of • gross mismanagement of an agency contract it grant relating to recovery funds; • a gross waste of recovery funds; • a substantial and specific danger to public health-or safety related;,to the implementation or use of recovery funds; • an abuse of authority related to the implementation.or use of recovery funds; or • a violation of law, rule, or regulation related to a} ency contract or grant awarded or issued relating to recovery funds. Take Action! Log on to Recovery.gov for more information about your rights and details on how to report at www.recovery.gov. 1 Section 1553 of Division A,Title XV of the American Recovery and Reinvestment Act of 2009, P.L. 111-5 MI I RECOvERy AcT FRAup HoTLINE r'' ,,, . . ti IF YOU HAVE KNOWLEDGE OR ALLEGATIONS OF FRAUD WASTE, ABUSE OR MISMANAGEMENT , INVOLVING STIMULUS SPENDING, YOU CAN: • CALL THE RECOVERY BOARD FRAUD HOTLINE AT 1-877-392-3375 o FAX 111 RECOVERY BOARD FRAUD HOTLINE AT 1-877-329-3922 }` s v , i o 44 SUBM I \ILL T A SECURE COMPLAINT FORM ONLINEL�1" , , r `. � RECOVERY.GOV/FWA 'f' 4 ' , .. - r OR WRITE: RECOVERY ACCOUNTABILITY AND r sg F TRANSPARENCY BOARD � . P.O. BOX 27545 WASHINGTON, DEC 20038-7958 7411i f Calls Can Be Made A non ;n usly and Con fidentiall TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit K BTOP Recipient Guidance on Signage • * BROADBANDUSA w* CONNECTING AMERICAS COMMUNITIES FACT SHEET Broadband Technology Opportunities Program Recipient Guidance on Signage Requirements Overview The purpose of this document is to provide guidance for satisfying the signage requirements placed on Broadband Technology Opportunities Program(BTOP)award recipients with construction projects. In particular,recipients should focus on the bolded sections below that contain updated guidance. Signage Requirements BTOP award recipients that have projects requiring"construction"are subject to a Special Award Condition that states: "The recipient is responsible for constructing,erecting,and maintaining in good condition throughout the construction period a sign(s)satisfactory to the NTIA that identifies the project and indicates that the project is Federally funded.The NTIA also may require that the recipient maintain a permanent plaque or sign at the project site with the same or similar information." Producing and displaying signage—and specifically displaying the Recovery Act logo on signage—is one of several ways to provide openness and transparency to the public about how Federal funds are being spent. However,in order to be"satisfactory to the NTIA,"it is important that the costs associated with signage are reasonable and limited.This means that signs should not be produced or displayed if doing so results in unreasonable cost or expense.(See Frequently Asked Questions below). For purposes of this signage requirement, "construction"projects are those in which the major purpose of the award is construction, as defined in Chapter 17 of the Updated Department of Commerce Interim Grants Manual.Alteration of facilities incidental to a non-construction purpose is not considered construction. In general, projects classified as Infrastructure or Comprehensive Community Infrastructure(CCI)are subject to this signage requirement through the special award condition cited above. Some Public Computer Center(PCC)projects may be subject to this requirement through a special award condition to the extent they involve construction. Projects classified as Sustainable Broadband Adoption are not subject to this signage requirement. To the extent that an award recipient must display signage, adherence to the following signage specifications is required by NTIA.At construction sites, recipients may satisfy the signage requirements by using the Primary or BroadbandUSA Emblems shown here and following all guidelines for size,clear space,and color. Complete guidelines are provided in the Information and Tools sections of this document. jjGOV * * .. *...G, BROADBANDUSA 4. CONNECTING AMERICAS COMMUNITIES BroadbandUSA Emblem Primary Emblem Fact Sheet:BTOP Signage Requirements and Recipient Guidance—Version 4 1 September 1,2010 ***"""` `" BROADBANDUSA .tom CONNECTING AMERICAS COMMUNITIES Summary: Recovery Act Logo Requirements Recipients must meet the following minimum requirements when developing Recovery Act display signage for BTOP construction sites: • Recipients must use the Primary Emblem or the BroadbandUSA Emblem in construction signage. • The emblem must be at least six inches or larger in diameter. • Recipients must not change proportions of the emblem. • If using a color emblem,use the colors specified in the Information and Tools section. • Always leave clear space surrounding the logo equal to half of the logo's radius. Information and Tools Recipients can use either of the two approved Recovery Act"marks"shown on page 1.The BroadbandUSA Emblem incorporates the basic Recovery Act logo and is acceptable to meet signage requirements. Remember the following when using the emblems: • Provide this fact sheet to your graphic designer or signage vendor.The details and tools provided here should provide everything needed to use the emblems correctly. • Altering,distorting,or recreating the"marks"in any way is not permitted. Layout and design of signs and communication materials will vary,so care must be taken when applying the emblem. Logo Artwork • Emblem artwork is available on the BroadbandUSA.gov website. Copy www2.ntia.doc.gov/ManagementResources into a browser to access camera-ready, high-resolution emblem artwork suitable for use in materials. • The Primary Emblem and BroadbandUSA Emblem are available in TIF, JPEG and EPS formats. • Do not alter,distort,or recreate the emblems in any way. Color Specifications • Use the exact colors listed below when reproducing the emblem in full color. CMYK values are used for print publications and RGB and HEX#values are used for on-screen applications. • Do not change the colors of either emblem or use screens or tints of any color in any part of the logo. • Recipients can also reproduce either emblem in black-and-white or in a one-color version. Use the"Navy"color indicated below when reproducing emblems in one color. COLOR CMYK RGB HEX# Navy 00/00/00/00 0/51 /102 003366 Red 30/100/100/50 102/0/0 660000 Fact Sheet:BTOP Signage Requirements and Recipient Guidance—Version 4 2 , _ September 1,2010 0-`' BROADBANDUSA CONNECTING AMERICA'S COMMUNITIES COLOR CMYK RGB HEX# Green 65/25/ 100/7 103/144/62 67903E Light Blue 67/37/6/00 89/141 /192 598DC0 Clear Space Primary Emblem • Always leave blank space surrounding the logo equal to half of the logo's radius. • In the illustration below,the clear space is shown as the value"X,"where"X"is equal to half of the radius.The minimum clear space must always be at least"X"on all sides of the emblem. -x- 1 x Cgi* X=r/z Circle Radius i - x x J BroadbandUSA Emblem • Please provide an amount of space surrounding the emblem equal to or larger than the height of the 'BroadbandUSA'emblem lettering, as shown below: X *' BROADBANDUSA X CONNECTING AMERICA'S COMMUNITIES X Frequently Asked Questions Does NTIA have requirements regarding signage size? NTIA does not specify sign size but does require that the Recovery or BroadbandUSA Emblem must be at least six inches in diameter. Fact Sheet:BTOP Signage Requirements and Recipient Guidance—Version 4 3 ' , September 1,2010 BROADBANDUSA Nia Is* CONNECTING AMERICAS COMMUNITIES Does NTIA have requirements regarding placement of the Recovery logo on signage OR the overall design of signage? Recipients may adapt placement of the logos and may design signs to be suitable to the specific project on which they are displayed, but may not alter the design and colors of the logos themselves. Can I use additional text on my signage? Signs should be designed to maximize visibility of the logos and minimize any accompanying text. In addition, minimal text may be included on the sign,for example,"This project funded by"preceding the Recovery Act logo. Am I required to use the Department of Commerce seal on signage? No,the Commerce seal is not required.A grantee should not use the Department of Commerce's seal or NTIA's logo without written express permission from NTIA to do so. Does NTIA require placement of signs at all construction sites? Yes,provided that the costs associated with signage are reasonable and limited.Signs should not be produced or displayed if doing so results in unreasonable cost or expense. NTIA has determined that where construction is taking place in a remote area with few, if any, passersby,then the costs of producing a sign outweigh the benefits of displaying signage. For example,signs need not be posted at wireless towers unless they are within or adjacent to areas frequently accessed by passersby.Signs at construction projects should be placed where they are visible to passersby and to customers approaching the site.The recipient may also wish to consider placing signage on work vehicles when construction involves installation or deployment of buried or aerial fiber optic facilities,and where the construction may take place over long transmission rights of way. Can I pay for signage costs with grant funds? The cost of producing signage and displaying Recovery logos is an eligible project administration cost in BTOP grants.At the same time,costs associated with signage should be reasonable and limited.Signs should not be produced or displayed if doing so results in unreasonable cost or expense. Do I need to document compliance with the signage requirements? Yes. Recipients should maintain documentation of their compliance with the signage requirements set forth in their special award conditions,so that this documentation is available for audit purposes.This documentation should include a list of all construction sites,a description of where the signs are displayed, and cost information. Fact Sheet:BTOP Signage Requirements and Recipient Guidance—Version 4 4 September 1, 4rim TEXAS PIPES SUB-RECIPIENT GRANT AGREEMENT Exhibit L NTIA BTOP Buy American Notice 74 FR 31410 31410 Federal Register/Vol. 74, No. 125/Wednesday, July 1, 2009/Notices DEPARTMENT OF COMMERCE none of the funds appropriated by the overwhelmingly burdensome as to deter Act,including the funds that have been participation in the program.Requiring National Telecommunications and dedicated to grants under BTOP,"may a BTOP applicant to request a waiver on Information Administration be used for a project for the a case-by-case basis also would be such Broadband Technology Opportunities construction,alteration,maintenance,or an administrative burden on the gy pportunities repair of a public building or public applicant as to discourage participation Program work unless all of the iron,steel,and in the program and would increase the AGENCY:National Telecommunications manufactured goods used in the project agency's time and costs for processing and Information Administration,U.S. are produced in the United States."2 BTOP applications for broadband Department of Commerce. Subsections 1605(b)and(c)of the infrastructure projects.Thus, ACTION:Buy American Exception under Recovery Act authorize the head of a implementing the BTOP without a the American Recovery and Federal department or agency to waive limited programmatic waiver Reinvestment Act of 2009. the Buy American provision by finding encompassing broadband network that:(1)applying the provision would components would jeopardize the SUMMARY:The National be inconsistent with the public interest; success of the program and undermine Telecommunications and Information (2)the relevant goods are not produced the broadband initiative. Administration(NTIA)hereby provides in the United States in sufficient and First,much of the finished products notice that on June 19,2009,the reasonably available quantities and of a used to manage and operate broadband Secretary of Commerce granted a satisfactory quality;or(3)the inclusion infrastructure and offer broadband limited waiver of section 1605 of the of the goods produced in the United service are manufactured outside of the American Recovery and Reinvestment States will increase the cost of the United States.The manufacturing Act of 2009(Recovery Act),Pub.L.No. project by more than 25 percent.If the supply chain varies by product and 111-5,123 Stat. 115,303 (2009)with head of the Federal department or changes constantly due to the influence respect to certain broadband equipment agency waives the Buy American of global supply and demand.The result that will be used in projects funded provision,then the head of the is a very competitive and complex under the Broadband Technology department or agency is required to production landscape with components Opportunities Program(BTOP). publish a detailed justification in the and end products being manufactured DATES:July 1,2009. Federal Register.Finally,section and assembled in a large number of ADDRESSES:Broadband Technology 1605(d)of the Recovery Act states that countries.While,arguably,the Secretary Opportunities Program,Office of the Buy American provision must be of Commerce could have relied on the applied in a manner consistent with the "non-availability"exception for Telecommunications and Information pP granting a waiver,the burden placed on Applications,National United States'obligations under g g p international agreements. the Department of Commerce in Telecommunications and Information sourcing and evaluating the availability Administration,U.S.Department of II.PUBLIC INTEREST FINDING of each component of broadband Commerce,Room 4812, 1401 The Secretary of Commerce has equipment would be significant,and the Constitution Avenue,NW,Washington, determined that,as applied to certain task of sourcing and evaluating would DC 20230. broadband equipment used in a BTOP be difficult to complete given the speed FOR FURTHER INFORMATION CONTACT: project,application of the Buy with which Congress has told NTIA to Broadband Technology Opportunities American provision would be allocate the BTOP funds.In addition, Program,telephone:(202)482-5032. inconsistent with the public interest.3 A requiring public entities to document SUPPLEMENTARY INFORMATION:In modern broadband network is generally the origin of broadband equipment and accordance with section 1605(c)of the composed of the following components: their components in order to determine Recovery Act and section 176.80 of Title broadband switching,routing,transport, whether they fit within the scope of the 2 of the Code of Federal Regulations, access,customer premises equipment, Buy American provision would severely NTIA hereby provides notice that on end-user devices,and billing/operations complicate those applicants'ability to June 19,2009,the Secretary of systems.The Buy American provision apply for funds and would place an Commerce granted a limited waiver of would prohibit NTIA from awarding a undue burden on State and local section 1605 of the Recovery Act(Buy BTOP grant to a public applicant unless governments.Taken as a whole,these American provision)with respect to that applicant could certify that each burdens would cause delays and would certain broadband equipment that will element of each broadband network likely thwart the goal of Congress to be used in projects funded under component containing iron,steel,and "establish and implement the(BTOP) BTOP.1 The basis for this waiver is a manufactured goods are produced in the grant program as expeditiously as public interest determination pursuant United States.As explained more fully practicable,"and the Recovery Act's to section 1605(b)(1)of the Recovery below,it would be difficult,if not requirement that NTIA to obligate all Act. impossible,for a BTOP applicant to funds under BTOP by September 30, I.BACKGROUND have certain knowledge of the 2010.4 manufacturing origins of each Second,a limited waiver will help The Recovery Act appropriates$4.7 component of a broadband network and facilitate the construction of modern billion to NTIA to establish BTOP, the requirement to do so would be so broadband networks—an essential through which NTIA will provide grants component of the Recovery Act. for broadband initiatives throughout the 2 Because the Buy American limitation applies Applicants to BTOP must have the United States,including projects in only to public works and public buildings, flexibility to incorporate the most unserved and underserved areas. completely private projects need not obtain a technically-advanced components into Section 1605(a)of the Recovery Act,the waiver to utilize iron,steel,and manufactured their infrastructure,and a limited goods produced outside of the United States.Note, Buy American provision,states that however,that public-private partnerships are waiver gives them the ability to considered public for purposes of the Buy 1 Recovery Act§1605,123 Stat.at 303;2 C.F.R. American limitation. 4 See Recovery Act§6001(d)(1)-(2),123 Stat.at §176.80. 3 See Recovery Act§1605(b)(1),123 Stat.at 303. 513. Federal Register/Vol. 74, No. 125/Wednesday, July 1, 2009/Notices 31411 incorporate the latest technologies. a waiver will be available in BTOP Background Third,consistent with the Recovery Act, Application Guidelines. a limited waiver will help stimulate job On May 8,2009,NMFS published a growth for construction workers, Dated:June 26,2009. Notice of Intent to Prepare an Anna M.Gomez, technicians,equipment designers, Environmental Impact Statement(EIS) Acting Assistant Secretary for engineers,and others who will operate for Sea Turtle Conservation and the broadband infrastructure.Fourth, Communications and Information. Recovery in Relation to the Atlantic while the Office of Management and [FR Doc.E9-15514 Filed 6-30-09;8:45 am] Ocean and Gulf of Mexico Trawl Budget has clarified which countries BILLING CODE 3514-60 S Fisheries and to Conduct Public would be exempt from the Buy Scoping Meetings(74 FR 21627).The American provision,some of the key DEPARTMENT OF COMMERCE Notice announced that NMFS is countries that produce broadband developing rulemaking to address sea equipment would not be exempt. National Oceanic and Atmospheric turtle bycatch in state and Federal trawl Finally,the broadband industry is very Administration fisheries under the Endangered Species dynamic and global,and equipment can Act.The notice also announced that change over the course of a buildout. RIN 0648-XPO4 NMFS would conduct five public Subjecting public applicants for BTOP scoping meetings.NMFS has now funds to the Buy American provision Notice of Intent to Prepare an p g g ultimately would slow broadband Environmental Impact Statement for conducted those scoping meetings and deployment and undermine the Sea Turtle Conservation and Recovery has been asked to extend the comment broadband initiatives. in Relation to the Atlantic Ocean and period for an additional 30 days. Gulf of Mexico Trawl Fisheries and to NMFS is asking for public comment III.WAIVER Conduct Public Scoping Meetings on the alternatives outlined in the On June 19,2009,based on the public AGENCY:National Marine Fisheries scoping document.NMFS will evaluate interest finding discussed above and Service(NMFS),National Oceanic and a range of alternatives in the Draft EIS pursuant to section 1605(c),the Atmospheric Administration(NOAA), for implementing phase one of the Secretary granted a limited waiver of the Commerce. Strategy to reduce sea turtle bycatch and Recovery Act's Buy American mortality in trawl fisheries along the requirements with respect to BTOP ACTION:Notice;Extension of public Atlantic Coast.In addition to evaluating used for the following essential comment period. g g the status quo,NMFS will evaluate a components of a modern broadband SUMMARY:In response to requests from range of alternatives including which infrastructure: members of the public,NMFS extends Atlantic trawl fisheries will be •Broadband Switching Equipment— the public comment period on the regulated,the temporal and spatial Equipment necessary to establish a notice of intent to prepare an aspects of the regulation and the broadband communications path Environmental Impact Statement(EIS) potential changes to the operation of between two points. to comply with the National Atlantic trawl fisheries.These •Broadband Routing Equipment— Environmental Policy Act(NEPA)by alternatives could include time and area Equipment that routes data packets assessing potential impacts resulting closures,requiring the use of TEDs in throughout a broadband network. from the proposed implementation of the summer flounder,whelk,croaker •Broadband Transport Equipment— new sea turtle regulations in the and weakfish flynet and calico scallop Equipment for providing Atlantic and Gulf of Mexico trawl trawls for the entire Atlantic Coast,as interconnection within the broadband fisheries.The comment period is now well as combination of spatial and provider's network. extended for an additional 30 days until temporal options.In terms of spatial •Broadband Access Equipment— August 10,2009. options,sea turtles in U.S.waters range Equipment facilitating the last mile DATES:Comments will be accepted until as far North as Georges Bank and the connection nectiion t o broadband subscriber. August 10,2009.Comments received or Gulf of Maine,but may be less likely to postmarked after that date will be interact with a fishery towards the Equipment and End-User Devices— considered to the extent practicable. northern extent of this range.NMFSwill End user equipment that connects to a ADDRESSES:Written comments on the likely evaluate several alternatives broadband network. Y •Billing/Operations Systems— scope of the EIS should be sent to related to the northern/northeastern Equipment that is used to manage and Alexis.Gutierrez @noaa.gov, 1315 East extent of any required gear modification West Highway,Silver Spring,MD or other re ulation. Similarl several operate a broadband network or offer a g Y broadband service. 20910;301-713-2322 or fax 301-713- alternatives will likely be evaluated for Note that this list does not include 4060.Additional information,including the temporal extent of when a regulation fiber optic cables,coaxial cables,cell the Scoping document,can be found at: would be in effect,as sea turtles migrate h ttp://www.nm fs.noaa.gov/pr/species/ towers,and other facilities that are north along the Atlantic coast as waters turtles/stra tegy.h tm. produced in the United States in warm each year,and are only present in sufficient quantities to be reasonably FOR FURTHER INFORMATION CONTACT: more northern areas during the warmer Dennis Klemm(ph. 727-824-5312,fax available as end products.To the extent 727_824-5309,email months.The public presentation scoping document, that an applicant wishes to use Dennis.Klemm@noaa.gov),Pasquale the ice of Intent oint pentati and the equipment that is not covered by this g Notice of I can be found at http:// waiver,it may seek a waiver on a case- Scida(ph.978-281-9208,fax 978-281– www.nmfs.noaa.gov/pr/species/turtles/ by-case basis as part of its application 9394,email Pasquale.Scida @noaa.gov), Y p pp Alexis Gutierrez(ph. 301-713-2322,fax strategy.htm.The public comment for BTOP funds,stating the statutory period is now extended 30 days and exemption upon which it is relying and 301-713-4060,email exem p Y p p Y g Alexis.Gutierrez@noaa.gov). will close on August 10,2009. its rationale for receiving a waiver. Further information on how to apply for SUPPLEMENTARY INFORMATION: Exhibit M Cost-Sharing Report Format TAMU Reference Number: 425428 Name: City of Corpus Christi Address: 1201 Leopard St.Corpus Christi Tx.78401 (Mailing Address:P.O.Box 9277 Corpus Christi Tx.78469) Tax Identification Number: 74-6000574 Report Number. Final Report: X Yes No Time Period: June 13,2011—September 30,2013 The following was contributed for the referenced account: Description Amount Applicable hours with City crew of 5 used to fulfill the completion of the Agreement using 80/20 rule established by Texas A&M(8hrs/day x 5 crew x 65 days=2600 man hours)is 2080(80%of 2600=2080).At the$75/hr rate utilized by Texas A&M: 2080 x$75= $156,000 Conduit to Flour Bluff $23,327.50 PO 267920 Dead End for Aerial fiber $719.40 Inv. 15676 Anchor Installs $475.00 PO 274802 Dielectric supports $739.80 Doc.340541925 Wireless bridge(Holly to Flour Bluff) $6,846.00 PO 289035 ME Switch at Holly $11,739.35 PO 254296 ME Switch at Flour Bluff $11,844.98 PO 264096 Fiber for new runs $25,740.00 PO 273913 Fiber for new runs $11,920.00 PO 250436 Trailer Compressor for fiber installs $12,284.00 PO 255706 Generator for fiber truck $4,247.55 PO 274441 Network upgrades(services) $15,472.00 PO 259550 Network upgrades(services) $17,619.00 PO 260559 ME Switch(OSO,NorthWest,Tuloso) $25,655.09 PO 261521 (NOTE:3/5 of PO applied) Total Match $324,629.67 Required Match $322,590.00 (Accounting documents to support the cost-sharing contribution are attached.) CERTIFICATION: I certify to the best of my knowledge and • lief . r this report is in accordance with the terms and conditions of the Agreement dated , • Signature: ./"L.", /AAAAA■11 /�/.Wt Name/Title: Michael Armstrong,CIO,Director of MIS Date: November,26,2013 Mail Completed Form To: The Texas A&M University System Office of Sponsored Research Services 400 Harvey Mitchell Parkway South Suite 300 College Station,Texas 77845-4375